Citation Nr: 1316823 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 05-37 778 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for hepatitis C. 2. Entitlement to service connection for a skin disability, to include as due to herbicide exposure. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The Veteran had active service from October 1965 to October 1967. This matter came before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Veteran testified before a Veterans Law Judge (VLJ) at the RO in January 2010. In July 2012 he was notified that the VLJ before whom he testified was no longer employed by the Board and advised that he could request an additional hearing; he did not respond. The instant issues were remanded for additional development in November 2012. The Board notes that a Virtual VA e-file exists for this Veteran, and that this file was reviewed in the adjudication of the Veteran's appeal. The Board noted in its November 2012 remand that the issue of a waiver of overpayment had been raised by the record but had not been adjudicated by the Agency of Original Jurisdiction (AOJ). See the Veteran's statement of November 2007. It is not clear on review of the claims file that this issue has been addressed by the AOJ. Therefore, is it referred to the AOJ for appropriate action. The Board also notes that in a March 2013 statement, the Veteran alleged that he is unemployable, and has thus raised a claim of entitlement to a total rating based on unemployability (TDIU). This claim has not been adjudicated by the AOJ, and is therefore referred for appropriate action. FINDINGS OF FACT 1. Hepatitis C is unrelated to service. 2. A claimed skin disability is not shown to be related to service, to include exposure to herbicides therein. CONCLUSIONS OF LAW 1. Hepatitis C was not incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 2. A skin disability was not incurred in active service and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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); 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 representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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. VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the U. S. Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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 of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 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 the elements of the claim as reasonably contemplated by the application. Id. at 486. A letter dated in January 2004 discussed the evidence necessary to support claims for service connection. The Veteran was invited to submit or identify evidence. The evidence of record was listed and the Veteran was told how VA would assist him in obtaining additional relevant evidence. A July 2004 letter provided similar information, and also advised the Veteran that he could seek representation. In May 2010, the Veteran was advised of the manner in which VA determines disability ratings and effective dates. In February 2012 the Veteran was advised that VA had been unable to obtain his service treatment records. He was informed of the attempts that were made to obtain the records and asked to either send the records to VA if he had them or inform VA of the location of the records. He was informed to send evidence or information as soon as he could and if VA did not hear from him, a decision could be made after 10 days. See 38 C.F.R. § 3.159(e) (2012). The Veteran was also informed of alternate sources of evidence that could substitute for service treatment records. The Board finds that the content of the above notices fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim. Although the letter regarding secondary service connection was sent subsequent to the initial adjudication of the Veteran's claims, the Board finds that there was no prejudice as the claims were readjudicated in a July 2012 supplemental statement of the case (SSOC). See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a statement of the case or SSOC, is sufficient to cure a timing defect). As noted above, the Veteran also was afforded a hearing before a Veterans Law Judge (VLJ) during which he presented oral argument in support of his service connection claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ/DRO who chairs a hearing fulfill two duties to comply with the above the regulation. These duties 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. Here, the VLJ identified the issues on appeal during the hearing and testimony was taken concerning the element(s) of the claim that were lacking to substantiate the claims for benefits. Significantly, the Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim. 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). With respect VA's duty to assist, the Board notes that identified treatment records have been associated with the claims file. The Veteran was afforded a VA examination of his hepatitis C. The Board finds that the examination was adequate in that the examining physician reviewed the record, interviewed the Veteran, and performed an examination prior to providing his conclusions. The examination report of record is thorough and consistent with contemporaneous treatment records, and adequately responds to the questions posed in this appeal. The Board acknowledges that the Veteran has not been afforded a VA medical examination with respect to his claim for service connection for a skin disorder. However, the Board finds that a VA examination is not necessary in order to render a decision. There are two pivotal cases which address the need for a VA examination, Duenas v. Principi, 18 Vet. App. 512 (2004) and McLendon v. Nicholson, 20 Vet App. 79 (2006). In McLendon, the Court held that in disability compensation claims, the Secretary must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. Id. at 81. In Duenas, the Court held that a VA examination is necessary when the record: (1) contains competent evidence that the Veteran has persistent or recurrent symptoms of the claimed disability and (2) indicate that those symptoms may be associated with his active military service. The Board finds that there is no evidence of a current skin disability or persistent or recurring symptoms of a skin disorder that may be related to service, to include presumed herbicide exposure therein. The information of record includes VA medical records pertaining to the treatment of skin conditions, other than basal cell carcinoma which was adjudicated in a prior Board decision, but the records do not include information as to any potential relationship to service. Accordingly, a VA examination is not warranted. The Board notes that service treatment records for the Veteran's service are apparently not available. The U.S. Court of Appeals for Veterans Claims (Court) has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule where applicable. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The analysis below has been undertaken with VA's heightened duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). VA attempted to obtain VA treatment records dating from the 1980s to 1998. Records pertaining to a hospitalization in 1998 were obtained. To the extent that other records were not obtained, the Veteran was notified of this in the June 2012 supplemental statement of the case. Although separate notice pursuant to 38 C.F.R. § 3.159(e) was not provided, such is not prejudicial as the Veteran was notified the records were not obtained and as he has not notified VA that he has the records in his possession or access to the records. The Veteran has not otherwise identified any additional evidence or information which could be obtained to substantiate the claims. The Board is also unaware of any such outstanding evidence or information. Therefore, the Board is also satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations. For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. Factual Background As an initial matter, the Board observes that the claims file contains evidence that the Veteran served in Vietnam. As such, exposure to herbicides is presumed. In July 1998, the Veteran presented to a VA facility with complaints of left forearm pain that he thought might be from an insect bite. Cellulitis was assessed. The Veteran was hospitalized for one week, and discharged home on oral antibiotics in August 1998. An October 2000 VA treatment record indicates that the Veteran had recently fully detoxified from methadone, and had also had a week's hospitalization for cellulitis. In June 2001 the Veteran reported that his last intravenous drug use had been six months previously. VA treatment records reflect that hepatitis C was diagnosed in 2002. In June 2002 the Veteran reported to a VA facility with an infected wound. In September 2002 the Veteran was seen at a VA emergency room for swelling of the right hand. He reported that he had noticed an open cut on the dorsum of his had a week previously. The diagnosis was right hand cellulitis. In March 2003 the Veteran was seen for complaints of a bump on his left arm and swollen lymph glands in his left underarm. He also reported scratches on his right arm. He denied intravenous drug use or skin popping. The assessment was soft tissue inflammation at the left biceps insertion point and small superficial cellulitis on the right arm. In a January 2004 statement, the Veteran indicated that while in Vietnam, he killed someone with a hunting knife after being attacked. During his January 2010 hearing the Veteran testified that he started drinking in Vietnam, and that he also used opium. He indicated that after service, he was addicted to heroin. He stated that during service, he was given injections with an air gun, and that he started having problems following those injections. He indicated that he started to get infections, to include blood poisoning from a blister. He noted that even splinters developed into blood infections. The VLJ noted that the Veteran displayed forearms that were blotchy with light and dark patches. He indicated that he was exposed to blood in service when he and a buddy were attacked and he fought back with a pocket knife. On VA examination in January 2013, the Veteran reported that he had been given a diagnosis of hepatitis C in 2000. The examiner noted that the records indicated that the Veteran declined antiviral treatment. The Veteran indicated that he had undergone a blood transfusion as a child, when he had a "hemorrhage" as a complication of tonsillectomy. He admitted to previous use of intranasal cocaine, as well as alcohol consumption. He denied a history of intravenous drug use; however, the examiner noted that according to VA records, the Veteran had a history of heroin use, injected via skin popping for which he had required hospitalization due to related complications of cellulitis. The Veteran reported that while in Vietnam, he was involved in a fight during which he was exposed to his opponent's blood. The examiner opined that hepatitis C was less likely than not incurred in or caused by the claimed service injury, event, or illness. He stated that there was insufficient evidence to support a nexus between the Veteran's current hepatitis condition and service. He reasoned that the primary sources by which the hepatitis C virus was made occurred either prior to enlisting or post-service. He pointed to the Veteran's report of a blood transfusion as child, and noted that blood transfusions prior to 1992 were a known risk factor. He also noted that post-service, the Veteran used intranasal cocaine and injected heroin, and that these activities were also risk factors. He therefore concluded that the hepatitis condition was less likely than not related to service. In a March 2013 statement, the Veteran indicated that prior to receiving vaccinations in service, he was rarely sick, and that following the shots, he contracted numerous infections. He stated that he never used another person's needle. He alleged that vaccinations in service devastated his immune system. Analysis Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 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). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002). Hepatitis C Upon careful consideration of the foregoing evidence, the Board concludes that service connection is not warranted. While the evidence reveals that the Veteran has a diagnosis of hepatitis C, the most competent and probative evidence of record does not etiologically link this disease to service or any incident therein. In this regard, the Board observes that the Veteran reported his diagnosis with hepatitis C in 2000, and that the VA record indicates diagnosis in 2002. As such, the Board finds that the first medical evidence suggestive of HCV dates to many years following the Veteran's separation from service. The Board may, and will, consider in its assessment of a service connection claim the passage of a lengthy period of time wherein the Veteran has not complained of the malady at issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. Principi, 284 F.3d 1335, 1358 (Feb. Cir. 2002) (en banc). The VA examiner concluded that the Veteran's hepatitis C was not related to service. The examiner provided a reasoned opinion based on complete a review of the Veteran's history, interview, and examination. In assigning high probative value to this opinion, the Board notes that the examiner reviewed the record, obtained a history from the Veteran, and conducted a complete examination. There is no indication that the examiner was not fully aware of the Veteran's past medical history or that he misstated any relevant fact. The Board thus finds the examiner's opinion to be of greater probative value than the Veteran's unsupported assertions to the contrary. There is no competent evidence to the contrary. The Board also acknowledges the Veteran's own assertions that hepatitis C is related to service. As noted, the Veteran may attest to factual matters of which he has first-hand knowledge, such as subjective complaints, and his assertions in that regard are entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). He is competent to report exposure to Hepatitis C risk factors. He is not, however, competent to render an opinion as to the cause or etiology of current Hepatitis C because he does not have the requisite medical knowledge or training. See Rucker v. Brown, 10 Vet. App. 67, 71 (1997). As discussed, the VA examiner considered the Veteran's description of in-service events, but ultimately concluded that hepatitis C was not related to service. The Board finds the most probative evidence of record to be this opinion by the competent VA health care provider. Even if the Veteran's statements that Hepatitis C is due to risk factors in service were found to be competent, credible and probative they are still outweighed by the examiner's opinion. The opinion was provided by a medical professional who reviewed the history, interviewed the Veteran and provided an opinion supported by a rationale. In doing so, the examiner considered inconsistent statements provided by the Veteran concerning drug use. The Veteran informed the examiner he used intranasal cocaine but denied intravenous drug usage. However, as the examiner correctly noted, the VA medical records indicate heroin use that was injected. See VA treatment records dated in October 2000; see also VA treatment record dated in July 1998 (patient has history of intravenous drug abuse). Accordingly, the Veteran's statement to the examiner that he did not have intravenous drug use is not credible. The Board finds credible the treatment records associated with contemporaneous treatment for skin complications of intravenous drug use rather than statements made to the VA examiner many years later. In summary, no medical professional has attributed the Veteran's hepatitis C to service. In that regard, the Board places much more weight on the opinion of the competent VA health care provider who conducted physical examination and reviewed the results of various diagnostic tests conducted at that time and previously, than on the Veteran's lay assertions that his current hepatitis C is related to service. As reflected by the discussion above, the preponderance of the evidence is against the Veteran's claim for service connection. As such, the benefit-of-the-doubt rule does not apply. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Skin Disability 38 U.S.C.A. § 1116(a) (West 2002) provides presumptive service connection on the basis of herbicide exposure for specified diseases manifested to a degree of 10 percent within a specified period in a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. In this case the service personnel records indicate Vietnam service. Whenever the Secretary determines, on the basis of sound medical and scientific evidence, that a positive association exists between (A) the exposure of humans to an herbicide agent, and (B) the occurrence of a disease in humans, the Secretary shall prescribe regulations providing that a presumption of service connection is warranted for that disease for the purposes of this section. 38 U.S.C.A. § 1116(b)(1). In making determinations for the purpose of this subsection, the Secretary shall take into account (A) reports received by the Secretary from the National Academy of Sciences (NAS) under section 3 of the Agent Orange Act of 1991 [note to this section], and (B) all other sound medical and scientific information and analyses available to the Secretary. In evaluating any study for the purpose of making such determinations, the Secretary shall take into consideration whether the results are statistically significant, are capable of replication, and withstand peer review. 38 U.S.C.A. § 1116(b)(2). An association between the occurrence of a disease in humans and exposure to an herbicide agent shall be considered to be positive for the purposes of this section if the credible evidence for the association is equal to or outweighs the credible evidence against the association. 38 U.S.C.A. § 1116(b)(3). If a Veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service connected if the requirements of 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d) are also satisfied: AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes mellitus, Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). Notwithstanding the provisions of §§ 3.307, 3.309, if a claim fails to satisfy the criteria for service connection on a presumptive basis due to herbicide exposure, this fact does not preclude an appellant from establishing service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Having carefully reviewed the record, the Board concludes that service connection is not warranted for a skin disability. Regarding service connection on a presumptive basis due to herbicide exposure, the Board observes that there is no diagnosis of any skin disability that is specified in the regulation. Moreover, regarding service connection based on direct causation, the Board notes that there is a lack of evidence of pathology or treatment in proximity to service or within years of separation. While the Veteran has pointed to exposure to herbicides in service and asserts that it is related to his current skin complaints, the records do not demonstrate that there is a skin disability that is related to such exposure. Rather, although cellulitis has been intermittently diagnosed and treated, this appears to be related to a variety of causes, including an insect bite, scratching, and the Veteran's use of intravenous drugs. The Board has considered the Veteran's own assertions that he has a skin disability that is related to service. As noted, the Veteran may attest to factual matters of which he has first-hand knowledge, such as subjective complaints, and his assertions in that regard are entitled to some probative weight. See Washington. As noted, cellulitis has been intermittently diagnosed and treated, at one point with hospitalization; however, the record does not support a finding that these isolated diagnoses are related to service, to include any herbicide exposure therein. In addition, chondrodermatitis, left axillary papules, and an epidermoid cyst were treated in 2002, and cysts, comedones and a lesion were noted in the medical records thereafter. The Veteran is also prescribed medication for cellulitis/dermatitis. In sum, the evidence indicates there has been treatment for skin conditions, however, the evidence does not indicate that any of these conditions are related to herbicide exposure, or to an injury or disease in military service, many years earlier. The Veteran, as a lay person, is not competent to diagnose these skin disorders and relate the etiology thereof to herbicide exposure. Moreover, as he does not have a chronic disease as set forth in 38 C.F.R. § 3.309(a) (2012), continuity of symptomatology is not for consideration. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In summary, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a skin disability. As such, the benefit-of-the-doubt rule does not apply. See 38 U.S.C.A. § 5107(b); Gilbert. To the extent that the Veteran has reported that he engaged in combat, it is noted that a claimant must still provide evidence of a relationship between an injury in service and a current disability. Dalton v. Nicholson, 21 Vet. App. 23 (2007). That has not occurred in this case with respect to either claim. ORDER Entitlement to service connection for hepatitis C is denied. Entitlement to service connection for a skin disability is denied. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs