Citation Nr: 1339476 Decision Date: 12/02/13 Archive Date: 12/13/13 DOCKET NO. 12-18 381 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for Hepatitis C. ATTORNEY FOR THE BOARD G.R. Waddington, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1965 to July 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied service connection for Hepatitis C. The Virtual VA paperless claims processing system does not contain any additional documents pertinent to the present appeal. FINDING OF FACT The Veteran did not contract Hepatitis C during, or as a result of, his active duty service. CONCLUSION OF LAW The criteria for the establishment of service connection for Hepatitis C have not been met. 38 U.S.C.A. §§ 1101, 1110, 1154, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303(a), 3.304(d) (2013). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the United States Court of Appeals for the Federal Circuit (Federal Circuit) (as noted by citations to "Fed. Cir.") and the United States Court of Appeals for Veterans Claims (Court) (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d) (West 2002); see also 38 C.F.R. § 19.7 (2013) (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the veteran to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law as well as the controlling decisions of the appellate courts). Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107), sets forth VA's duties to notify and assist claimants in substantiating claims for VA benefits. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it must notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In order to satisfy its duty to notify the claimant under the VCAA, the Court held that VA 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 veteran is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). For service connection claims, proper notice of what is necessary to substantiate the claim requires that the claimant be informed of the following five elements: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006); Quartuccio, 16 Vet. App. at 187. All notice under the VCAA should generally be provided prior to an initial decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, a delay in timing of the notice is "cured," and therefore harmless, when a fully compliant VCAA notification letter notice is followed by readjudication of the claim (such as through issuing a Statement of the Case (SOC) or Supplemental Statement of the Case (SSOC)) after the claimant has had an opportunity to submit additional evidence. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370 (2006). Prior to the initial rating decision, a March 2010 letter notified the Veteran of all five elements of service connection, and informed him of his and VA's respective responsibilities for obtaining relevant records and other evidence in support of his claims. Therefore, the duty to notify is satisfied. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Dingess/Hartman, 19 Vet. App. at 484; Quartuccio, 16 Vet. App. at 187. VA's duty to assist under the VCAA includes helping the claimant to obtain service treatment records (STRs) and other pertinent records, as well as performing an examination or obtaining a medical opinion when such is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Veteran's STRs, VA medical records, and private treatment records are in the claims file. He has not identified any other outstanding records or evidence. The duty to obtain relevant records is satisfied. See 38 C.F.R. § 3.159(c). The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Unless the claimant challenges the adequacy of the examination or opinion, the Board may assume that the examination report and opinion are adequate, and need not affirmatively establish the adequacy of the examination report or the competence of the examiner. Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that although the Board is required to consider issues independently raised by the evidence of record, the Board is still "entitled to assume" the competency of a VA examiner and the adequacy of a VA opinion without "demonstrating why the medical examiners' reports were competent and sufficiently informed"); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-1291 (Fed. Cir. 2009) (holding that the Board is entitled to assume the competency of a VA examiner unless the competence is challenged). Id. The June 2010 VA examination and March 2012 addendum opinion are, in combination, adequate for deciding this claim. Both VA examiners reviewed the claims file and provided an explanation for their opinions. In addition, the June 2010 VA examiner reviewed the Veteran's medical history and conducted a physical examination. The March 2012 VA examiner, weighed the medical evidence and provided an opinion that enables the Board to make an informed decision. See Monzingo v Shinseki, 26 Vet. App. 97, 107 (2012) (holding that "examination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion" even when the rationale does not explicitly "lay out the examiner's journey from the facts to a conclusion"). VA's duties to notify and assist under the VCAA have been satisfied. The Veteran has had ample opportunity to participate in the development of his claim. See Arneson v. Shinseki, 24 Vet. App. 379, 389 (2011) (citing Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that any error depriving a veteran of "a meaningful opportunity to participate effectively in the processing of his or her claim . . . must be considered prejudicial")). Merits of the Claim The Veteran argues that his current Hepatitis C was caused by regular exposure to blood while he was in Vietnam during the Vietnam War. Although the Veteran has the disorder, the preponderance of the evidence is against a finding that the disorder is related to service and the appeal is denied. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for the claimed Hepatitis C, there must be competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Veteran is the recipient of the Bronze Star with "V" (valor) device, which is a per se indication that he served in combat. His account of what occurred in combat (here, exposure to blood) is presumed credible under the law for both development and adjudication purposes. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). Further, he is clearly diagnosed as having hepatitis C. However, although the record demonstrates both the in-service incident and the presence of a disability claimed, the law requires that the competent and credible evidence show a nexus to service. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Huston v. Principi, 18 Vet. App. 395, 402 (2004). The standard of proof to be applied in decisions on claims for veterans' benefits is the benefit-of-the-doubt rule set forth in 38 U.S.C.A. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must weigh against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The preponderance of the competent evidence is against a finding that the disorder is related to service. Lay statements submitted by or on behalf of a claimant can be competent with respect to both the diagnosis and the etiology or cause of a disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Thus, the Board may not "categorically" require medical evidence or disregard lay evidence without first assessing its competence. See id. (holding that it was error in a cause-of-death claim to find "categorically" that a medical opinion was required to prove a nexus between the Veteran's service-connected mental disorder and his drowning death, and likewise to reject categorically the veteran's testimony on this issue as not competent merely because she was a lay person); see also Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011) (holding that the Board erred in categorically rejecting lay evidence without analyzing and weighing it). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. See 38 C.F.R. § 3.159(a)(2); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise). Lay evidence is competent if it is provided by a person who has first-hand knowledge of facts or circumstances, or conveys matters that can be observed and described by a lay person. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that appellant was competent to testify as to factual matters of which he had first-hand knowledge, such as experiencing pain in his right hip and thigh in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy). Lay evidence may be competent and sufficient to establish a diagnosis of a condition in the following circumstances: (1) when the condition is simple, such as a broken leg, as opposed to when the condition is more complex, such as a form of cancer; (2) when the layperson is reporting a contemporaneous medical diagnosis, or; (3) when lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372, 1377 & n4 (Fed. Cir. 2007). However, as here, lay testimony is not competent with respect to determinations that are "medical in nature" or require medical knowledge due to their complexity. Barr, 21 Vet. App. at 309; see also Jandreau, 492 F. 3d at 1376-77 (observing that a lay person is not competent to identify more complex conditions such as a form of cancer). For example, the Court held that a veteran was not competent to determine whether he had rheumatic fever, which was a medically complex condition. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The Board must discount the probative value of lay evidence if it finds it is not competent in light of the above guidelines. See King v. Shinseki, 700 F.3d, 1339, 1345 (Fed. Cir. 2012) (noting that lay evidence must "demonstrate some competence") (citing 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.307(b)) (internal quotation marks omitted)); see also Layno, 6 Vet. App. at 469 (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to that fact, and that incompetent testimony must be excluded from consideration). Competent medical evidence, as distinguished from lay evidence, is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a)(1); see also Layno, 6 Vet. App. at 469. Competent medical evidence may include statements conveying sound medical principles found in medical treatises. 38 C.F.R. § 3.159(a)(1). It also includes statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. Id. The competent medical evidence does not link the Veteran's current Hepatitis C to military service-indeed, diagnostic tests performed in September 2006 were negative for Hepatitis C and two VA examiner opinions find that the Veteran's current Hepatitis C was likely caused by events other than blood exposure during military service. The Veteran's STRs and private medical treatment records do not indicate a relationship between the Veteran's current Hepatitis C and his military service. Neither his May 1969 separation examination nor his report of medical history indicate that the Veteran had Hepatitis C when he was in service. In August 2006, laboratory tests-performed after the Veteran underwent a partial colon resection for diverticulitis-revealed mildly elevated levels of liver enzymes. In a June 2010 letter to his physician, the Veteran confirmed that he "first exhibited signs of increased liver enzymes in Sep 2006 upon recovering from a bowel resection." However, laboratory tests performed in September 2006 were negative for Hepatitis C. The Veteran's private treatment records show that he experienced ongoing liver problems of an unknown etiology between 2006 and 2009. In October 2006, a liver biopsy revealed moderate portal inflammation and mild portal fibrosis (stage I/IV) and the Veteran was diagnosed as having chronic hepatitis of uncertain clinical etiology. In November 2006, the Veteran's private physician concluded that "we are most likely dealing with an allopurinol-induced hepatitis." He based his conclusion on the Veteran's clinical and laboratory improvement since he stopped taking allopurinol and commented that he could "come up with no other explanation" for the Veteran's liver problems. In February 2008, the physician observed that the Veteran "has resolved his drug-induced hepatitis." Tests performed in January 2009 revealed that the Veteran had abnormal liver functioning and in April 2009 his physician observed that the abnormalities were likely "alcohol related" because the test results improved when the Veteran abstained from drinking. In addition, a November 2009 sonogram revealed that the Veteran's liver was normal. In May 2009, the Veteran was informed by his insurance company that he had tested positive for exposure to Hepatitis C. In May 2010, the Veteran initiated treatment for Hepatitis C. Thus, the evidence of record establishes that the Veteran's Hepatitis C manifested almost forty years after separation from service. In December 2009, another private physician opined that "it is possible that [t]he [Veteran] may have had acute hepatitis C after his colon surgery in Alaska in 2006 because he was found to have markedly elevated LFTs at that time." The following month (January 2010), the same physician opined that the Veteran's exposure to "a significant amount of blood [in Vietnam] . . . could have been a possible reason for exposure [to Hepatitis C] at that time." The January 2010 opinion noted that the Veteran "has chronic Hepatitis C . . . with no obvious exposure history other than his tour in Vietnam at which time he was exposed to other people's blood topically. This is a possible cause for contracting [H]epatitis C." The Board notes that in VA examinations, the examiners apparently believed that the Veteran served as a medic in Vietnam. While in error in this respect, the error is harmless. As noted above, the Veteran is presumed to have been exposed to blood in service as he alleges. However, the claim is not being denied on the basis of no in-service event, but instead fails on the requirement that the disorder be linked to service by competent evidence. In June 2010, a VA examiner diagnosed the Veteran has having Hepatitis C and opined that his disorder "is less likely as not . . . a result of his military service." The examiner observed that the onset of the Veteran's liver problems coincided with his August 2006 emergency surgery for sigmoid resection in Alaska. She noted that the Veteran's enzyme levels first became elevated in August 2006 and were "extremely elevated" in September 2006, but that blood work performed at the time was negative for Hepatitis C. She also noted the results of the October 2006 liver biopsy, which found chronic hepatitis of uncertain clinical etiology, and that the Veteran was first diagnosed as having Hepatitis C in December 2009 when a second liver biopsy showed grade 1 fibrosis (stage II/IV) with no severe liver damage due to scarring (cirrhosis). She explained that Hepatitis C usually results in liver damage within twenty years of infection and concluded that, had the Veteran contracted Hepatitis C during his service in the Vietnam War, his December 2009 liver biopsy results would have revealed more severe liver damage than stage II fibrosis with no cirrhosis. Thus, the VA examiner concluded that the onset of the Veteran's Hepatitis C occurred after his sigmoid resection surgery in August 2006. Similarly, the March 2012 VA examiner concluded that the Veteran's Hepatitis C "was less likely than not . . . incurred in or caused by the claimed in-service injury, event, or illness." The examiner confirmed that the Veteran experienced intermittent elevations in his liver enzymes between 2006 and 2009 with negative Hepatitis C immunoassay, that a liver biopsy in 2006 revealed that the Veteran had early fibrosis of an unknown etiology (attributed to allopurinol and alcohol), and that the Veteran was diagnosed as having Hepatitis C in 2009. The examiner found that the results of the 2006 liver biopsy indicate that the Veteran's fibrosis began several years prior to 2006 and that this fact, combined with the Veteran's exposure to blood in service, support the claim. However, the examiner also found that the negative HCV immunoassay in 2006 "is unlikely a false negative result" and that "the odds of a false negative test outweigh the overall odds" that the Veteran contracted Hepatitis C in service. The examiner concluded that although the Veteran's Hepatitis C might relate to his service, he is not at least as likely as not to have contracted Hepatitis C after separation from service. The VA examination report and addendum opinion are highly probative evidence, which weighs against the Veteran's claim for service connection for Hepatitis C. The June 2007 examination was rendered by physician who reviewed the claims file and considered the Veteran's medical history, including laboratory test results, and self-reported personal history. In addition, the opinion is supported by a thorough explanation based on stated medical principles and the facts of the case. Similarly, the March 2012 addendum opinion is based on a detailed review of the Veteran's medical history and careful weighing of the objective medical evidence. Thus, the VA examination and the VA addendum opinion provide clear rationales for finding against a relationship between the Veteran's current Hepatitis C and his active duty. The possibility of a medical nexus between the Veteran's current Hepatitis C disorder and his service is not sufficient to establish a claim for service connection. In January 2010, a private physician opined that the Veteran's exposure to blood in service "is a possible cause for contracting [H]epatitis C." The physician's statement is ambiguous-and therefore speculative. It implies that blood exposure in service is both "a possible" cause and "not a possible" cause of the Veteran's Hepatitis C. See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (holding that the use of "may" implies "may not" and, subsequently, that the use of "may" in a statement renders the statement speculative). The probative value of the January 2010 opinion is further undermined by the fact that a December 2009 opinion by the same physician identified the August 2006 colon surgery as a "possible" cause of the Veteran's Hepatitis C. For the same reasons, the March 2012 VA examiner's acknowledgement that the Veteran's Hepatitis C could relate to blood exposure in service is insufficient, in and of itself, to establish service connection-and, according to the examination report, is outweighed by the examiner's finding that the September 2006 test results are a reliable indicator that the Veteran did not contract Hepatitis C prior to separation from service in July 1969. In summary, the January 2010 private medical opinion and the March 2012 VA examiner's comment regarding a possible nexus between the Veteran's Hepatitis C and in-service blood exposure constitute the kind of "pure speculation or remote possibility" that cannot serve as a basis for entitlement to service connection. 38 C.F.R. § 3.102 (2013). The Veteran correctly asserts that the June 2010 VA examiner miscalculated the number of years between his separation from service, in July 1969, and his first-reported liver problems in August 2006. The examiner stated that 59 years had elapsed when in fact 37 years had elapsed between separation and the high enzyme levels found by diagnostic tests in August 2006. This miscalculation does not undermine the VA examiner's opinion, which is based, in part, on the principle that significant liver damage usually results within 20 years of contracting Hepatitis C. Since the 37-year period between service and diagnosis is almost twice the 20-year period noted by the examiner, the June 2010 VA opinion remains probative evidence as to the issue of nexus. Based on the above analysis, the medical nexus element is not satisfied and service connection must be denied under 38 C.F.R. 3.303(a). See Shedden, 381 F.3d at 1166-67. The fact that over 40 years elapsed between service separation, in July 1969, and the first diagnosis of Hepatitis C, in December 2009, further weighs against a relationship to service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that, in assessing whether a claimed disorder was incurred in active service, a proper consideration for the trier of fact is the amount of time that has elapsed since military service). Moreover, the Veteran was diagnosed as having Hepatitis C subsequent to diagnoses for drug-induced and alcohol-related hepatitis and well after the 20-year period identified in the June 2010 VA examination report for liver damage related to Hepatitis C (diagnostic tests show that the Veteran had relatively minor liver damage through December 2009). Thus, the probative evidence weighs against a relationship between the Veteran's Hepatitis C and his military service. The Board has considered the Veteran's statements that his Hepatitis C was caused by in-service exposure to blood from U.S. soldiers and Vietnamese civilians. Specifically, the Board considered the Veteran's contention that his only risk factor for Hepatitis C is frequent blood exposure during the Vietnam War. See February 2010 Claim; March 2010 Veteran's Statement; February 2011 Notice of Disagreement. The Board also considered the Veteran's assertion-based on medical articles that he submitted into evidence-that Hepatitis C can remain undetected for many years after infection. See March 2010 Statement and associated article; July 2012 VA Form 9 and associated article. Whether the Veteran's current Hepatitis C relates to his active duty in Vietnam is a medically complex determination that cannot be made based on lay observation alone. See Jandreau, 492 F. 3d at 1376-77, n.4; see also Barr, 21 Vet. App. at 309. Instead, such a determination must be made by a medical professional with appropriate expertise. See id. The Veteran, as a lay person, does not have the appropriate medical training and experience to render a competent opinion regarding the relationship between his current Hepatitis C and his service. With regard to the medical records submitted into evidence, they suggest that Hepatitis C may develop over decades, but, due to their general nature, do not comment on the Veteran's unique medical history or otherwise show that Veteran's Hepatitis C has progressed slowly since his service. Thus, the Veteran's assertion that his Hepatitis C is related to blood exposure in service is not competent evidence and is outweighed by the June 2010 VA examination and March 2012 VA opinion, which were rendered by medical experts and demonstrate careful review of the Veteran's medical history. See Layno, 6 Vet. App. at 470-71. In a March 2010 letter the Veteran stated that he may have been exposed to Dioxin when he was in the Vietnam War. He is similarly not competent link the presumed exposure to his current disorder. 38 C.F.R. 3.309(e) (2013) ("Diseases associated with exposure to certain herbicide agents."). Thus, the medical evidence does not show and the Veteran does not state, that his Hepatitis C relates to herbicide exposure when he was in Vietnam. Accordingly, the preponderance of the evidence is against the Veteran's claim. Consequently, the benefit-of-the-doubt rule does not apply, and service connection for Hepatitis C is denied. See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. ORDER Entitlement to service connection for Hepatitis C is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs