Citation Nr: 1335207 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 07-11 490 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran served on active duty from February 1969 to October 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. Jurisdiction over the appeal has since been transferred to the RO in Des Moines, Iowa. In a January 2009 decision, the Board "reopened" the claim of entitlement to service connection for hepatitis C and remanded the underlying merits of the claim for additional development. In May 2011 and October 2012, the claim was again remanded. FINDING OF FACT The Veteran's currently diagnosed hepatitis C was first identified many years after service and is not shown to be related to his military service, to include his alleged in-service risk factors. CONCLUSION OF LAW The Veteran does not have hepatitis C that is the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 101, 1110, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Notice and Assistance The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. They also require VA to notify the claimant and the claimant's representative of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). As part of the notice, VA is to specifically inform the claimant and the claimant's representative of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The VCAA notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the instant case, the Board finds that letters dated in February 2004, March 2009, May 2011, and October 2012 provided the Veteran with notice that fulfills the provisions of 38 U.S.C.A. § 5103(a), including notice of the laws and regulations governing disability ratings and effective dates as required by the Court in Dingess, supra. The Veteran has not disputed the contents of the VCAA notice in this case. Further, the Board finds that the above cited notice letters comply with the requirements of 38 U.S.C.A. § 5103(a), and afforded the Veteran a meaningful opportunity to participate in the development of his claim. As to any error with respect to the timing of notice, the present matter was readjudicated by way of a June 2013 supplemental statement of the case (SSOC). Thus, any error with respect to the timing of notice was effectively cured in this case. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (holding that timing error can be effectively "cured" by providing any necessary VCAA notice followed by a readjudication of the claim). Thus, the Board finds that the duty-to-notify requirements under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) were satisfied. The Board also finds that VA has adequately fulfilled its obligation to assist the Veteran in obtaining the evidence necessary to substantiate his claims. Pertinent evidence includes the Veteran's service treatment records (STRs), service personnel records, post-service treatment records from Saint Lukes Regional Medical Center and Mercy Medical Center, records from the Social Security Administration (SSA), and, in compliance with the Board's prior remand, VA treatment records from the Sioux Falls, South Dakota, and Omaha, Nebraska, VA Medical Centers (VAMCs). The Board notes that the agency of original jurisdiction (AOJ) attempted to obtain any outstanding records pertaining to treatment of the Veteran from the Minneapolis, Minnesota, VAMC, but was informed in November 2012 that no such records existed at that facility. The Veteran was notified of the unavailability of these records in the June 2013 SSOC. The Board thus finds that all available evidence has been obtained and that no further action is necessary to ensure compliance with the terms of its earlier remand. See 38 U.S.C.A. § 5103A(b); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Stegall v. West, 11 Vet. App. 268 (1998) (requiring compliance with remand terms). The Board also finds that the medical evidence of record is adequate for the Board to rely upon in this case. The Veteran was provided with multiple VA examinations in connection with his claim. The Board finds that the examination reports, along with the other evidence of record, are sufficient to allow for evaluation of the Veteran's claim. Notably, in April 2013, a VA examiner conducted a thorough examination of the Veteran and noted his hepatitis C risk factors. The examiner also reviewed the claims folder and took a detailed history from the Veteran prior to providing an opinion regarding the likely origins of the Veteran's hepatitis C. The examination report contains sufficient evidence by which to evaluate the Veteran's claim of service connection and the Board finds that the examiner's opinion is supported by an adequate rationale. Thus, in compliance with terms of the Board's earlier, the Board has properly assisted the Veteran by affording him an adequate VA examination in connection with his claim of service connection for hepatitis C. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stegall, supra. II. Analysis The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). Alternatively, for chronic diseases, as defined by regulation and of which hepatitis C is not one, shown in service, the second and third elements of service connection may be established through demonstrating chronicity or continuity of symptomatology in accordance with 38 C.F.R. § 3.303(b). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (38 C.F.R. § 3.303(b) only applies to the listed chronic disabilities in 38 C.F.R. § 3.309(a)); Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). The Veteran contends that he has hepatitis C as a result of his active military service. Specifically, he contends that his hepatitis C is a result of being exposed to blood in service while loading wounded and dead soldiers onto aircraft as a cargo handler and serving in graves registration. He also alleges giving blood monthly, engaging in intranasal cocaine use and intravenous drug use, having a number of sexual partners, sharing toothbrushes, having multiple sex partners, and getting tattooed. The Board notes that medically recognized risk factors for hepatitis C include: (a) transfusion of blood or blood product before 1992; (b) organ transplant before 1992; (c) hemodialysis; (d) tattoos; (e) body piercing; (f) intravenous drug use (with the use of shared instruments); (g) high-risk sexual activity; (h) intranasal cocaine use (also with the use of shared instruments); (i) accidental exposure to blood products as a healthcare worker, combat medic, or corpsman by percutaneous (through the skin) exposure or on mucous membrane; and (j) other direct percutaneous exposure to blood, such as by acupuncture with non-sterile needles, or the sharing of toothbrushes or shaving razors. See VBA Training Letter 211A (01-02), dated April 17, 2001. In addition to the general statutory and regulatory legal authority governing service connection claims, a VA Fast Letter issued in June 2004 (FL 04-13, June 29, 2004) identified "key points" that included the fact that hepatitis C is spread primarily by contact with blood and blood products, with the highest prevalence of hepatitis C infection among those with repeated, direct percutaneous (through the skin) exposure to blood (i.e., intravenous drug users, recipients of blood transfusions before screening of the blood supply began in 1992, and hemophiliacs treated with clotting factor before 1987). It was concluded in FL 04-13 that the large majority of hepatitis C infections can be accounted for by known modes of transmission, primarily transfusion of blood products before 1992, and injection drug use. It also noted that transmission of hepatitis C virus with air gun injections was "biologically plausible," notwithstanding the lack of any scientific evidence of documented cases of air-gun infection. The Fast Letter noted that it was "essential" that the report upon which the determination of service connection is made includes a full discussion of all modes of transmission and, if applicable, a rationale as to why the examiner believes the air gun was the source of the hepatitis C. In the instant case, the Veteran's medical records indicate a current diagnosis of hepatitis C. Post-service treatment records starting in 1999 document the Veteran's complaints and treatment for hepatitis C. The Veteran's STRs reveal that he had a tattoo on his left upper arm prior to entering service. In August 1970, the Veteran was treated for gonoccal urethritis. Thereafter, in February 1971, the Veteran was treated with tetracycline for a penile rash, at which time he reported having intercourse six days earlier. He was treated for similar symptoms in March 1971. However, the Veteran's STRs are negative for any complaints, treatment, or symptoms related to hepatitis, and do not indicate a diagnosis of hepatitis in service. The Veteran's STRs for evidence of receiving a tattoo in service, drug use, being treated more than three times for a venereal disease (VD), or having a history of blood exposure while on active duty. Notably, during his October 1971 separation examination, the Veteran failed to report a history of blood exposure, drug use, or hepatitis symptoms and his examination was normal. Regarding the Veteran's alleged exposures in service, the Board notes that his service personnel records list his occupational specialty as cargo handler and signalman while serving in the Republic of Vietnam from March 1970 to October 1971. The do not, however, contain any indication that the Veteran was ever a graves registration specialist or a medic, or that he engaged in any other occupational specialty that would place him in contact with wounded and dead soldiers. Regardless, however, of whether the Veteran's lay statements are supported by the record, the Veteran is competent to testify as to his duties and activities in service, which assertions have identified a number of medically recognized risk factors for hepatitis C. As noted above, the Veteran has been afforded several VA examinations in connection with his claim, the report of which shows that at the time of the October 2001 VA examination, the Veteran stated that he had initially been diagnosed as having hepatitis C in December 1999. He noted that a liver biopsy had not been performed and that he was not on medical therapy for hepatitis C, and he was then presently found to be asymptomatic. In commenting on the risk factors recorded on an earlier May 1999 hepatitis C screening form, the Veteran stated that he did not recall ever having received a blood transfusion, but that he was exposed to blood in service while assisting the wounded in Vietnam. He also reported intranasal cocaine use in Vietnam, as well as multiple sex partners. The VA examiner diagnosed the Veteran as having hepatitis C and stated that in reviewing the alleged risk factors it was difficult to say with certainty which exposure transmitted hepatitis C to the Veteran. The examiner went on to state that considering the Veteran's reported blood exposure while moving the wounded and dead, as well as his intranasal cocaine use, tattoo, and having multiple sexual partners, it would appear that three out of four factors were not related to service duty. The examiner added that it would appear that "on a probable than not basis," that the Veteran's hepatitis C exposure did not occur during his official service duty. The Veteran was afforded another VA examination in September 2006 VA, during which he reported having a tattoo upon entering service, using intravenous and intranasal drugs in service, having multiple sexual partners, and being exposed to blood products through working with body bags and injured veterans. He also reported that he was on a graves detail for one day. The examiner noted that laboratory work performed in September 1998 and January 1999 revealed that the Veteran's liver functions were in the normal range, and that in June 1999 he was told he was positive for hepatitis C. The examiner diagnosed the Veteran as having hepatitis C and stated that the Veteran's risk factors were a "mixed bag" with the Veteran at one point denying intravenous drug usage and claiming such usage at a later date, denying any accidental needle punctures, admitting to having multiple sexual partners, and having received his tattoo prior to service at age 16. The examiner noted that the Veteran's assertions of picking up body parts had not been confirmed and that he self reported grave duty for one day. The examiner went on to state the following: Because of these mixed indications for exposures it is the opinion of this examiner that it is less than likely than not that the [V]eteran's hepatitis C is related to any activities that were incurred during his service at this time. There has been both positive and neg[ative] statements by the [V]eteran concerning his exposures and at this time it would be very difficult to state the cause or the reason for the [V]eteran developing hepatitis C. The Veteran was again examined in March 2009, the report of which noted that the Veteran had multiple risk factors that occurred in service, as well as documented risk factors after service. The VA examiner discussed the more and lesser effective methods of transmitting the hepatitis C virus according to medical literature, noting that the Veteran had multiple risk factors for contracting hepatitis C, including multiple sexual partners, intravenous drug use, alcohol abuse, tattoos, intranasal drug use, and possible transfusions, as well as VD in service. The examiner noted, however, that the Veteran's separation examination was negative, that his service records did not document his ever having to handle bodies, that his claims regarding transfusions are questionable, and that he did not test positive for hepatitis until 28 years after service. The examiner also pointed out that the Veteran had a 30 year history of alcohol abuse and at least a 10 year history of intravenous drug abuse. It was also noted that the Veteran had claimed to have hundreds of sexual partners. The examiner opined therefore that "the Veteran's current diagnosis of hepatitis C was less likely as not a result of his military service and it would be resorting to mere speculation on the method of transmission that this [V]eteran contracted hepatitis C." Similarly, a June 2011 VA examiner noted that having multiple sexual partners is a risk factor for incurrence of hepatitis C and that the Veteran claimed that he had multiple sexual partners and was treated for sexually transmitted diseases 11 times, with at least two of those treatment episodes are known to have occurred during service. It was also indicated that the Veteran had been married for 23 years. The examiner stated that the risk of contracting hepatitis C from multiple sexual partners was from 0.4% to 1.8% per year. The examiner thereafter discussed the Veteran's claims and the evidence of record as it related to his intravenous drug use, coming into contact with blood from wounded and dead soldiers, tattooing, alcohol use, and sharing toothbrushes. As to the intravenous drug use, the examiner opined that the most up to date medical literature reported that the number one risk factor for contracting hepatitis is intravenous drug use at approximately 60 percent and exposure to body parts/blood and shared toothbrushes were very low risk factors. It was also noted that controlling medical literature reported that alcohol abuse accounts for approximately 30 percent of hepatitis C infections. The examiner determined that the Veteran's highest risk factor for contracting hepatitis C was his intravenous drug use at approximately 60 percent, that his next highest risk factor was his alcohol abuse at approximately 30 percent, that his next highest risk factor was his multiple-sexual partners at approximately 15 percent, and that his blood exposure, shared toothbrush and razors, and pre-service tattoo were very week risk factors. The examiner ultimately concluded that the Veteran's currently diagnosed hepatitis C was less likely as not related to his military service. Upon examiner of the Veteran in April 2013, the VA examiner opined that it was less likely than not that the Veteran's hepatitis C was caused by any of his alleged in-service risk factors. With regard to the Veteran's allegations of having had hundreds of sexual partners, the examiner indicated that "[i]f [the Veteran] had as many sexual contacts as he [claimed] the majority of those would be after service and not in service." The examiner also opined that it was less likely that the Veteran's hepatitis C was contracted prior to service as his risk history is fairly negative during this period of time, and that it was at least as likely as not that the Veteran's hepatitis C is related to his intravenous drug use and was contracted after military service. As rationale for his opinion, the examiner noted that the Veteran's allegations of intravenous and intranasal drug use in service as recorded in the VA treatment records and examination reports, was inconsistent with regard to when and how much he drug use he engaged in, as was his history of sexual encounters. The examiner also indicated that the Veteran had reported being treated in service up to 14 times for a VD, but noted that the STRs documented treatment on only two occasions. Lastly, the examiner noted that the Veteran's liver tested normal on multiple occasions post-service from 1984 to 1998 and stated that if he had contracted hepatitis C in-service it would be expected that he would have had abnormal findings during at least one of these tests. The examiner explained that although it is not known how many years it takes for liver testing to show abnormal findings after contracting hepatitis, "[i]t would be unlikely for this [V]eteran to have contracted hepatitis C in service and have normal blood testing from 1984 to 1995." Based on a review of the Veteran's lab work, which was normal from 1984 -1994, the examiner rendered his "impression that [the Veteran] contracted hepatitis C sometime in the late 1980s or 90s." After careful review of the record, the Board finds that the preponderance of the evidence weighs against a relationship between the Veteran's hepatitis C and his military service. Notably, there is no evidence indicating that the Veteran had hepatitis C while on active duty. Further, no medical examiner has linked the Veteran's hepatitis C to service. While the Board has previously questioned the probative values of the pre-2013 VA opinions, the Board finds that overall the competent and probative evidence is against a finding of service connection. Indeed, the April 2013 VA examiner reviewed the record on appeal, took a detailed medical and social history from the claimant, examined the Veteran, and provided opinions as to the origins of his hepatitis C, which opinion was based on citation to relevant evidence found in the claims file. See Wray v. Brown, 7 Vet. App. 488, 493 (1995) (holding that the adoption of an expert medical opinion may satisfy the Board's statutory requirement of an adequate statement of reasons and bases if the expert fairly considered the material evidence seemingly supporting the veteran's position); Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches. . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators. . ."). It is clear that the examiner considered a variety of factors, to include the Veteran's lay statements, the asserted risk factors alleged to have occurred in service, the lack of evidence showing that the Veteran was diagnosed with hepatitis C in service, and the length of time between the Veteran's separation from service and the diagnosis of hepatitis C in concluding that the Veteran's currently diagnoses hepatitis C is not related to a period of active military service. The Board finds that, in light of the lack of in-service complaints or treatment suggestive of hepatitis C, especially in light of the several instances of treatment for sexually transmitted disease, the post-service medical records first showing a diagnoses of hepatitis C in 1999, and the VA examiner's opinion negative nexus opinion, which opinion is not contradicted by any other medical evidence of record, there is no basis to establish service connection for hepatitis C. This is so because a crucial element of service connection has not been shown. See Davidson, supra (service connection requires evidence of a nexus between the claimed in-service disease or injury and the present disability); see also Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether a disability was incurred in service or whether an injury, if any, resulted in any chronic or persistent disability that still exists currently). As to the Veteran's specific theory of service connection, the Board notes that generally etiology of dysfunctions and disorders is a medical determination. See Jandreau v. Nicholson, 492 F.3d 1372, 13774-75 (Fed. Cir. 2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed.Cir.2010) (recognizing that in some cases lay testimony 'falls short' in proving an issue that requires expert medical knowledge). Here, the Veteran, as a lay person without the appropriate medical training and expertise, is not competent to etiologically relate hepatitis C to service, especially in light of the fact that the evidence fails to demonstrate the onset of that disability in service and the fact that multiple medical experts have opined against an etiological relationship. See Jandreau, supra; Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data); see also Savage v. Gober, 10 Vet. App. 488, 497 (1998) ("[B]ecause it would not necessarily follow that there is a relationship between any present disability and the continuity of symptoms demonstrated, medical evidence . . . is required to demonstrate such a relationship unless such a relationship is one as to which a lay person's observation is competent."). The Board has also considered the medical articles submitted in support of the Veteran's claim. In this regard, the Board notes that medical article and treatise evidence that discusses relationships with certainty may be used to meet the requirement for a medical nexus. Wallin v. West, 11 Vet. App. 509 (1998). Additionally, medical treatise evidence can provide important support when combined with an opinion of a medical professional. See Rucker v. Brown, 10 Vet. App. 67, 73-74 (1997) (holding that evidence from scientific journal combined with doctor's statements was "adequate to meet the threshold test of plausibility"). However, an attempt to establish a medical nexus between service and a disease or injury solely by generic information in a medical journal or treatise "is too general and inclusive." Sacks v. West, 11 Vet. App. 314, 317 (1998) (a medical article that contained a generic statement regarding a possible link between a service-incurred mouth blister and a present pemphigus vulgaris condition did not satisfy the nexus element). In this case, the Board finds that the medical articles submitted by the Veteran contain only generic information regarding hepatitis C in veteran's serving during the Vietnam Era and are not supported by any by medical professional's opinion. Therefore, the Board does not find this to be probative medical evidence. Id. Accordingly, the Board finds that the most probative evidence of record does not show that the Veteran's current hepatitis C had its onset in or was caused by service. Thus, the Board finds that entitlement to service connection for hepatitis C is not warranted based on the initial documentation of the disability after service because the weight of the competent and credible evidence is against finding a causal association or link between the post-service disorder and an established injury, disease, or event of service origin. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(d). In finding the service connection for hepatitis C is not warranted, the Board has considered the benefit-of-the-doubt doctrine. However, because the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt provision does not apply. See Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the Board concludes that service connection for hepatitis C is not warranted. ORDER Entitlement to service connection for hepatitis C is denied. ____________________________________________ KRISTIN E. NEILSON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs