Citation Nr: 1316185 Decision Date: 05/16/13 Archive Date: 05/29/13 DOCKET NO. 09-16 021 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The Veteran had active service from March 1979 to March 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Portland, Oregon. The Veteran appeared at a Travel Board hearing at the RO before the undersigned Veterans Law Judge in March 2011. A transcript of the hearing is of record. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. In September 2012, the Board remanded the Veteran's claim for additional development. The claim has since been returned to the Board for further appellate action. The RO has obtained the Veteran's VA treatment records and he was afforded a VA examination in October 2012, thus the Board is satisfied there was substantial compliance with its remand order. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDING OF FACT The Veteran's hepatitis C did not manifest during active military service, and has not otherwise been shown to be related to service, to include as a result of air gun injections. CONCLUSION OF LAW Hepatitis C was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 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. 38 C.F.R. § 3.159(b)(1). Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in October 2007. In the letter, the RO informed the Veteran of what evidence was required to substantiate the claims for service connection and of the Veteran's and VA's respective duties for obtaining evidence. In the letter the RO also provided notice with regard to how VA assigns disability ratings and effective dates in the event that service connection is established. As such, the VCAA duty to notify was satisfied by way of the October 2007 letter. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The Board finds that all necessary development has been accomplished. The RO has obtained the Veteran's service treatment records and VA treatment records. The Veteran also submitted statements. Neither the Veteran 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. The Veteran was afforded a VA medical examination in October 2012. The examiner, a medical professional, obtained an accurate history and listened to the Veteran's assertions. The examiner provided the Board with sufficient information to decide the issue on appeal. Therefore, the Board finds that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist 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, 16 Vet. App. 183. Also, in Bryant v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the regulation. They consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, during the March 2011 Board personal hearing, the VLJ fully explained the issue on appeal. The Veteran was assisted at the hearing by an accredited representative from the Oregon Department of Veterans' Affairs, and the VLJ and the representative asked questions regarding the nature and etiology of the Veteran's claimed Hepatitis C. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims file that might have been overlooked or was outstanding that might substantiate the claim, and specifically inquired as to whether the Veteran had any private treatment records or medical opinions as to the etiology of his Hepatitis C. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or his representative. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error in notice provided during the Veteran's hearing constitutes harmless error. Service Connection The Veteran maintains that he contracted hepatitis C as a result of the use of jet gun injectors for in-service vaccinations that were not sterilized between uses. Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran testified he was first diagnosed with hepatitis C in 1989 when he gave plasma at a plasma bank. He said he later sought treatment from a doctor. An April 1996 VA treatment record states that the Veteran was diagnosed with Hepatitis C in November 1995. Beginning in July 1998 the Veteran underwent a year-long course of treatment for hepatitis C at the VA. The Veteran testified that he was given air gun injections during basic training in service. He said that the people giving the shots did a "quick little wipe with an alcohol swab" to clean the guns. The Veteran said he bled from the shot. He testified that the process looked unsanitary to him. The Veteran testified that he had not spoken with his doctors about whether the air gun injections could have caused his hepatitis C and that they have given him "every excuse except the air guns." An April 1996 VA treatment record reflects that the Veteran used heroin in 1986 and also used cocaine. At an April 1997 VA appointment, the Veteran reported he shared needles a few times around 1985 and had some unprotected sex during the same time frame. A June 1997 VA treatment record suggests the Veteran contracted hepatitis C from his use of needles. In July 1997 he reported sharing needles a few times in 1990 and having some unprotected sex in 1993. In September 2005 he reported he used cocaine for five years ending in 1985. At a May 2003 VA mental health examination he reported he started using cocaine after service in 1988 or 1989. The Veteran was afforded a VA examination in October 2012. The examiner noted the Veteran had been diagnosed with hepatitis C in 1996. The Veteran reported he got a tattoo three years after leaving service and had had unprotected sex several times over the years. The examiner also noted the Veteran's VA treatment records reflected reports of sharing needles during intravenous drug use. The examiner opined that the Veteran at least as likely as not contracted hepatitis C from one of his known, documented risk factors around 1985. He further stated: "It would be speculation to attribute Hep C to military service with currently available information. It is my opinion that air-gun injection during military is significantly less likely to be a risk factor for Hep C (I am not aware that it is a risk factor); while his substance abuse and unprotected sex put him at a clearly defined risk for Hep C." In a May 2009 statement the Veteran argued that he has few to no other risk factors for hepatitis C and that the air gun injectors were the cause. In March 2011 the Veteran submitted numerous Internet print-outs of medical articles and summaries, a VA Fast Letter, minutes from a U.S. Food and Drug Administration meeting, and prior Board decisions, which he indicates show a relationship between air gun injections and the development of hepatitis. According to VBA Fast Letter 04-13 (June 29, 2004), the large majority of hepatitis C virus infections can be accounted for by known modes of transmission, primarily transfusion of blood products before 1992 and injection drug use. It is also possible to transmit the virus through sex and tattoos. Despite the lack of any scientific evidence documenting transmission of hepatitis C virus with air gun injectors, the letter states that it is biologically plausible. However, the fact that such transmission is within the realm of possibility, by itself, does not support a finding that the Veteran contracted hepatitis C via air gun injection. Medical evidence that is speculative, general or inconclusive in nature generally does not support a claim. See 38 C.F.R. § 3.102 (providing that reasonable doubt requires "an approximate balance of positive and negative evidence," and the doubt must be "within the range of probability as distinguished from pure speculation or remote possibility"); Obert v. Brown, 5 Vet. App. 30, 33 (1993). Moreover, the Veteran does not allege that he was injected with an air gun with blood on it, and in fact indicated that the tips of the air guns were cleaned off, albeit rapidly. Only one medical opinion as to the etiology of the Veteran's hepatitis C is in evidence in this case, the opinion of the October 2012 VA examiner. The examiner opined that it is less likely than not that the Veteran's hepatitis C was incurred in or caused by service. Rather, the examiner opined that it was more likely that the Veteran contracted hepatitis C from one of his documented post-service risk factors including intravenous drug use, unprotected sex, and a tattoo. Thus, the examiner's opinion weighs against a finding of service connection in this case. Finally, the Veteran himself, as a lay person, does not have the medical training or expertise to render a competent opinion as to whether he may have contracted hepatitis C from air gun injections, as this is a determination that is too complex to be made based on lay observation alone. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007) (observing that a layperson can be competent to identify conditions that are simple, such as a broken leg, but is not competent to identify more complex conditions such as a form of cancer); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (holding that lay testimony is competent as to matters capable of lay observation, but not with respect to determinations that are "medical in nature"); Layno v. Brown, 6 Vet. App. 465, 469- 71 (1994) (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration, and that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise). Although the Veteran is competent to state that he received shots by air gun injector in service and the Board finds his testimony credible in that regard, he is not competent to testify as to the etiology of his current hepatitis C infection. The Veteran has identified other Board decisions that granted service connection for hepatitis C given exposure to air gun injections in service. However, each case before the Board presents a unique set of facts and circumstances, so that application of the law and regulations to each individual case may produce different results. Although reasonable doubt is to be resolved in favor of a claimant, reasonable doubt exists where there is an approximate balance of positive and negative evidence that does not satisfactorily prove or disprove the claim. In the Veteran's case, exposure to hepatitis C through blood from someone infected with the disease via air gun inoculation is based on speculation and is thus not positive evidence, so that there is not an approximate balance of positive and negative evidence to which the benefit of the doubt standard of proof applies. 38 U.S.C.A. § 5107(b), 38 C.F.R. § 3.102. The only medical opinion evidence weighs against a finding of service connection. Thus, the Board finds service connection for hepatitis C is not warranted. ORDER Service connection for hepatitis C is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs