Citation Nr: 1340719 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 10-18 624 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for hepatitis C, to include as due to herbicide exposure. 2. Entitlement to service connection for a liver disability, to include as secondary to hepatitis C. 3. Entitlement to service connection for skin cancer, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from April 1969 to April 1973 with service in the Republic of Vietnam. He is a recipient of several combat decorations, including the Combat Action Ribbon and Purple Heart medal. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. The Veteran was scheduled for a hearing before the Board at the RO in May 2011, but failed to report for the hearing. A request for postponement has not been received and the Board will therefore proceed as if the request for a hearing was withdrawn in accordance with 38 C.F.R. § 20.704(d) (2013). FINDINGS OF FACT 1. The Veteran did not receive a blood transfusion during active duty service. 2. Hepatitis C was demonstrated years after service and is not etiologically related to a disease or injury in service, including exposure to herbicides. 3. A chronic liver disability was demonstrated years after service and is not etiologically related to a disease or injury in service, including exposure to herbicides; the liver disability is etiologically related to nonservice-connected hepatitis C. 4. Skin cancer, diagnosed as basal cell carcinoma (BCC), was demonstrated years after service and is not etiologically related to a disease or injury in service, including exposure to herbicides. CONCLUSIONS OF LAW 1. Hepatitis C was neither incurred in nor aggravated by active service, nor may its incurrence or aggravation be presumed. 38 U.S.C.A. §§ 1110, 1112, 1116 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 2. A chronic liver disability was not incurred in or aggravated by active service and is not caused by or the result of a service-connected disability. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.310. 3. Skin cancer was neither incurred in nor aggravated by active service, nor may its incurrence or aggravation be presumed. 38 U.S.C.A. §§ 1110, 1112, 1116; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (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"-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007). When a chronic disease is shown in service sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.303(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). Service connection may 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). Additionally, for veteran's who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, such as malignant tumors, are presumed to have been incurred in service if such manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). Hepatitis C and Liver Disability The Veteran contends that service connection is warranted for hepatitis C as it was incurred due to herbicide exposure during active service in Vietnam. He also contends that he was exposed to hepatitis C when he received a blood transfusion in 1970 to treat a shrapnel wound and through air gun vaccinations during boot camp. Additionally, the Veteran claims that he developed a chronic liver disability secondary to the hepatitis C infection. The record establishes the presence of chronic hepatitis C and accompanying liver disease. Hepatitis C was diagnosed based on laboratory testing performed at the Des Moines VA Medical Center (VAMC) in June 2008. An August 2008 liver biopsy demonstrated grade I, stage I liver inflammation. The Veteran has not received any specific treatment for hepatitis C, but the infection and chronic liver disease is clearly established. VA regulations provide for a presumption of service connection for certain disabilities associated with herbicide exposure under 38 C.F.R. §§ 3.307 and 3.309 (2013). Hepatitis C and liver inflammation are not subject to this presumption. However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has determined that a Veteran is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Therefore, while service connection on a presumptive basis is not possible for the Veteran's claimed disabilities, the Board will determine whether service connection is warranted as directly due to active duty service, to include exposure to herbicides and the other in-service injuries reported by the Veteran. Service treatment records are negative for evidence of hepatitis C or liver dysfunction. There are no complaints or treatment for either condition and the Veteran's blood work and physical examination were normal at the March 1973 separation examination. Although service records do not contain any findings related to the disabilities on appeal, service personnel records confirm the Veteran's presence in Vietnam during active duty service. His exposure to herbicides is therefore presumed. See 38 U.S.C.A. §§ 1116(f), 1154; 38 C.F.R. § 3.309(e); see also Haas v. Peake, 525 F.3d 1168 (2008); VAOPGCPREC 27-97. Additionally, the Veteran reports that he received air gun vaccinations during active duty. He is competent to report such activities, and his in-service exposure to herbicides and vaccinations are demonstrated. The Veteran also contends that he received a blood transfusion at a Japanese hospital to treat a shrapnel injury during active duty. Although the Veteran is competent to report that he underwent a blood transfusion during service, the Board finds that his reported history is not credible. Service records, while documenting the Veteran's injury and subsequent treatment, are wholly negative for evidence of a blood transfusion. The records verify that the Veteran incurred a shrapnel wound to the left hand in Vietnam in March 1970. The wound was explored and debrided in Vietnam and he was transferred to a US Naval Hospital in Japan for convalescence. The hospital discharge report shows that the Veteran was admitted for 13 days and his hand was treated with Betadine soaks and elevation. Neither the hospital record nor the Veteran's subsequent examinations in April 1970 and March 1973 suggest that a blood transfusion was performed. The Veteran also specifically denied ever receiving a blood transfusion during a July 2008 hepatitis C consultation performed at the Des Moines VAMC. In fact, he never reported an in-service blood transfusion until after his claim for compensation was received in September 2008. The Board finds that the Veteran's recent reports of a blood transfusion during service are not credible based on the contents of the objective service medical records as well as his own conflicting statements regarding his medical history. Thus, an in-service injury consisting of a blood transfusion is not established and cannot serve as the basis for an award of service connection. Regarding the third element of service connection, service and post-service treatment records do not indicate a link between the Veteran's current disabilities and any established in-service injuries. As noted above, service records are negative for complaints or treatment related to hepatitis C and/or liver disease, and the Veteran's systems and blood work were normal at the March 1973 separation examination. There is also no evidence of hepatitis C or liver inflammation until June 2008, 35 years after active duty service, when the Veteran was diagnosed with hepatitis C at the Des Moines VAMC. Furthermore, the Veteran has not reported a continuity of symptoms since active service associated with hepatitis C or a liver disability. The Board discusses the Veteran's reported symptoms in the context of using lay evidence to prove the nexus element of a service connection claim under 38 C.F.R. § 3.303(a) and (d), but not 38 C.F.R. § 3.303(b). See Davidson, 581 F.3d 1313; Walker at 1331. The weight of the competent medical evidence is also against the claim. None of the Veteran's treating physicians have attributed his hepatitis C and liver inflammation to herbicide exposure or vaccinations during service. In fact, during the July 2008 VAMC hepatitis C consultation, the Veteran's VA provider identified several nonservice-related risk factors for hepatitis including a history of IV and intranasal drug use, the sharing of needles, body piercings, numerous tattoos, and the Veteran's incarceration and sexual history. Additionally, the only medical opinion of record specifically addressing the etiology of the Veteran's hepatitis C, that of the March 2010 VA examiner, weighs against the claim. After reviewing the Veteran's claims file, the VA examiner concluded that hepatitis C and its residuals were not due to service, but were instead more likely than not due to the Veteran's own personal risk factors. The VA examiner also considered the Veteran's lay statements regarding his in-service injuries, but concluded the Veteran was not a credible historian based on his denial of a history of drug use previously documented in his VA medical records. The March 2010 VA medical opinion was rendered following an accurate review of the Veteran's medical history and included a well-reasoned and supported basis for the conclusion. It is therefore entitled to substantial probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). As for the Veteran's assertion that hepatitis C was incurred due to shots with air guns during service, VA is aware that despite the lack of any scientific evidence to document transmission of hepatitis C with airgun injectors, it is biologically plausible. Veterans Benefits Administration (VBA), Director Bulletin, 211B (98-110) (Nov. 30, 1998); VBA, Fast letter 04-13 (June 29, 2004). The VA examiner considered the Veteran's reports of air gun vaccinations, but concluded that the more likely source of hepatitis C was the Veteran's other personal risk factors. The Board has also considered the Veteran's statements linking his hepatitis C and liver inflammation to service. Lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428 (2011).. The specific issue in this case, however, the etiology of hepatitis C and liver problems, falls outside the realm of common knowledge of a lay person. Jandreau, 429 F.3d at 1377. The Veteran is competent to testify as to observable symptoms, but his opinion as to the cause of the symptoms simply cannot be accepted as competent evidence. Id. In sum, the post-service medical evidence of record shows that the first evidence of the Veteran's claimed disabilities was many years after his separation from active duty service. There is also no medical evidence that the Veteran's hepatitis C or liver inflammation are related to military service. The Board therefore concludes that the evidence is against a nexus between the Veteran's claimed disabilities and active duty. Insofar as the Veteran contends that his chronic liver disease is secondary to hepatitis C, the competent medical evidence clearly establishes that the two conditions are related. However, as service connection is not warranted for hepatitis C, service connection for a liver disability on a secondary basis is precluded. 38 C.F.R. § 3.310. Accordingly, the Board must conclude that the preponderance of the evidence is against the claims and they are denied. 38 U.S.C.A. § 5107(b). Skin Cancer The Veteran contends that service connection is warranted for skin cancer due to herbicide exposure during active duty service in Vietnam. Although skin cancer and BCC are not subject to presumptive service connection as diseases associated with exposure to certain herbicide agents under 38 C.F.R. §§ 3.307 and 3.309, the Board must still determine whether service connection is warranted for skin cancer as directly due to service. See Combee, supra. The Veteran was diagnosed with BCC at the Des Moines VAMC in July 2008 following a biopsy of a tumor from his cheek. The tumor was removed and a well-healed linear scar of the left meliolabial crease was observed by a VA dermatologist in February 2009. Additionally, as discussed above, the Veteran's exposure to herbicides is presumed based on his active duty service in Vietnam. Therefore, the first two elements of service connection-a current disability and in-service injury-are demonstrated. The record does not establish a nexus between the Veteran's skin cancer and military service. Service records are negative for complaints or treatment related to skin cancer and the Veteran's skin was normal at the March 1973 separation examination. There is also no evidence of a malignant tumor within a year from the Veteran's separation from active duty service to allow for service connection on a presumptive basis. See 38 C.F.R. § 3.307, 3.309. In fact, the earliest evidence of skin cancer dates from July 2008 when a VAMC dermatologist identified a tumor on the Veteran's cheek that had been present for approximately two years. The absence of any clinical evidence for decades after service weighs the evidence against a finding that the Veteran's skin cancer was present in service or in the year immediately after service. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). There is also no competent medical or lay evidence in support of the claim. The Veteran's treating physicians have not identified a link between the Veteran's BCC and active service, to include herbicide exposure. Service connection is also possible for certain chronic disabilities, such as malignant tumors, under 38 C.F.R. § 3.303(b) based on a continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this case, the Veteran has not reported a history of continuous symptoms since active duty service, to include the presence of any skin abnormalities. As the Veteran has not reported a continuity of symptoms since service, service connection under 38 C.F.R. § 3.303(b) is not warranted. The Board has considered the Veteran's statements linking his skin cancer to military service, but as a lay person, he is not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Grover v. West, 12 Vet. App. 109, 112 (1999). The Board acknowledges that the Veteran is competent to testify as to observable symptoms, such as the presence of skin tumors or lesions, but finds that his opinion as to the cause of his skin cancer simply cannot be accepted as competent evidence. See Jandreau at 1376-1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1131, 1336 (Fed. Cir. 2006). In sum, the post-service medical evidence of record shows that the first evidence of skin cancer was more than 30 years after the Veteran's separation from active duty service. In addition, there is no competent evidence that the Veteran's skin cancer is related to active duty and herbicide exposure. The Board therefore concludes that the evidence is against a nexus between the claimed disability and military service. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim and it is denied. 38 U.S.C.A. § 5107(b) (West 2002). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)) defined VA's duties to notify and assist a veteran in the substantiation of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). 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; (3) and that the claimant is expected to provide. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In this case, notice fulfilling the requirements of 38 C.F.R. § 3.159(b) regarding direct and secondary service connection was furnished to the Veteran in a September 2008 letter. The Veteran also received notice regarding the disability-rating and effective-date elements of the claims in the September 2008 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of available treatment reported by the Veteran, including service treatment records and records of VA treatment. Efforts were made to obtain records from the Social Security Administration (SSA), but a July 2009 response from the SSA established that the records associated with the grant of SSA benefits were destroyed. The Veteran was contacted in a July 2009 letter and asked to submit copies of any SSA records in his possession, but no response to this request was received. The Veteran has also reported receiving treatment at a hospital in Japan in the 1970s (at which time he received a blood transfusion) and a private health care provider in the 1990s, but his release form for both facilities was not properly signed or dated. VA notified the Veteran that a new release was required in July 2009, but an additional release form was not submitted. The Veteran again reported receiving treatment with a private doctor on the May 2010 substantive appeal, but did not respond to a May 2010 request from VA for a medical release form. The Court of Appeals for Veterans Claims (Court) has held that VA's duty to assist the Veteran in developing the facts and evidence pertinent to a claim is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). It is the responsibility of Veterans to cooperate with VA. See Caffrey v. Brown, 6 Vet. App. 377, 383 (1994); Olson v. Principi, 3 Vet. App. 480, 483 (1992). It is clear from the above that VA has done its utmost to develop the evidence with respect to the Veteran's claims and any failure to develop the claims rests with the Veteran himself. VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The threshold for getting an examination under the VCAA is low. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Veteran was provided an adequate VA examination and medical opinion in March 2010 in response to his claim for service connection for hepatitis C. The Board acknowledges that a VA examination has not been provided with respect to the claims for service connection for a liver disability and skin cancer, but finds that such examinations or medical opinions are not required by the duty to assist. The record is entirely negative for competent evidence of a link between a liver disability and skin cancer and service. Additionally, the Veteran's liver disease is clearly related to nonservice-connected hepatitis C. As there is no competent evidence of an association between the claimed disabilities and service or a service-connected disability, a VA examination or medical opinion is not required. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. ORDER Entitlement to service connection for hepatitis C, to include as due to herbicide exposure, is denied. Entitlement to service connection for a liver disability, to include as secondary to hepatitis C, is denied. Entitlement to service connection for skin cancer, to include as due to herbicide exposure, is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs