Citation Nr: 1338761 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 08-03 932 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Willie Spruill, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1971 to July 1974. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. Jurisdiction over the case was subsequently transferred to the RO in Winston-Salem, North Carolina. When this case was previously before the Board in January 2012, it was remanded for further development. The case has since been returned to the Board for further appellate action. FINDING OF FACT Hepatitis C was not present in service and is not etiologically related to service. CONCLUSION OF LAW Hepatitis C was not incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the case at hand, the record reflects that the originating agency provided the Veteran with the notice required under the VCAA, by letter mailed in July 2005, prior to the initial adjudication of the claim. Although the Veteran was not provided notice with respect to the disability-rating or effective-date element of the claim until June 2006, after the initial adjudication, the Board finds that there is no prejudice to him in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). As explained below, the Board has determined that service connection is not warranted for hepatitis C. Consequently, no disability rating or effective date will be assigned, so the failure to provide earlier notice with respect to those elements of the claims is no more than harmless error. The Board also finds VA has complied with its duty to assist the Veteran in the development of his claim. In this regard, the Board notes that service treatment records (STRs) and all available post-service medical evidence identified by the Veteran have been obtained. Specifically, in January 2012, the Board remanded the matter to further develop the record by way of obtaining relevant VA treatment records dated from 1976 to 1999. As provided by 38 C.F.R. § 3.159(e)(1), if VA, after continued efforts to obtain Federal records, concludes that it is reasonably certain they do not exist or further efforts to obtain them would be futile, VA is required to provide the claimant with oral or written notice of that fact. The Veteran was provided a supplemental statement of the case in August 2012 which informed him that records from the Salisbury VA Medical Center were requested and records from 1998 to 1999 were received. Any further efforts to obtain VA treatment records would be futile. The Board accordingly finds the originating agency has substantially complied with the Board's remand directives. The Board acknowledges that the Veteran has not been afforded a VA examination and that no VA medical opinion has been obtained in response to his hepatitis C claim, but the Board has determined that VA has no duty to provide an examination or obtain a medical opinion in response to the claim. In this regard, the Board notes that VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. In this case, there is competent evidence of the post-service presence of hepatitis C but there is no competent evidence of the disease in service or competent evidence that the disability may be associated with the Veteran's active service or a service-connected disability. As he has not presented a prima facie case for service connection for hepatitis C, VA is not obliged to provide an examination or obtain an opinion in response to the claim. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim. The Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the Veteran's claim. II. Service Connection A. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, for service connection to be granted for hepatitis C, the evidence must show that hepatitis C infection, risk factor(s), or symptoms were incurred in or aggravated by service. The evidence must further show that there is a relationship between the claimed in-service injury and the veteran's hepatitis C. Risk factors for hepatitis C include intravenous (IV) 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. See VBA training letter TL 01-02 April 17, 2001. A VA Fast Letter (FL) issued in June 2004 (FL 04-13, June 29, 2004) identified "key points" that include 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). Another "key point" was the fact that hepatitis C can potentially be transmitted with the reuse of needles for tattoos, body piercing, and acupuncture. It was concluded in FL 04-13 that the large majority of hepatitis C infections can be accounted for by known modes of transmission, primarily transfusion of blood products before 1992 and injection drug use. The Secretary of Veterans Affairs has determined that there is no presumptive positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-346 (1994); see also Notice, 61 Fed. Reg. 41, 442-449 and 61 Fed. Reg. 57, 586-89 (1996); Notice, 64 Fed. Reg. 59, 232-243 (Nov. 2, 1999). Hepatitis C infection is not presumptively associated with Agent Orange exposure in 38 C.F.R. § 3.309(e). However, notwithstanding the presumption, a claimant can establish service connection for disability due to Agent Orange exposure with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. B. Factual Background and Analysis The Veteran contends that he is entitled to service connection for hepatitis C, as he believes that this condition originated during his active duty service. Specifically, he contends that this condition developed as a result of (1) close physical contact with people that had hepatitis C, (2) exposure to chemicals such as Agent Orange, and/or (3) a wound that required stitches following an injury during active service. The Veteran's STRs do not note a diagnosis of hepatitis C or any form of hepatitis, liver abnormalities, or blood abnormalities. The Veteran had a tattoo below his navel at the time of enlistment and separation, as shown in the respective reports of medical examination. The report of medical history completed by the Veteran in connection with his entrance onto active duty notes that he reported a history of venereal disease, to include gonorrhea. There is no report of any surgeries or blood transfusions during service. The record shows the Veteran was first definitively diagnosed with hepatitis C in June 1998. Subsequent VA and non-VA treatment notes document the progress of chronic hepatitis C infection. The Veteran has thus shown medical evidence of the claimed disorder. However, a Veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). As the Veteran alleged that he was first treated for hepatitis C in 1976, it is significant to note that the record contains a request for treatment records from the Salisbury VAMC dating from 1976. This request failed to yield any records dated prior to 1998. In January 2005, the Veteran reported to a VA physician that he experienced a fever for seven days while in service that he believed was linked to his current hepatitis C infection. The Veteran reported in June 2006 that he was not exposed to any of the risk factors for hepatitis C listed in the VA-provided questionnaire, except for having tattoos or body piercings. He denied a history of intravenous drug use, intranasal cocaine use, high risk sexual activity, hemodialysis, shared toothbrushes or razors, acupuncture with non sterile needles, blood transfusion, or being a health care worker exposed to contaminated fluids. Based on the foregoing evidence, the Board has determined that the Veteran is not entitled to service connection for his hepatitis C. There is no evidence of hepatitis or exposure to risk factors in service, and the Veteran has denied that he had any of the risk factors in service, other than a tattoo below his navel at the time of his enlistment. There is no evidence that he received tattoos or body piercings while on active duty. Moreover, uncontroverted medical evidence shows that the initial diagnosis of hepatitis C was in June 1998, over twenty years after his period of service ended. Although the Veteran has asserted that he was initially treated for hepatitis C in 1976, there is no corroborating evidence of this and the medical evidence of record shows that the Veteran did not report a history of hepatitis C or any liver problems when he sought private medical treatment in 1997 and early 1998. He reportedly gave a history of no known medical problems in connection with a complete medical examination performed in February 2008. Moreover, the records documenting the diagnosis of and treatment for hepatitis C later in 1998 do not refer to any prior history of hepatitis C or any other liver problems. Thus, it appears that the Veteran's current recollection of when his hepatitis C was diagnosed is faulty. In any event, the Board has found the history provided by the Veteran for clinical purposes in 1998 to be more probative than his more recent statements in support of his claim for VA compensation. In essence, the evidence linking the Veteran's hepatitis C to service is limited to the Veteran's own statements. First, the Veteran asserts that his hepatitis infection was the result of being in "close physical contact" with people that had hepatitis C. However, he does not assert, and there is no indication in the record, that he was sexually active with these people or that he came in contact with the blood of any persons with hepatitis C. In a VA-provided questionnaire, the Veteran denied a history of high risk sexual activity. Second, the Veteran asserts that his condition developed as a result of exposure to chemicals, such as Agent Orange. The Board notes that hepatitis C is not a disease listed at 38 C.F.R. § 3.309(e). Thus, it is not presumed by VA to be etiologically related to exposure to herbicide agents used in Vietnam, and the regulatory presumption created by 38 C.F.R. § 3.309(e) does not apply in the Veteran's case. Furthermore, there is no competent evidence of record that the Veteran's hepatitis C is related to Agent Orange exposure or any other chemical exposure. Finally, the Veteran asserts that his hepatitis C developed as a result of a wound and stitches he received after sustaining an injury on a LST in 1972. However, the Veteran does not assert, and the record does not show, that he was exposed to risk factors such as blood transfusions or serving as a health care worker with exposure to contaminated fluids. The Board accepts that the Veteran is competent to report symptoms, treatment and injuries. Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995). The Board acknowledges that the Veteran is competent to describe his risk factors, such as a history of tattoos and/or body piercing. In addition, for purposes of this decision, the Board has no reason to find that the Veteran is not credible in describing his risk factors. However, the Veteran lacks the required expertise to determine the etiology of his hepatitis C. As discussed above, there is no competent evidence suggesting that his hepatitis C is related to his active service. Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). In the instance case, however, the Veteran has not identified the presence of any pertinent symptoms in service, other than a fever, or alleged that he was exposed in service to any of the known risk factors for hepatitis C. To the extent that he believes he began receiving treatment for hepatitis in 1976, the record shows a formal diagnosis of hepatitis C in June 1998. In the Board's opinion, if the Veteran had received treatment dating from 1976, it would be documented in the post-service medical records prior to the actual date of diagnosis in 1998. Accordingly, the Board must conclude that service connection is not warranted for hepatitis C. In reaching this decision, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. ORDER Entitlement to service connection for hepatitis C is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs