Citation Nr: 1338666 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 12-14 576A ) DATE ) ) On appeal 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 C. Jones, Associate Counsel INTRODUCTION The Veteran had active military service from July 1976 to January 1979. This case comes before the Board of Veterans' Appeals (Board) on appeal of a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. FINDING OF FACT Hepatitis C was not manifested in active service and any current hepatitis C is not caused or aggravated by such service. CONCLUSION OF LAW The criteria to establish service connection for hepatitis C have not been met. 38 U.S.C.A. §§ 1131 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist When VA receives a complete or substantially complete application for benefits, it must 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. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA's duty to notify has been satisfied through notice letters dated May 2009 and September 2009 that fully addressed all notice elements. These letters informed the Veteran of what evidence was required to substantiate her claim, and of the Veteran's and VA's respective duties for obtaining evidence. The Veteran was requested to submit any evidence in her possession and has been afforded a meaningful opportunity to participate effectively in the processing of her claim and given ample time to respond. In light of the above, the Board finds that all notices required by VCAA and implementing regulations were furnished to the Veteran and that the VA's duty to notify has been satisfied. VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2013). Service treatment records are associated with the claims file. All post-service treatment records and reports identified by the Veteran that are available have also been obtained. In this regard, the Board notes that the Veteran has indicated that she received treatment from the Bethesda Naval Hospital. A request was sent to the National Personnel Records Center in August 2009 seeking treatment records from Bethesda Naval Hospital. However, the response received from National Personnel Records Center indicated that no records were located. See, e.g., December 2009 Request for Information. The Veteran has not identified any additional records that should be obtained prior to a Board decision. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159 (2013). The Board notes that a VA examination was not provided in conjunction with this service connection claim, and the evidence of record does not warrant one. See 38 C.F.R. § 3.159(c)(4) (2013). VA has a duty to provide a VA examination when the record lacks evidence to decide the veteran's claim and there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. Id.; see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). In the present case, there is nothing in the record suggesting the Veteran's diagnosed hepatitis C is etiologically related to active service. In fact, the specific event asserted to be the cause of the hepatitis, a blood transfusion performed in connection with childbirth, was stated to have occurred in March 1979, several months following discharge from active service. She has not identified, and the record does not otherwise show, any risk factors specific to her active service. For these reasons, even under the low threshold of McLendon, there is no duty to afford an examination in this case. Analysis Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Where the veteran asserts entitlement to a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303(b) by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, as hepatitis C is not listed as a chronic disease under 38 C.F.R. § 3.309(a), the provisions of 38 C.F.R. § 3.303(b) pertaining to continuity of symptomatology do not apply in the instant case. In adjudicating these claims, the Board must assess the competence and credibility of the Veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet). In reviewing the evidence of record, the Board notes that the Veteran has been diagnosed with hepatitis C. However, the competent, probative evidence of record does not etiologically link the Veteran's current disability to her service or any incident therein. Service treatment records (STRs) are absent treatment for, or diagnosis/manifestations of, hepatitis C during the Veteran's period of active service. At the time of her separation examination in January 1979, she was not diagnosed with hepatitis C nor did she report experiencing any symptoms associated with hepatitis C. A review of the Veteran's post-service treatment records indicate a diagnosis of and treatment for hepatitis C. The earliest reference to a diagnosis of hepatitis appears to be a July 2009 VA clinical record. Such treatment reports do not address the etiology of the disease. The Board acknowledges the various lay statements in support of the Veteran's claim. Specifically, the Veteran asserts that she contracted hepatitis C in March 1979, approximately 2 months after active service. The Veteran indicates that she received a blood transfusion while giving birth at Bethesda Naval Hospital. She concedes that she was not on active duty at the time she contracted hepatitis C, but that her pregnancy, which occurred in service, was the cause of the blood transfusion. See August 2009 Statement is Support of Claim. The Veteran provided additional lay statements which indicate that her hepatitis C was the result of a blood transfusion conducted after the Veteran's separation from active service. The Board understands the Veteran's reasoning that, if not for the in-service pregnancy, the post-service blood transfusion, to which she attributes her current hepatitis, would not have occurred. While this may be true, the fact remains that there must be an in-service event or injury to which the current diagnosis can be linked. Here, the contended injury in question is the transfusion itself. As this clearly occurred after separation from active duty, an award of service connection on this basis is not warranted. The fact that, but for the pregnancy, there would not have been any transfusion is not found to be relevant here. The question for consideration is whether a current disability can be related to an incident of service. There is no contention that the pregnancy itself led to hepatitis, only that it led to the post-service transfusion. This is insufficient for an award of service connection. Again, there is no evidence relating the current disability to active service. In sum, the Board finds that there is no evidence of hepatitis C during active service. The threshold question is whether there is sufficient evidence to establish an etiological link between the Veteran's current diagnosis of hepatitis C and her active service. The Board finds that the preponderance of the evidence is against the Veteran's claim. The Veteran has produced no competent evidence or medical opinion in support of her claim that her hepatitis C is the result of an in service incident or has any other etiological relationship to her active service. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for hepatitis C is not warranted. ORDER Entitlement to service connection for hepatitis C is denied ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs