Citation Nr: 1335503 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 07-36 335 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Boyd, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1969 to September 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The Board remanded the claim in May 2011. The Board now finds that the remand directives have been completed and, therefore, a new remand is not required to comply with the holding of Stegall v. West, 11 Vet. App. 268 (1998). In addition to a paper claims file, there is a Virtual VA electronic file. The Board has reviewed both files prior to reaching this decision. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the Veteran's appeal has been obtained. 2. Hepatitis C did not manifest in service or for many years after service; hepatitis C is unrelated to any incident in service. CONCLUSION OF LAW The criteria for service connection for hepatitis C have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, in November 2005 and May 2006 pre-adjudication letters, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate a claim for service connection for hepatitis C, including what he needed to provide and what would be obtained by VA. The May 2006 letter included a list of risk factors for hepatitis C that, if present, might help support the Veteran's claim. The record also reflects that VA has made reasonable efforts to obtain all relevant records pertinent to the matter on appeal, including the Veteran's service treatment records, private treatment records and military personnel records. Following an initial appeal, in May 2011, the Board remanded the claim to request the Veteran's Social Security Administration (SSA) records, to attempt to obtain clinical or inpatient hospital records and to seek an addendum opinion from the physician who conducted the Veteran's December 2005 VA examination. The SSA reported that the Veteran's folder had been destroyed and the National Personnel Records Center reported that the requested clinical or inpatient hospital records could not be located. The Veteran was properly notified of these findings. The December 2005 examination was performed and an opinion rendered without review of the Veteran's claims file. The Board now finds that the addendum opinion provided in July 2011 is thorough and adequate. The claims file was reviewed and the Veteran's medical history discussed at length. The examiner considered all issues raised by the Board in its remand and specifically addressed the likelihood that hepatitis C is the result of, or related to, "infectious hepatitis" as noted on the Veteran's September 1971 service separation examination report, the Veteran's alleged risk factors including exposure to the blood of fellow soldiers and a risk factor elicited from treatment records indicating a history of heroin use. The examiner's etiology opinion was supported by an adequate rationale based on the examiner's expertise as a medical professional. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). The Board finds that no additional RO action to further develop the record in connection with these claims, prior to appellate consideration, is warranted. The Veteran was provided the opportunity to meaningfully participate in the adjudication of his claims and did in fact participate. Washington v. Nicholson, 21 Vet. App. 191 (2007). Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. II. Entitlement to Service Connection The Veteran asserts that his currently diagnosed hepatitis C had its onset in service or is otherwise related to service. He contends that he was medivaced from the Republic of Vietnam on account of hepatitis symptoms; he was exposed to the blood of other soldiers during his 8 months in Vietnam; and his separation examination report noted that he had "infectious hepatitis" prior to discharge from the military. In addition, the Veteran was previously granted service connection for "infectious hepatitis", or hepatitis A, effective January 3, 1984. See April 2006 RO Deferred Rating Decision (defining 'infectious hepatitis' as hepatitis A). Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110. Service connection may also 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). To establish service connection for a disability resulting from a disease or injury incurred in service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Under 38 C.F.R. § 3.303(b), for particular chronic diseases that are noted in service or within a prescribed period thereafter, service connection may be established by demonstrating a continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). This method is only applicable if the claimed disability is a chronic condition as set forth in 38 C.F.R. § 3.309(a); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Hepatitis C is not a listed disease under 38 C.F.R. § 3.309(a). Therefore, the theory of continuity of symptomatology is not for application and medical evidence of a link or relationship between hepatitis C and the Veteran's active service will be necessary to substantiate his claim. Under section 3.310(a) of VA regulations, service connection may also be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury, here 'infectious hepatitis' or hepatitis A. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board notes that although a veteran is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, he or she is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). In this case, the Veteran is competent to state that he had certain symptoms during service; however, he is not competent to self-diagnose hepatitis C. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis); see also Jones v. West, 12 Vet. App. 383, 385 (1999) (where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue). This is because hepatitis C requires medical expertise or medical testing or both to establish a diagnosis, and to render an opinion about its etiology requires medical study and experience with the nature of the disease. In general, for service connection to be granted for hepatitis C, the evidence must show that a veteran's hepatitis C infection, risk factor(s), or symptoms were incurred in or aggravated by service. The evidence must further show a relationship between the claimed in-service injury and the Veteran's hepatitis C. 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) (April 17, 2001). 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). Although "infectious hepatitis" was noted on the Veteran's September 1971 separation examination report, the evidence of record, discussed below, does not indicate any of the above mentioned risk factors occurred during service. After service, a treatment record from February 1990 reflects alcohol dependence and a history of parenteral substance abuse. The Veteran admitted to use of heroin and cocaine in the past, although he denied use of intravenous (I.V.) drugs after 1978. At a psychiatric appointment in December 1994, the Veteran again admitted to use of heroin, although stated he had not used since the 1980s. The Veteran's hepatitis C screening test administered in 1994 was negative. The Veteran currently has a diagnosis of hepatitis C, confirmed by liver core biopsy in November 2005. He has been under the care of Dr. J.L. since January 2005 because of abnormal liver test results. Studies at that time indicated the hepatitis C antibody was positive. In November 2005, the Veteran sought a follow-up evaluation of his abnormal liver test results with Dr. E.A. At that time, he related he had never used I.V. drugs, does not have any tattoos, and had never had a blood transfusion. In December 2005, the Veteran underwent a VA liver, gallbladder and pancreas examination. The examiner did not review the claims file, although the Veteran did provide some of his treatment records from private physicians, including those showing evaluation for and diagnosis of hepatitis C in 2005 and treatment records from the 1990s. The examiner concluded that "the veteran's presentation, as provided per his history today, is clearly not consistent with a hepatitis C clinical scenario, back in 1969 - 1971." He opined that although hepatitis C was not defined as such until the latter portion of the 1980s, "the veteran's presentation with reference to such a short time span, which was void of any risk factors relative to his military service, is not consistent with a hepatitis C clinical scenario from a historical perspective." The doctor concluded his symptoms during service were more likely a product of malaria or hepatitis A. In discussing the Veteran's medical history, the examiner noted the Veteran's contention that he was "exposed to blood as a result of inflicted wounds to his fellow soldiers secondary to shrapnel, as well as bullets." The Veteran denied "any historical violation of his skin with reference to the aforementioned blood." The examiner opined that blood splattering on an individual alone is not a clear risk factor for hepatitis C. Instead, "there must be a violation of the epithelium barrier with reference to the skin." The examiner concluded that the "most ominous risk factor is intravenous drug abuse" as related by the Veteran when seeking treatment at a psychiatric ward in 1994, especially in light of the fact that his hepatitis C antibody screening test was negative at that time. The examiner stated: "This basically affirms the previously described opinion, that the Veteran did not contract hepatitis C during his military service." In July 2011, a different VA examiner reviewed the claims file and provided another etiology opinion regarding the Veteran's hepatitis C. She assessed him with hepatitis C with cirrhosis secondary to both alcohol abuse and hepatitis C. After an in-depth review of the medical evidence, she agreed with the opinion of the 2005 examiner that the Veteran's "clinical presentation during military service is not consistent with hepatitis C but is more consistent with hepatitis A or less likely with misdiagnosed malaria." She agreed also that the "casual splattering of blood onto intact skin is a minor risk factor for the development of any blood bourne illness and thus that the veteran's exposure to the blood of his fellow soldiers was not an appreciable risk factor." She also noted that the Veteran's "blood work as we have it is also consistent with the later development of hepatitis C." She concluded: "Taken in its entirety, the evidence of record points to a greater than 50% probability that the veteran did NOT contract hepatitis C during military service but did contract hepatitis C after 1994 as so well explained by Dr. B. [the 2005 examiner]." The 2011 examiner also considered whether hepatitis C is the result of, or related to, the service-connected "infectious hepatitis" that was noted on the Veteran's September 1971 separation examination report. As to this, she concluded: "It is my medical opinion that it is less likely as not (less than 50/50 probability) that the veteran's condition of hepatitis C was caused by or a result of or related to the infectious hepatitis shown by history on the veteran's September 1971 service separation examination report for the reasons so eloquently given by Dr. B. and with which I am in complete agreement." Both the 2005 and 2011 VA examiners opined that the "infectious hepatitis" noted in service was hepatitis A or misdiagnosed malaria and that the Veteran's hepatitis C was not proximately due to or the result of that service-connected disease. Upon review of the evidence, the Board finds that although hepatitis C was not defined until the latter portion of the 1980s or early 1990s, the Veteran's period of service was devoid of any verifiable risk factors and was not consistent with a hepatitis C clinical scenario. As for risk factors post-service, the Veteran's contention at his follow up evaluation in 2005 that he had never used I.V. drugs is inconsistent with other evidence of record, specifically the psychiatric hospital treatment report from 1994 and a prior treatment record dated in March 1990. When weighing the probative value of the evidence, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996); see also Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). The Board finds that significant probative weight should be given to the conclusion of both the 2005 and 2011 VA examiners that the most notable risk factor for hepatitis C is the I.V. drug use documented in 1994, especially since the Veteran's hepatitis C antibody screening test was negative at that time. Such evidence strongly suggests that hepatitis C was not present in service and did not in fact manifest for several decades thereafter. In addition, there is no competent evidence that the Veteran's hepatitis C is in any way related to the infectious hepatitis, or hepatitis A, noted on his separation examination. As there is no competent evidence of hepatitis C in service and there is no competent evidence of a nexus between that disorder and any event in service, the criteria for service connection have not been met. The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the probative evidence is against the claim and there is no doubt to be resolved, that doctrine is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for hepatitis C is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs