Citation Nr: 1338077	
Decision Date: 11/20/13    Archive Date: 12/06/13

DOCKET NO.  07-32 692	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUE

Entitlement to service connection for hepatitis C. 


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

E. Woodward Deutsch, Counsel


INTRODUCTION

The Veteran served on active duty from July 1971 to July 1974.

This matter comes before to Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision by the Philadelphia, Pennsylvania Regional Office and Insurance Center (RO) of the Department of Veterans Affairs (VA).

In October 2009, the Veteran presented personal testimony during a videoconference hearing before the undersigned Acting Veterans Law Judge.  A transcript (Tr.) of that proceeding has been associated with the claims file.

In December 2009 and September 2011, the Board remanded the case for additional evidentiary development.  As discussed in further detail below, the Board finds that there has been sufficient compliance with its prior remand directives such that appellate review may now proceed.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (finding that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998), where the prior remand instructions met with substantial compliance), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).


FINDING OF FACT

The preponderance of the evidence reflects that the Veteran's hepatitis C is due to intravenous drug use and is not etiologically related to his active military service or to any disability incurred therein, including posttraumatic stress disorder (PTSD).  


CONCLUSION OF LAW

The criteria for service connection for hepatitis C have not been met.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2013).
REASONS AND BASES FOR FINDING AND CONCLUSION

At the outset of this discussion, the Board notes that it has reviewed all the evidence in the Veteran's paper and electronic claims file.  This includes the written argument and testimony that he and his representative have presented in support of his hepatitis C claim, as well as his service and post-service treatment records.  The Board has also reviewed the report of the March VA examination and the September 2011 addendum opinion that have been elicited in support of that claim.  

Although the Board is obligated to provide adequate reasons and bases for its decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the Veteran's claims and what the evidence in the claims file shows, or fails to show, with respect to those issues.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).

I.  Veterans Claims Assistance Act of 2000 (VCAA)

Before proceeding to the merits of a perfected appeal, the Board must consider whether VA has met its duties to notify and assist the Veteran under the VCAA.  See 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  Hence, the Board will now address each of these statutory duties in the order set forth below.

Duty to Notify

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, which is necessary to substantiate the claims at issue.  38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper 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.  38 C.F.R. § 3.159(b)(1) (2012).  VCAA notice should be provided to a claimant before the initial unfavorable AOJ decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).

The VCAA notice requirements apply to all five elements of a service-connection claim:  Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability.  See Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006).  

In this case, VCAA notice was provided through a letter issued in October 2006, prior to the initial unfavorable adjudication.  The October 2006 letter advised the Veteran of the applicable risk factors for hepatitis C, as well as the specific evidence needed to substantiate his claim for service connection for that disability.  In addition, the letter informed the Veteran of his responsibilities, and those of VA, for obtaining such evidence.  It also described in detail how VA assigns a disability rating and an effective date following the grant of service connection.  As such, that letter not only comported with the Pelegrini notice provisions but also satisfied the heightened VCAA requirements set forth in Dingess.  Accordingly, the Board finds that VA has fully met its duty to notify the Veteran under 38 C.F.R. § 3.159(b).

Duty to Assist

The Board also finds that VA has satisfied its duty to assist the Veteran pursuant to 38 C.F.R. § 3.159(c)(4).  In this regard, the AOJ has obtained copies of his service treatment records and pertinent VA medical records.  Significantly, the Veteran has not alleged, and the record has not otherwise shown, that any documentation remains outstanding that is necessary to decide his claim.

In addition to records procurement, the AOJ has assisted the Veteran by affording him a March 2010 examination in support of his claim.  That examination has yielded medical findings that are factually incomplete and, thus, inadequate for rating purposes; however, an addendum opinion elicited in September 2011 has effectively addressed these deficiencies.  Specifically, the addendum opinion has clarified that while, contrary to the March 2010 examiner's initial findings, VA does recognize air-gun inoculations as a mode of hepatitis C transmission, it is less likely than not that the Veteran himself contracted the disease through that method.  While the Veteran disagrees with the September 2011 opinion, he has not alleged that it is inadequate to decide his claim.  Nor has the record otherwise suggested that to be the case.  Accordingly, the Board finds that any additional VA examination would only delay adjudication, without benefiting the Veteran, and should therefore not be undertaken.  See Sondel v. West, 13 Vet. App. 213 (1999).

Nor should any other evidentiary development be undertaken as the Board's September 2011 remand has already met with substantial compliance by the AOJ.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  As previously noted, the AOJ has made reasonable efforts to obtain the Veteran's service and post-service treatment records, and has arranged for an examination and addendum opinion that are collectively adequate for rating purposes.  Thereafter, the AOJ has readjudicated the appeal in an April 2012 Supplemental Statement of the Case (SSOC), which has expressly considered all evidence added to the claims file since the last adjudication.  The Board recognizes that the Veteran's representative has since submitted an Appellate Brief, which references medical literature that was not previously part of the physical record.  However, as that literature was obtained from a VA-run Web site (http://www.ptsd.va.gov), the Board finds that it was constructively in the Secretary's possession at the time of the last adjudication.  As such, a waiver of initial AOJ review is not required with respect to that evidence.  Moreover, absent any other showing to the contrary, the Board is satisfied that there has been substantial compliance with the terms of its latest remand, including its instruction to readjudicate the Veteran's claim in the April 2012 SSOC.  See Stegall, 11 Vet. App. at 271.  

As a final matter regarding the duty to assist, the Board notes that the Veteran has had the opportunity to testify before the undersigned in support of this appeal.  See 38 C.F.R. § 20.700(a) (2013).  The transcript of the October 2009 hearing reflects that the undersigned set forth the issue on appeal at the start of the proceeding, then focused on the elements necessary to substantiate that claim and sought to identify any further development that was required.  See Board Hearing Tr. at 2, 6-7.  Specifically, the undersigned elicited testimony from the Veteran regarding his in-service and post-service risk factors for hepatitis C, as well as his diagnosis and treatment for that disorder by VA clinicians.  Id.  These actions satisfied the duties a Veterans Law Judge has to explain fully the issues and to suggest the submission of evidence that may have been overlooked.  See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010) (holding that the provisions of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board).  Notably, the Veteran has not alleged, and the evidence has not otherwise shown, that the undersigned failed to comply with 38 C.F.R. § 3.103(c)(2) or committed other prejudicial error, either by failing to fully explain the issue on appeal or by neglecting to suggest the submission of relevant evidence that may have been overlooked.  Moreover, there is no indication that the Veteran was otherwise denied due process during his hearing.  

For the foregoing reasons, the Board finds the Veteran has had the opportunity to meaningfully participate in the adjudication of his claim for service connection for hepatitis C.  See 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.  Analysis

The Veteran contends that he contracted hepatitis C from air gun inoculations administered in service such that direct service connection for that disorder is warranted.  See Board Hearing Tr. at 4.  Alternatively, his representative asserts that the Veteran's hepatitis C is due to intravenous drug use, which, in turn, is attributable to his service-connected PTSD.  As such, the representative maintains that secondary service connection for hepatitis C is also warranted.  See September 2013 Appellate Brief.

In light of the Veteran's contentions, and those of his representative, the Board has an obligation to address his hepatitis C claim under both direct and secondary theories of entitlement.  See Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) (holding that the Board is required to weigh all theories of entitlement raised either by the claimant or by the evidence of record as part of the non-adversarial administrative adjudication process).

The Board has also considered whether service connection may be granted on a presumptive basis.  However, hepatitis C is not among the chronic diseases for which service connection may be rebuttably presumed under the provisions of 38 C.F.R. § 3.303(b), 38 C.F.R. § 3.307, and 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013) (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period).   Nor is it one of the diseases presumptively linked to in-service herbicide exposure.  Thus, while the Board concedes such exposure in light of the Veteran's service in the Republic of Vietnam during the period beginning January, 9, 1962, and ending May 7, 1975, service connection for hepatitis C is nevertheless unwarranted under 38 C.F.R. § 3.307(a)(6)(iii) and 38 C.F.R. § 3.309(e).

Having thus established that the tenets of presumptive service connection are insufficient to grant the Veteran's claim, the Board will next address the criteria for direct and secondary service connection.  The Board will then explain why explain neither set of requirements has been met in this case. 

Service connection may be granted for a disability or injury incurred in or aggravated by active wartime or peacetime service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013).  

Establishing service connection on a direct basis requires 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 38 C.F.R. § 3.303; see also Hickson v. West, 12 Vet. App. 247, 253 (1999).

Establishing service connection on a secondary basis requires evidence of (1) current disability; (2) service-connected disability; and (3) a connection between the two.  See 38 C.F.R. § 3.310; see also Wallin v. West, 11 Vet. App. 509, 512 (1998).

Here, the Veteran's VA medical records confirm that he has been treated extensively for symptoms comporting with a diagnosis of hepatitis C.  As such, the threshold requirement for direct and secondary service connection (current disability) has been met in this case.

The second elements of the Hickson and Wallin tests have also been satisfied.  Indeed, while the Veteran's service treatment records are devoid of any complaints or clinical findings of hepatitis C, those records do show that he received vaccinations during active duty.  The Veteran is competent to report that those vaccinations involved air gun injectors, which he physically experienced.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses).  Moreover, the Board considers the Veteran's assertions to be credible in light of the other evidence of record.  Such evidence includes a VA administrative finding that air gun injectors were used to administer vaccines to active duty service members, and that the transmission of hepatitis C was "biologically plausible" via that method.  See Veterans Benefits Administration (VBA) Fast Letter 04-13 (June 29, 2004).  That finding, in tandem with the Veteran's service records and lay assertions, is sufficient to meet the second element of Hickson (in-service incurrence).  The second element of Wallin is likewise met in light of the Veteran's award of service connection for PTSD.  This disability, as noted previously, has been highlighted by the Veteran's representative as a contributing factor in the onset of his hepatitis C.

Given the substantiation of the first and second Hickson and Wallin elements, the Veteran's claim turns on whether a direct nexus exists between his in-service inoculations and hepatitis C ,or whether that disability is instead attributable to his service-connected PTSD.  

To resolve the first of these questions, VA has arranged for the Veteran to undergo a March 2010 VA examination, which has yielded a medical opinion unfavorable to his claim.  Specifically, the examining clinician has opined that the Veteran's hepatitis C is less likely than not related to his receipt of air gun vaccines in service.  

The Board recognizes that the March 2010 examination report is problematic insofar as it erroneously states that "VA does not recognize [air gun inoculations] as a mode of [hepatitis C] transmission."  For this reason, the Board has requested that the March 2010 examining clinician review the aforementioned VBA Fast Letter, which acknowledges air-gun vaccines as a plausible risk factor for hepatitis C.  

After completing the requested evidentiary review, the examining clinician has rendered a September 20111 addendum opinion, which essentially corroborates his earlier findings.  Specifically, the examiner has concluded that, notwithstanding the plausibility of hepatitis C transmission through air gun inoculation, it is more likely than not that the Veteran contracted this disease through his "long intravenous drug abuse history as noted in the claims file."  As a rationale for this conclusion, the examiner has noted that the "hepatitis C virus is well known to be transmitted by exposure to blood or blood products which in a drug addict is more than likely the use of dirty needles used by other drug abusers."

The Board recognizes that the Veteran himself has denied any history of intravenous drug use.  See Board Hearing Tr. at 3.  Nevertheless, the Board has reason to question the credibility of his account as it is at odds with his VA medical records and examination reports.  See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that, "in the case of oral testimony,[the Board] may properly consider the demeanor of the witness, the facial plausibility of the testimony, and the consistency of the witness's testimony with other [evidence] submitted on behalf of the [claimant]").  Indeed, the Veteran's claims file is replete with clinical findings denoting a prior history of substance abuse, including the illicit use of intravenous drugs.  Moreover, his own representative has flatly conceded that the Veteran has a long history of such substance abuse.  See September 2013 Appellate Brief at 1.  Therefore, the Board finds that, while competent to deny that he ever injected drugs using dirty needles, the Veteran's assertions in his regard are inherently implausible.  Id.  Moreover, the Board finds that the VA examiner's countervailing September 2011 opinion - indicating that the Veteran did engage in intravenous drug use and thereby placed himself at risk for hepatitis C infection -- is far more credible in this instance.  

The Board also finds the above examiner's opinion regarding the etiology of the Veteran's hepatitis C to be otherwise competent and credible and, thus, entitled to great probative weight.  In this regard, the Board considers it significant that the examiner based his September 2011 opinion on a complete review of the claims file, including the information from the foregoing VBA Fast Letter, which contradicted his initial assertions.  The examiner also supported his September 2011 opinion with a rationale that accurately reflects the Veteran's pertinent medical history.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-03 (2008) (applying the Federal Rules of Evidence to find that the probative value of a medical opinion depends on whether the opining clinician is fully informed of the pertinent facts, i.e., history, of the case).  As such, the Board is satisfied that the VA examiner has described the Veteran's hepatitis C in sufficient detail to allow for a fully informed evaluation of his claim.  See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (finding an examination report to be adequate where it describes the disability in sufficient detail for the Board to make a fully informed decision).  

Moreover, there are no contradictory opinions of record, apart from the Veteran's own unsubstantiated statements.  The Board recognizes that the Veteran is competent to opine on medical questions that fall within the realm of common knowledge.  Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011).  Such questions, however, do not include the etiology of his hepatitis C, which requires medical expertise to resolve.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 n.4 (Fed. Cir. 2007) (noting that lay persons are not competent to diagnose cancer); see also Clyburn v. West, 12 Vet. App. 296, 301 (1999) ('Although the Veteran is competent to testify to the pain he has experienced since his [active service], he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with. ').  Even if the Veteran were competent to address such questions, the Board would hesitate to rely on his opinion in this case.  Indeed, through his implausible denial of intravenous drug use, the Veteran has cast doubt on his overall credibility and thereby undermined the evidentiary value of his written assertions and testimony in this appeal.

Accordingly, the Board finds that, on the strength of the VA examiner's September 2011 opinion, and the lack of any similarly probative counterevidence, including the Veteran's own lay assertions, the totality of the record is insufficient to establish a direct nexus between his active service and hepatitis C.  As such, the third and final Hickson element remains unmet in this case and service connection is therefore not warranted on a direct basis.  

Nor is service connection warranted on a secondary basis.  The Board recognizes that the representative for the Veteran has raised this particular theory of entitlement by arguing that the intravenous drug use, which precipitated his hepatitis C, was itself a repercussion of the PTSD for which he is now service connected.  See September 2013 Appellate Brief.  Additionally, the Board acknowledges that the representative has reinforced this argument with medical literature from a VA Web site (http://www.ptsd.va.gov), which notes a general susceptibility to drug addiction among veterans afflicted with PTSD.  See VA National Center for PTSD fact sheet.  Such generic findings can provide important support when combined with an opinion of a medical professional; however, no such opinion addressing the specific facts of this case has been presented.  Cf. Mattern v. West, 12 Vet. App. 222 (1999); Sacks v. West, 11 Vet. App. 314 (1998); Wallin v. West, 11 Vet. App. 509 (1998) (noting that medical literature or treatises can provide important support when combined with an opinion of a medical professional if the article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion).  To the contrary, while the Veteran has been examined and treated extensively for both PTSD and hepatitis C, a nexus between those two disorders has not been clinically established.  

Nor has any there been any other argument or evidence that links those two disorders, including on the basis of substance abuse.  In this regard, the Board observes that compensation for disorders incurred through willful misconduct, to include the abuse of alcohol or drugs, is generally precluded as a matter of law.  See 38 U.S.C.A. §§ 105, 1110 (West 2002); 38 C.F.R. §§ 3.1(n), 3.301 (2013); see also VAOPGPREC 2-97 (Jan. 16, 1997).  Indeed, only where the record establishes that the willful misconduct in question is secondary to, or symptomatic of, a service-connected disability, will compensation for the secondary disorder be allowed.  See Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001).  

In this case, there is no competent evidence showing that the Veteran's intravenous drug use is a symptom of, or otherwise causally linked to, to his service-connected PTSD.  While the representative clearly believes that such an etiological relationship exists, neither he nor the Veteran has the requisite clinical expertise to make that determination.  It follows that the Board has no basis to find that the Veteran's PTSD precipitated his intravenous drug use and thereby contributed to the onset of his hepatitis C.  Therefore, absent any other evidence of connection between those two disorders, the Board finds that, just as the third element of Hickson has not been met in this case, the corresponding element of Wallin also has not been substantiated.

In sum, the Board finds that the evidence of record is insufficient to satisfy the final requirements of the Hickson and Wallin tests and that service connection is therefore unwarranted on either a direct or secondary basis.  The Veteran is also not entitled to service connection under any other theories of entitlement, including the presumptive provisions outlined above.  In reaching these conclusions, the Board remains sympathetic to the Veteran and does in any way wish to diminish his combat-decorated Vietnam-era service.  Nevertheless, the preponderance of the evidence weighs against his claim for service connection for hepatitis C.  Accordingly, while the Board has considered the benefit of the doubt doctrine, that rule is inapplicable and the Veteran's appeal must regrettably be denied.  See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).


ORDER

Entitlement to service connection for hepatitis C is denied.



_____________________________________________
Alexandra P. Simpson
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs