Citation Nr: 1335602 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 09-21 756 -+) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for Hepatitis, to include B and C. 2. Entitlement to service connection for residuals of dental trauma. REPRESENTATION Veteran represented by: Illinois Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. Edwards, Counsel INTRODUCTION The Veteran had active service from June 1972 to December 1972. This matter comes before the Board of Veterans' Appeals (BVA or Board) from an April 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Veteran now resides in Missouri, so the matter is now handled by the RO in St. Louis, Missouri. The Veteran requested a hearing before the Board. The requested hearing was conducted in May 2012 by the undersigned Veterans Law Judge. A transcript is associated with the claims file. With respect to the Board hearing, the Court recently held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ noted that the appeal included the issue of service connection for Hepatitis B and C, and asked questions to clarify the Veteran's contentions. Although the VLJ did not specifically note the elements that were lacking to substantiate this claim, the testimony of the Veteran, to include the questions posed by his accredited representative, demonstrated that he had actual knowledge of the elements necessary to substantiate this claim. Moreover, as detailed below, the Veteran received adequate notification as to the elements necessary to substantiate his claim. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor has he identified any prejudice in the conduct of either hearing. As such, the Board finds that, consistent with Bryant, the duties set forth in 38 C.F.R. 3.103(c)(2) have been satisfied. In August 2012, the Board remanded these claims for additional development. The Board finds there has been substantial compliance with the remand directives, pertaining to the claim for Hepatitis. The RO was directed to obtain Naval Hospital records pertaining to the Veteran's knee surgery, and to obtain a medical opinion regarding the Veteran's Hepatitis. Hospitalization records were obtained in August 2012 and a VA medical opinion was obtained in February 2013. Based on the foregoing, the Board finds that the there was substantial compliance with the mandates of the remand. The Board acknowledges that it received approximately eight pages of service dental records in July 2013. These documents were submitted after the issuance of a May 2013 supplemental statement of the case and without a waiver of original consideration. Under 38 C.F.R. § 20.1304(c), any pertinent evidence submitted without a waiver must be referred to the RO. 38 C.F.R. § 20.1304(c) specifically states that "[e]vidence is not pertinent it if does not relate to or have a bearing on the appellate issue or issues." Here, the Veteran has requested that his dental claim be remanded for consideration of the additional dental evidence, and this issue is addressed in the REMAND section below; however, the Board finds that the dental records are not pertinent to the issue of entitlement to service connection for Hepatitis. Given that these dental records pertain solely to the Veteran's claim for dental trauma, it is not prejudicial for the Board to address the issue of entitlement to service connection for Hepatitis. As a final introductory matter, the Board acknowledges that, in addition to reviewing the Veteran's paper claims file, it has surveyed the contents of his Virtual VA efolder. The Board is obligated to consider the additional evidence contained therein since, under VA's current guidelines, such evidence is considered part of the constructive record. See Veterans Benefits Administration Fast Letter 11-28 (outlining revised procedures related to electronic records). Nevertheless, the Board concludes that the Veteran's Virtual VA efolder is devoid of any additional evidence that is material to the issue decided herein and, thus, need not be further addressed at this time. The issue of entitlement to service connection for residuals of dental trauma is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The preponderance of the evidence reflects that the Veteran's Hepatitis, to include B and C, is not due to any incident of his active duty service. CONCLUSION OF LAW Service connection for Hepatitis, to include B and C, is not established. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. A letter dated August 2006 satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b) (1). This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The claim was subsequently readjudicated, most recently in a May 2013 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). VA also has a duty to assist claimants in obtaining evidence needed to substantiate a claim. This includes obtaining all relevant evidence adequately identified in the record and, in some cases, affording VA examinations. 38 U.S.C.A. § 5103A. The duty to assist has also been met. The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained. See 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran was afforded VA examinations and VA medical opinions pertinent to the issue on appeal have been obtained. There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. II. Entitlement to Service Connection for Hepatitis, to Include B and C The Veteran claims service connection for Hepatitis B and C. He asserts he contracted the disease as a result of a blood transfusion he received during a knee surgery that occurred in service. A. Applicable Law In general, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304. Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Entitlement to service connection on the basis of a continuity of symptomatology after discharge under 38 C.F.R. § 3.303(b) is only available for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Hepatitis is not listed in 38 C.F.R. § 3.309(a), and therefore, service connection cannot be established under 38 C.F.R. § 3.303(b). Service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can be competent and sufficient evidence of a diagnosis or used to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Risk factors for Hepatitis are considered to include intravenous drug use, blood transfusions before 1992, hemodialysis, intranasal cocaine, high-risk sexual activity, accidental exposure while a health care worker, and various kinds of percutaneous exposure such as tattoos, body piercing, acupuncture with non-sterile needles, shared toothbrushes or razor blades. VBA Fast Letter (98-110) November 30, 1998. VA considers that a Veteran may have been exposed to the Hepatitis C virus (HCV) during the course of his or her duties as a military corpsman, a medical worker, or as a consequence of being a combat Veteran. VBA Fast Letter 04-13 June 29, 2004. There was no test available to detect the presence of HCV until 1989. See VBA Fast Letter 98-110. B. Facts The Veteran's service treatment records were reviewed. His entrance examination from April 1972 did not note any abnormalities. In May 1972, he was involved in an automobile accident, in which he sustained direct trauma to the right knee. See October 1972 Naval Hospital Report. It was noted that this injury was after the Veteran's entrance examination, but before training. A June 1972 physical examination did not note any abnormalities. Upon entering training, the Veteran experienced knee pain. Because he was unable to perform his training duties, he was sent for further examination. In July 1972, the Veteran underwent an arthrotomy of the right knee, including a patellectomy and meniscectomy with subsequent reconstruction of the quadriceps mechanism. It was noted that blood loss was 100 cubic centimeters (cc). Postoperatively, the Veteran's course was noted to be satisfactory. In October 1972, the Medical Board found the Veteran was unfit for duty. Post service, an August 1978 medical report indicates that the Veteran tested positive for Hepatitis B antigen. At that time, it was reported that the Veteran had a significant history of drug use. An August 1978 History and Physical examination Report noted that the Veteran's mother reported the Veteran's used, "every drug that is known," and the Veteran's girlfriend indicated he took, "numerous drugs of all kinds, including speed, has shot up heroin and taken LSD in the past." See August 1978 History and Physical examination Report. The Veteran stated that he took drugs because nothing else excited him. Id. After examination, the impression was probable anti-social personality with multiple drug use, and probable overdose on drugs leading to seizure. The Veteran was hospitalized again in July 1996, after being involved in a motor vehicle collision. It was noted that he tested positive for barbiturates, THC, and amphetamines. In May 2004, the Veteran was afforded a VA examination for his right knee injury. He reported his medical history regarding his right knee, including his surgery. However, the Veteran failed to report that he received any blood transfusions during the surgery. See May 2004 VA examination. In October 2004, the Veteran tested positive for Hepatitis C. A May 2005 VA treatment note indicated the Veteran had a previous history of intravenous (IV) drugs for 33 years. The Veteran was assessed with chronic HCV and Hepatitis B (HBV), attributed to intravenous drug abuse (IVDA). A December 2005 VA treatment note indicated the Veteran had an Axis I diagnosis of polysubstance abuse (methamphetamine, cannabis, ETOH) in early remission, 18 months reported by the Veteran. The Veteran was afforded a VA examination in February 2013. It was noted that the claims file was reviewed. The examiner opined that the Veteran's Hepatitis was less likely than not incurred in or caused by an in-service injury, event, or illness. The examiner noted that the Veteran claims he contracted Hepatitis B and C from blood transfusions he received during his knee surgery in service. The examiner reviewed the Veteran's San Diego Naval Hospital records pertaining to his knee surgery. The examiner noted that there were no physician orders for a blood transfusion, nor a lab order for grouping and cross matching. There was also no nursing note regarding a transfusion or documentation of implementing such an order in the record. The examiner opined that it is less likely than not that the Veteran received a blood transfusion for his surgery during service. The examiner explained that this opinion was based on the review of the entire hospitalization record for his knee surgery in service and absolute lack of evidence of any blood transfusion. The examiner reported that the Veteran's claim was discussed in detail with the Chief of Orthopedics, who stated that he had performed hundreds of operations of this type and it was "unheard of" to give blood transfusions as the operation is completed with a tourniquet and the blood loss is minimal. Finally, the examiner explained that there is further compelling evidence that the Veteran did not receive a blood transfusion as a written progress note from the surgeon who completed the Veteran's surgery indicates that the Veteran's blood loss was about 100 cc's. Therefore, based on all of the evidence, the examiner opined that it is unlikely that the Veteran's Hepatitis is due to his knee operation in service. C. Analysis Initially, the Board observes that Hepatitis B and C are complex disease processes that, among other things, require specific medical testing to diagnose. Moreover, as indicated previously, the type of testing necessary to identify Hepatitis C was not available until years after the Veteran's separation from service. These factors, as well as the fact that a determination as to whether the Veteran's Hepatitis C is etiologically related to service could not have been made until years after that period, reflect that it is the type of disability that requires competent medical evidence to diagnose and determine the etiology thereof; i.e., it is not subject to lay diagnosis. Here, nothing on file shows that the Veteran has the requisite knowledge, skill, experience, training, or education to render a medical opinion. Consequently, his contentions cannot constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1). There were no indications during service that the Veteran had Hepatitis B or C. The first competent medical evidence of record showing a diagnosis of Hepatitis B is dated approximately six years after his separation from service. The Veteran does not contend that he was diagnosed with or treated for Hepatitis B or C in service. Rather, he has reported that his Hepatitis B and C are due to blood transfusions that occurred during a knee surgery in service. The Veteran has acknowledged a long history of drug use. The Veteran reported in a May 2003 VA treatment note that he used IV drugs for the prior 33 years, which would indicate the Veteran was taking drugs prior to and during his time in service. Furthermore, multiple post-service medical records indicate drug use. See August 1978 History and Physical examination, July 1996 Hospitalization report, and December 2005 VA treatment note. Importantly, although the Veteran has asserted that his Hepatitis B and C are due to a blood transfusion, there is no evidence in the claims file that a transfusion occurred during service. See July 1972 surgery record and February 2013 VA examination. The record clearly shows other risk factors, to specifically include IV drug use before, during, and after service. The February 2013 VA examiner opined that the Veteran's Hepatitis was not due to a blood transfusion, and importantly, a May 2005 VA treatment note indicates the Veteran's Hepatitis B and C are attributed to IVDA. For all claims which were filed after October 31, 1990, such as this one, direct service connection may be granted only when a disability was incurred or aggravated in the line of duty, and it was not the result of the Veteran's own willful misconduct or the result of the Veteran's abuse of alcohol or drugs. 38 U.S.C.A. § 105; 38 C.F.R. § 3.301(a). The Veteran is competent to state that he used intravenous drugs prior to service, during service, and post service, as he is attesting to matters capable of lay observation and of which he has direct knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Intravenous drug use is shown as an in-service and post-service risk factor for the Veteran's Hepatitis B and C, and has been identified as the most likely etiological risk factor. Such actions constitute willful misconduct and prohibit payment of VA benefits for disabilities resulting from such willful misconduct. In essence, the Veteran is asking the Board to speculate and presume that his theory as to the onset of his Hepatitis is accurate. The Board is not willing to make such a presumption in light of the totality of the evidence in this case. Furthermore, the Veteran is making a number of assumptions the Board has rejected based on the evidence of record. Specifically, that he received a blood transfusion during service and that the transfusion consisted of Hepatitis infected blood. Likewise, the Veteran is offering a medical conclusion for which he is not competent to provide. See Routen, 10 Vet. App. at 186; see also Bostain, 11 Vet. App. at 127. The record contains no evidence to suggest that the Veteran has the requisite training and expertise to offer a medical opinion as complex as the origins of an infectious disease. Furthermore, there is no competent evidence of record that the Veteran received a blood transfusion during service. Medical evidence indicates the Veteran lost only 100 cc's of blood during the surgery, and there is no report of a transfusion. A VA examiner has opined that blood transfusions are not used during such knee surgeries. See February 2013 VA examination. Importantly, the Veteran's Hepatitis B and C have been attributed to his IVDA. See May 2005 VA treatment note. Additionally, the Board must question the overall credibility of the lay statements provided by the Veteran in support of his claim. During a May 2004 VA examination for his knee, the Veteran reported his medical history regarding his right knee, including his surgery. However, he failed to report that he received any blood transfusions during the surgery. See May 2004 VA examination. Furthermore, at no time during the diagnosis and treatment of his Hepatitis B or C did the Veteran report that any blood transfusions occurred during his time in service. It is not until the Veteran filed a claim for service connection that he brings the theory of contracting Hepatitis due to a blood transfusion in service. As there is no medical evidence of a blood transfusion during service, this demonstrates that the Veteran has been willing to provide false statements to VA in conjunction with his claim for benefits. Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (noting that personal interest may affect the credibility of the evidence). In sum, there is no competent medical evidence relating the Veteran's hepatitis to an service event which is not considered willful misconduct. As such, the preponderance of the evidence is against the claim, and the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to service connection for Hepatitis B and C must be denied. ORDER Entitlement to service connection for Hepatitis B and C is denied. REMAND The Veteran seeks entitlement to service connection for residuals of dental trauma. He asserts his teeth were knocked out in service during an altercation. See June 2013 statement. In July 2013, the Board received approximately eight pages of service dental records, indicating that the Veteran was involved in an altercation in July 1972 and suffered from evulsed teeth as a result. See October 1972 treatment note. These documents were submitted after the issuance of a May 2013 supplemental statement of the case (SSOC) and without a waiver of original consideration. As these records were not initially considered by the RO, the evidence must be referred for review unless the Veteran waives this procedural requirement. 38 C.F.R. § 20.1304(c) (2013) (a claimant must submit a written waiver of evidence submitted directly to the Board, or otherwise the new evidence along with the claims folder must be referred back to the RO for consideration). The Veteran was informed by a letter in September 2013 that his dental records were received and were not previously considered by his local RO. He was given the opportunity to submit a waiver; however, he elected to have the issue remanded back to the RO for review of the dental records. See September 2013 response form. As such, the additional evidence must be referred to the RO for review and preparation of a SSOC, if a grant of the benefit sought is not made. 38 C.F.R. § 20.1304(c). Accordingly, the case is REMANDED for the following actions: The RO should review all evidence received subsequent to the May 2013 SSOC, specifically the dental records received in July 2013. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs