Citation Nr: 1315209 Decision Date: 05/08/13 Archive Date: 05/15/13 DOCKET NO. 08-17 961 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty from March 1968 to March 1970. This matter arises to the Board of Veterans' Appeals (Board) from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, that, in pertinent part, denied service connection for hepatitis C. In an April 2011 decision, the Board denied service connection for hepatitis C. In August 2011, the United States Court of Appeals for Veterans Claims (hereinafter: the Court) remanded that decision back to the Board for additional development. In November 2011, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. to afford the Veteran a VA medical examination. The action specified in the November 2011 Remand completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The Veteran's hepatitis C did not have onset in service and there is no competent evidence that it is related to the Veteran's active military service. CONCLUSION OF LAW The criteria for entitlement to service connection for hepatitis C have not been met. 38 U.S.C.A. §§ 1110, 1154, 5103A, 5107 (West 2002); § 5103 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has reviewed all of the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). However, in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic by 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by showing in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). Hepatitis C is not a disease recognized as chronic by 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) (2012). The law and regulations provide that no compensation shall be paid if a disability is the result of a veteran's own willful misconduct or the abuse of alcohol or drugs. See 38 U.S.C.A. §§ 105 ; 1110 (West 2002); 38 C.F.R. §§ 3.1(n) , 3.301(c) (2012). Direct service connection may be granted only when a disability was incurred or aggravated in the line of duty, and not the result of a veteran's own willful misconduct or, for claims filed after October 31, 1990, the result of his or her abuse of alcohol or drugs. See 38 U.S.C.A. § 105 , 1110 (West 2002); 38 C.F.R. §§ 3.1(n), 3.301 (2011). VA's General Counsel has confirmed that direct service connection for a disability that is a result of a claimant's own abuse of alcohol or drugs is precluded for purposes of all VA benefits for claims filed after October 31, 1990. See VAOPGCREC 7-99 (1999), 64 Fed. Reg. 52,375 (June 9, 1999); VAOPGCREC 2-98 (1998), 63 Fed. Reg. 31, 263 (February 10, 1998). According to 38 U.S.C.A. § 1154(a), the Secretary must consider the places, types, and circumstances of the Veteran's service, his unit's history, his service medical records, and all pertinent lay and medical evidence in the case. More favorable consideration is afforded combat Veterans under 38 U.S.C.A. § 1154(b). The record reflects that the Veteran participated in combat in Vietnam as a field artilleryman. According to 38 U.S.C.A. § 1154(b), because the Veteran is a combat veteran, "The Secretary shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran." "Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary." 38 U.S.C.A. § 1154(b) [excerpt]. The recognized risk factors for contracting the hepatitis C virus (HCV) are intravenous (IV) drug use, blood transfusions before 1992, hemodialysis, intranasal cocaine use, 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, and shared toothbrushes or razor blades. See VBA Fast Letter 211B (98-110) (November 30, 1998). According to VA Fast Letter 04-13 (June 29, 2004), HCV is spread primarily by contact with blood and blood products. The highest prevalence of HCV infection is among those with repeated, direct percutaenous (through the skin) exposures to blood (e.g., injection drug users, recipients of blood transfusions before screening of the blood supply began in 1992, and people with hemophilia who were treated with clotting factor concentrates before 1987). Id. The Fast Letter further states that occupational exposure to HCV may occur in the health care setting through accidental needle sticks. Id. Thus, a veteran may have been exposed to HCV during the course of his or her duties as a military corpsman, a medical worker, or as a consequence of being a combat veteran. Id. According to the Fast Letter, there have been no case reports of HCV being transmitted by an airgun injection. Id. Nevertheless, it is biologically plausible. Id. The Fast Letter concludes that it is essential that the examination report upon which the determination of service connection is made include a full discussion of all modes of transmission, and a rationale as to why the examiner believes the a particular mode of transmission was the source of the veteran's hepatitis C. Id. The Veteran's service treatment records, including the March 1970 separation examination, are negative for a diagnosis of hepatitis C or any indication of a liver disorder or other possible symptoms of hepatitis C. Moreover, the Veteran does not contend that he was diagnosed with hepatitis C or treated for symptoms associated with hepatitis C during service. In September 2005, the Veteran claimed service connection for hepatitis C. The RO obtained VA outpatient treatment reports that confirm a diagnosis of hepatitis C as early as 1998. These reports fulfill the Veteran's duty to show a current diagnosis for the claimed disability. A March 2005 report reflects the following risk factors for hepatitis C: IVDU [intravenous drug use] in 1968-69; more than 10 sexual partners; tattoo three years ago; intranasal cocaine use; and, questionable military exposure. In December 2005, the Veteran reported that he incurred hepatitis C as a result of unsterilized air-gun injections in service and/or exposure to human excrement when seeking cover in rice paddies in Vietnam. In June 2006, he reported that while serving in Vietnam, he had to gather human body parts. In his May 2007 notice of disagreement, he reported that he was treated for hepatitis after active service in December 1970 and again on February 26, 1972. In June 2008, the RO obtained a VA Form 10-10, Medical Certificate and History, dated in 1972, that mentions that the Veteran was treated for hepatitis in December 1970 at KUMC [Kansas University Medical Center] and that on the date of the report, February 26, 1972, his current diagnosis was hepatitis. As noted in the Introduction, in April 2011, the Board denied service connection for hepatitis C. The basis of this denial was an absence of relevant medical evidence during active service. In August 2011, the Court remanded that decision back to the Board pursuant to a joint motion for remand (hereinafter: the joint motion). The joint motion calls for the Board to consider obtaining an examination or medical opinion to address the plausibility of the Veteran's claimed exposure to the hepatitis C virus via air-gun vaccinations during active service and via exposure to human blood during combat. The Board was also instructed to search for additional post-service VA and other medical records. An April 2012 VA examination report reflects that the examiner considered the Veteran's reported exposure to hepatitis virus via air-gun vaccinations and exposure to blood on the battlefield. The examiner determined that the Veteran's hepatitis C was unrelated to those alleged in-service events. The examiner explained that for hepatitis C to have been spread via human blood on the battlefield, the blood splatter must contain hepatitis C virus, which is "very unlikely," and then the Veteran must have an open wound, which he had not reported. The VA examiner also concluded that it is "very unlikely" that an air-gun vaccination during active service had transmitted hepatitis C virus. The examiner stated that the probability that a soldier ahead of him in the vaccination line actually had hepatitis C is "miniscule." Furthermore, the likelihood that there was contaminated blood on the injector part of the air-gun itself was "next to impossible." After opining that the Veteran's hepatitis C had not resulted from combat in Vietnam or from air-gun-delivered vaccinations, the April 2012 VA examiner then offered alternate etiologies for hepatitis C. The April 2012 VA health-professional considered the Veteran's reported intravenous drug use, nasal drug abuse, and multiple sex partners during active service. The Veteran's tattoo was eliminated as a potential source of hepatitis C because it was reportedly attained after hepatitis C developed. The examiner concluded that the "most likely" sources of the Veteran's hepatitis C were multiple sexual partners and/or intravenous drug use. The examiner mentioned that these risk factors occurred during active service. The examiner noted the documented hepatitis infection in December 1970, only months after active service; however, she observed that the Veteran has both hepatitis C and hepatitis B antibodies and it is impossible to tell from the available record which type of hepatitis the Veteran was treated for in 1970 and 1972. The examiner also explained that the incubation period for hepatitis is one to six months, although most patients show no symptoms of hepatitis C and there was no hepatitis C test at that time anyway. In a January 2013 addendum report, the April 2012 VA examiner confirmed that all the pertinent medical history had been reviewed prior to offering the opinion. In January 2013, VA also obtained an independent medical opinion concerning the etiology of the Veteran's hepatitis C. In that opinion, another VA physician noted that the pertinent medical history had been reviewed and concluded that there was no hepatitis C or any other indication of a liver disorder shown during active service. The medical authorities have concluded that the Veteran did not contract hepatitis C during active service by way of contact with human blood or feces in combat or while receiving airgun vaccinations. The negative medical opinions that reject these alleged avenues of infection are based on accurate facts and supported by a rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is accorded no weight). Thus, clear and convincing evidence, to the effect that the Veteran did not contract hepatitis C during active service by way of contact with human blood or feces in combat or while receiving air-gun vaccinations, has been submitted. To bolster this conclusion, the April 2012 VA medical opinion attributes hepatitis C to multiple sex partners and/or intravenous drug use. Concerning risky sexual activity and/or intravenous drug use, there is some evidence that these activities occurred during active service. The Veteran has reported intravenous drug use in 1968 and 1969, during the Veteran's period of active military service, and a service treatment record notes treatment in Vietnam for gonorrhea and carbuncles, which suggests that the Veteran did engage in risky sexual activity during active service. However, as the Board has noted previously, there is no evidence of hepatitis or any other liver abnormality in service. Hepatitis is not considered a chronic condition, and the earliest post-service evidence of hepatitis is in December 1970, months after service. Furthermore, it is unclear from the available medical records which type of hepatitis the Veteran was suffering from in December 1970. Multiple medical professionals have been asked to offer an opinion concerning the etiology of the Veteran's hepatitis C infection and have all concluded that it is less likely than not the Veteran's disability had onset in service or was caused by or otherwise related to the Veteran's active military service. They have provided a rationale for their conclusions that is consistent with the evidence of record and the known risk factors for hepatitis C. As noted above, injections by air gun are not a recognized risk factor for hepatitis C based on the available scientific data. See VBA Fast Letter 211 (04-13). While VBA acknowledges that it is biologically plausible that the disease could be transmitted via air gun, the fact that such transmission is within the realm of possibility, does not make transmission by this method probable or help establish that the Veteran in fact contracted hepatitis C in this manner. Likewise, exposure to human excrement is not a known risk factor for hepatitis C. See VBA Fast Letter 211B. While the medical experts in this case considered the Veteran's allegations that he was exposed to hepatitis C in service due to handling body parts, exposure to human waste, or receiving an airgun injection, they ultimately concluded based on a review of all the evidence and their own medical expertise that these factors were less likely than not the cause of the Veteran's current hepatitis C infection. The Board finds that the conclusions of these medical experts are highly probative. Additionally, the Board notes that to the extent that the Veteran's hepatitis C was contracted due to intravenous drug use, drug abuse cannot form a basis of a service connection claim. See 38 U.S.C.A. § 1110. While the Veteran has offered his own opinion as to the etiology of his hepatitis C, he has not demonstrated that he has any knowledge or training in determining the etiology of such conditions. In other words, he is a layman, not a medical expert. The Board recognizes that there is no bright line rule that laypersons are not competent to offer etiology opinions. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (rejecting the view that competent medical evidence is necessarily required when the determinative issue is medical diagnosis or etiology). Evidence, however, must be competent evidence in order to be weighed by the Board. Whether a layperson is competent to provide an opinion as to the etiology of a condition depends on the facts of the particular case. In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) drew support from Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) for support for its holding. Id. In a footnote in Jandreau, the Federal Circuit addressed whether a layperson could provide evidence regarding a diagnosis of a condition and explained that "[s]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although the Veteran seeks to offer etiology opinions rather than provide diagnoses, the reasoning expressed in Jandreau is applicable. The Board finds that the question of whether the Veteran currently has hepatitis C due to exposure in service is too complex to be addressed by a layperson. This connection or etiology is not amenable to observation alone. Rather it is common knowledge that such relationships are the subject of extensive research by scientific and medical professionals. Hence, the Veteran's opinion of the etiology of his current disability is not competent evidence and is entitled to low probative weight. The Board finds that the other evidence of record, including VA medical opinions, service treatment records, and post-service medical records are more probative than the Veteran's lay statements concerning the etiology of his hepatitis C. For all the above reasons, entitlement to service connection for hepatitis C is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). The Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from 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 claimant is expected to provide. This notice must be provided prior to an initial unfavorable 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). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, although the notice provided did not address either the rating criteria or effective date provisions that are pertinent to the appellant's claim, such error was harmless given that service connection is being denied, and hence no rating or effective date will be assigned with respect to this claimed condition. Here, the VCAA duty to notify was otherwise satisfied by a letter sent to the Veteran in October 2005. This letter informed the Veteran of what evidence was required to substantiate his claim, as well as of VA and the Veteran's respective duties for obtaining evidence. VA also has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service treatment records, as well as VA treatment records. The Veteran was provided an opportunity to set forth his contentions during the November 2009 videoconference hearing before a Veterans Law Judge, but withdrew his hearing request. The appellant was afforded a VA medical examination in April 2012 and January 2013. The examinations are adequate and probative for VA purposes because the examiners relied on sufficient facts and data, provided a rationale for the opinions rendered, and there is no reason to believe that the examiners did not reliably apply reliable scientific principles to the facts and data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Entitlement to service connection for hepatitis C is denied. ____________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs