Citation Nr: 1338273 Decision Date: 11/21/13 Archive Date: 12/06/13 DOCKET NO. 13-00 110 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for hepatitis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Andrew Dubinsky, Associate Counsel INTRODUCTION The Veteran had active service from December 1967 to December 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. A review of the Virtual VA and VBMS paperless claims processing systems does not reveal any additional evidence pertinent to the claim on appeal. FINDING OF FACT The competent evidence of record does not show that the Veteran is currently diagnosed with hepatitis. CONCLUSION OF LAW Hepatitis was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (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. 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); but see Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (when VCAA notice follows the initial unfavorable AOJ decision, remand and subsequent RO actions may "essentially cure [] the error in the timing of notice"). VCAA notice should also apprise the claimant of the criteria for assigning disability ratings and for award of an effective date. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In December 2010 correspondence, the RO advised the Veteran of what the evidence must show to establish entitlement to service connection for his claimed disorder and described the types of evidence that the Veteran should submit in support of his claim. The RO also explained what evidence VA would obtain and make reasonable efforts to obtain on the Veteran's behalf in support of the claim. The letter also provided the Veteran notice regarding the evidence and information necessary to establish a disability rating and effective date in accordance with Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). The Board further notes that the Veteran was provided with a copy of the November 2011 rating decision and the December 2012 statement of the case, which cumulatively included a discussion of the facts of the claim, notification of the basis of the decision, and a summary of the evidence considered to reach the decision. Therefore, the Board concludes that the requirements of the notice provisions of the VCAA have been met, and there is no outstanding duty to inform the Veteran that any additional information or evidence is needed. Quartuccio, 16 Vet. App. at 187. To fulfill its statutory duty to assist, the RO obtained the Veteran's VA and private treatment records and associated the Veteran's service treatment records with the claims file. The Veteran was not provided a VA examination in conjunction with his claim. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a Veteran's claim for benefits, VA must consider four factors: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the Veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, as will be described in greater detail below, VA has no duty to provide a medical examination because the Veteran has not sent any evidence suggesting he has a current disability or persistent or recurrent symptoms of a current disability. Additionally, the Board observes that the Veteran was treated at several army hospitals during his period of active duty and that those records have not been associated with the claims file. As the clinical record cover sheet available states that hepatitis was treated and cured and there is no evidence of a currently diagnosed disability, the Board finds that any evidence of in-service treatment over 45 years ago cannot be pertinent to this claim, and the Veteran was not prejudiced when the RO failed to associate those hospital records with his claims file. Therefore, a remand to have the RO/AMC obtain in-service hospital records that would not be pertinent to the claim is unnecessary. See Soyini v. Principi, 1 Vet. App. 540, 546 (1991) (concluding that remand is unnecessary where it "would result in this Court's unnecessarily imposing additional burdens on the [Board] with no benefit flowing to the veteran"). The Veteran has not made the RO or the Board aware of any other evidence relevant to this appeal that he or the VA needs to obtain. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claim. Accordingly, the Board will proceed with appellate review. Law and Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. 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 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). Generally, where the determinative issue involves a medical diagnosis or causation, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91 (1993). This burden typically cannot be met by lay testimony because lay persons are not competent to offer medical opinions. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, lay persons can provide an eye-witness account of a veteran's visible symptoms. See, e.g., Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991) (competent lay evidence concerning manifestations of disease may form the basis for an award of service connection where a claimant develops a chronic disease within a presumptive period but has no in-service diagnosis of such disease). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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. Jandreau, 492 F.3d at 1376-1377. Also, 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 (2007). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for hepatitis. The Veteran filed his claim in November 2010, asserting that he contracted hepatitis in Vietnam in August 1968. However, a review of the record reveals that the Veteran was never treated for or diagnosed with hepatitis after his discharge from active military service. In this regard, the Board observes that the Veteran was, in fact, treated for hepatitis in service in September 1968. Then, in October 1968, a treatment record noted that infectious hepatitis was treated and cured. The Veteran presented for treatment again in August 1969 for a follow up appointment. This treatment record merely indicates that the Veteran had hepatitis one year prior and that his urine had gotten dark in the previous three to four weeks. There was no additional hepatitis diagnosis. Then, the Veteran's October 1969 separation examination found that his abdomen and viscera were clinically normal. After service, the only notation regarding hepatitis came in a February 2010 treatment record that stated, "Lab work shows he had hepatitis A in the past, this does not cause any future problems." Accordingly, the probative evidence of record does not show a diagnosis of hepatitis at any time during the course of this appeal. See McClain v. Nicholson, 21 Vet. App. 319 (2007). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that the VA's and the Court's interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary, and, therefore, the decision based on that interpretation must be affirmed). In the absence of evidence of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Thus, the preponderance of the evidence is against the Veteran's claim, and service connection for hepatitis is not warranted. As such, the Veteran's appeal is denied. In reaching this conclusion, the Board notes that under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. The preponderance of the evidence, however, is against the claim and that doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for hepatitis is denied. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs