Citation Nr: 1316342 Decision Date: 05/17/13 Archive Date: 05/29/13 DOCKET NO. 05-17 773A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a rectal disorder. 2. Entitlement to service connection for hepatitis C. ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran served on active duty from August 1964 to July 1968, from November 1969 to December 1971, and from August 1975 to November 1983. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center in Philadelphia, Pennsylvania. The RO in Cleveland, Ohio, currently has jurisdiction of the claims. The claims were remanded by the Board for additional development in December 2008 and January 2012. The Board also remanded a claim for service connection for an acquired psychiatric disorder. Service connection for chronic adjustment disorder, not otherwise specified, was subsequently granted in a February 2013 rating decision. That issue is no longer before the Board for appellate review. The issues of entitlement to increased ratings for left kidney stone and left ear hearing loss have been raised by the record, but have not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over them and they are referred to the RO for appropriate action. FINDINGS OF FACT 1. The Veteran's recurrent rectal abscesses are not related to his military service. 2. The Veteran's hepatitis C is not related to his military service. CONCLUSIONS OF LAW 1. A rectal disorder was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 2. Hepatitis C was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Letters from the RO dated in October 2003 and June 2008 advised the Veteran of the elements of the notice requirements. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The June 2008 letter also provided the Veteran with notice of what type of information and evidence was needed to establish disability ratings, as well as notice of the type of evidence necessary to establish an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The claims were readjudicated in an August 2008 supplemental statement of the case. Accordingly, with the June 2008 letter, the RO effectively satisfied the remaining notice requirements with respect to the issues on appeal. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (finding that the issuance of a fully compliant notification followed by readjudication of the claim is sufficient to cure a timing defect). In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service and VA treatment records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There has been substantial compliance with the Board's December 2008 and January 2012 remands as adequate VA examinations to determine the etiology of the Veteran's conditions were conducted. 38 U.S.C.A. § 5103A (d); 38 C.F.R. § 3.159; see Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. Service connection may be established for disability resulting from personal injury incurred in or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, 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. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran seeks entitlement to service connection for a rectal disorder, manifested by multiple rectal abscesses, and hepatitis C. Medically recognized risk factors for hepatitis C include: (a) transfusion of blood or blood product before 1992; (b) organ transplant before 1992; (c) hemodialysis; (d) tattoos; (e) body piercing; (f) intravenous drug use (with the use of shared instruments); (g) high-risk sexual activity; (h) intranasal cocaine use (also with the use of shared instruments); (i) accidental exposure to blood products as a healthcare worker, combat medic, or corpsman by percutaneous (through the skin) exposure or on mucous membrane; and (j) other direct percutaneous exposure to blood, such as by acupuncture with non-sterile needles, or the sharing of toothbrushes or shaving razors. See VBA Training Letter 211A (01-02), dated April 17, 2001. The Veteran's service treatment records include numerous complaints, symptoms, and diagnoses of gastrointestinal disorders, to include viral gastroenteritis. These include multiple episodes of diarrhea and a report specifically noted rectal bleeding in December 1979. Service treatment records also show that the Veteran had two risk factors for hepatitis C, namely having undergone surgical operations and having a documented history of drug use. Post-service medical evidence reveals that since the inception of his claim, the Veteran has been diagnosed on several occasions with perirectal abscess, and that he had problems with perirectal absecesses shortly after his discharge from service and in the years prior to filing his claim. Post-service evidence also reveals a diagnosis of hepatitis C and a documented history of drug use after his separation from military service. Given the in-service and post-service evidence and the corroborated in-service and post-service risk factors for hepatitis C, the Board determined that VA examinations were needed to determine the etiology of the Veteran's diagnosed rectal disorder and hepatitis C. The Veteran underwent a rectum and anus VA examination and a liver, gallbladder and pancreas VA examination in March 2010. Both were previously determined by the Board to be inadequate and will not be discussed. A VA examination was conducted in May 2012, at which time hepatitis C was diagnosed. Risk factors identified by the VA examiner include other direct percutaneous exposure to blood, namely the Veteran's report of sharing a razor that was passed around to all the inmates while he was incarcerated approximately five years previously, though he did not recall being cut at that time as he used the razor carefully; acupuncture on his back about five years prior; multiple right knee surgeries between 1968 and 2004; and unprotected sex approximately 10 years prior with a woman who admitted to the Veteran that she had hepatitis C. The examiner reported that an April 2007 abdominal ultrasound contained an impression of normal size liver with diffuse hyperechoic echotexture suggestive of fatty metamorphoses or chronic hepatitis. It was the examiner's opinion after review of the evidence of record that the Veteran's hepatitis C was "less likely as not" a result of service. The examiner explained that the Veteran's strongest risk factor was his reported history of unprotected sex after service with an admittedly hepatitis C positive female. The examiner also explained that when considering hepatitis C exposure, two forms of drug abuse are considered risk factors, IV drug use and intranasal cocaine. The Veteran denied IV drug use in or after service. The Veteran also denied cocaine use at the time of the May 2012 VA examination, but the examiner noted his history of "light" cocaine use for "a couple of years" while in service at the time of the March 2010 VA examination. The examiner indicated that this was a weaker risk factor when compared to unprotected sex with a known hepatitis C-infected individual. The Veteran's history of sharing a razor also appeared to be a weaker risk factor since he had used it carefully and did not report a deep cut involving a large amount of blood. Acupuncture and multiple surgeries were also weaker risk factors since they are typically done under sterile conditions. A rectum and anus conditions VA examination was also conducted in May 2012, at which time it was noted that the Veteran had been diagnosed with rectal abscess 10 years ago. The Veteran reported that he had a rectal abscess for about 10 years, but was asymptomatic at the time of the examination, although he reported that he had experienced a flare-up a few months previously, for which he was took antibiotics for a "couple" of weeks. He reported that flare-ups occurred every few years and that he had the condition about four or five times in his life. The Veteran recalled being on a port-a-potty while in the hospital for his knee while in service during the 1980s and felt his rectal abscess may be related to that. The examiner reported that the Veteran did not have any findings, signs, or symptoms attributable to the diagnosis of rectal abscess. It was the examiner's opinion after review of the evidence of record that the Veteran's history of recurrent rectal abscess was "less likely as not" related to his military service. The rationale used in support of this opinion was that the Veteran's gastrointestinal diagnoses in service did not mention associated rectal abscess and that the Veteran reported he first had a rectal abscess after service in 1985. The preponderance of the evidence of record is against the claim for service connection for hepatitis C. The Board acknowledges the in-service risk factors reported by the Veteran and corroborated by the record. However, the May 2012 VA examiner determined that the Veteran's hepatitis C is "less likely as not" related to service, to include the in-service surgeries and intranasl cocaine use. This opinion was based on a review of the evidence of record, a medical examination, and the history as reported by the Veteran and was supported by an adequate rationale. Accordingly, this evidence is afforded high probative value. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (finding a factor for assessing the probative value of a medical opinion includes the thoroughness and detail of the opinion). Moreover, the opinion provided by the VA examiner outweighs the competent and assertions made by the Veteran regarding the etiology of his hepatitis C. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The preponderance of the evidence of record is also against the claim for service connection for a rectal disorder. The Board acknowledges the in-service gastrointestinal problems experienced by the Veteran and the in-service notation of rectal bleeding. However, the May 2012 VA examiner determined that the Veteran's history of recurrent rectal abscess was "less likely as not" related to service, to include the in-service gastrointestinal problems. This opinion was based on a review of the evidence of record, a medical examination, and the history as reported by the Veteran and was supported by an adequate rationale. Accordingly, this evidence is afforded high probative value. See Prejean, 13 Vet. App. at 448-9. Moreover, the opinion provided by the VA examiner outweighs the assertions made by the Veteran regarding the etiology of his rectal abscess. See Jandreau, 492 F.3d at 1372; see also Buchanan, 451 F.3d at 1331. As the preponderance of the evidence is against the claims for entitlement to service connection for a rectal disorder and hepatitis C, the provisions regarding resolution of reasonable doubt are not applicable. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a rectal disorder is denied. Service connection for hepatitis C is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs