Citation Nr: 1320251 Decision Date: 06/24/13 Archive Date: 07/02/13 DOCKET NO. 09-37 890 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for hepatitis C. 2. Entitlement to service connection for a stomach disability, to include as secondary to hepatitis C. 3. Entitlement to service connection for headaches, to include as secondary to hepatitis C. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Kristi L. Gunn, Counsel INTRODUCTION The Veteran had active service from November 1970 to September 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The Board presently denies the claim of service connection for hepatitis C, and the secondary claim of service connection for a stomach disorder. However, evidence is of record warranting development of the issue of entitlement to service connection for headaches on a direct basis (i.e., not as claimed as secondary to hepatitis C). The headache claim is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The competent and probative evidence of record does not show that the Veteran's hepatitis C is related to service. 2. Competent and probative evidence of a currently diagnosed stomach disability is not of record. CONCLUSIONS OF LAW 1. Hepatitis C was not incurred in service or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303 (2012). 2. A stomach disability, to include as secondary to hepatitis C, was not incurred in or aggravated by active service, nor is it secondary to a service-connected disability. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Introductory Matters In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the United States Court of Appeals for the Federal Circuit (Federal Circuit) (as noted by citations to "Fed. Cir.") and the United States Court of Appeals for Veterans Claims (Court) (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). II. Duties to Notify and Assist The Veterans Claims Assistance Act (VCAA) and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate the claim, including apprising him of his and VA's respective responsibilities in obtaining this supporting evidence. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA to assist a claimant in obtaining this evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). A letter satisfying the notice requirements of 38 C.F.R. § 3.159(b)(1) was sent to the Veteran in November 2008, prior to initial adjudication of the claim in March 2009. The letter informed him of the evidence required to substantiate the claims currently on appeal. The letter also provided notice regarding the disability evaluation and effective date elements of a service connection claims. VA also fulfilled its duty to assist the Veteran with this claim by obtaining all potentially relevant evidence, which is obtainable, and therefore appellate review may proceed without prejudicing him. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also Bernard v. Brown, 4 Vet. App. 384 (1993). The RO obtained the Veteran's service treatment records and VA outpatient treatment records. The Veteran was also afforded a VA examination in March 2009 and an additional VA medical opinion in August 2010. Although the March 2009 examiner stated that an etiology opinion for the Veteran's hepatitis C could not be made without resorting to speculation, the opinion is fully explained, and based on the facts of record. Jones v. Shinseki, 23, Vet. App. 382, 389-90 (2010); see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Furthermore, the RO obtained an additional VA medical opinion in August 2010. The Board finds the August 2010 medical opinion adequate because it is based on a thorough review of the claims file, and the VA physician provided a rationale for the opinion. Therefore, a remand for a new opinion or examination is not necessary. In sum, VA's duty to notify and assist under the VCAA has been satisfied. The Veteran has had ample opportunity to participate in the development of his claim. III. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may 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). In interpreting sections 1110 and 1131 of the statute and section 3.303(a) of the regulations, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that a three-part test must be satisfied in order to establish entitlement to service connection. Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement). Walker v. Shinseki, 708 F.3d 1331 (Fed.Cir. 2013)((citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004))). Claims for certain chronic diseases, namely those listed in 38 C.F.R. § 3.309(a), benefit from a somewhat more relaxed evidentiary standard. See § 3.303(b); Walker, supra, (holding that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases"). Specifically, when a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes"). 38 C.F.R. § 3.303(b). If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim. When the claim is for a disorder or disease not listed in section 3.309(a), then "the 'nexus' requirement of the three-element test" must be satisfied, and evidence of a continuity of symptomatology will not suffice to establish service connection. Walker, supra. (holding that the claimant's allegation of a continuity of hearing loss ever since active service was not sufficient to support the claim under subsection 3.303(b), as hearing loss was not among the chronic diseases listed in section 3.309(a)). The Federal Circuit has clarified that the "medical nexus" requirement of the three-element test is a higher evidentiary showing than the more relaxed continuity-of-symptomatology standard, and that the latter only applies to the specific chronic diseases listed in section 3.309(a) of the regulations. Id. at 13-14. A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a non-service-connected disability which is aggravated by a service connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b) (2012); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). A claim for secondary service connection requires medical evidence that connects the asserted secondary disorder to the service-connected disability. Velez v. West, 11 Vet. App. 148, 158 (1998). In order to establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means 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. Layno v. Brown, 6 Vet. App. 465 (1994). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when 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); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). 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). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Hepatitis C The Veteran contends that service connection is warranted for his hepatitis C. In an October 2008 personal statement, the Veteran asserts that he incurred hepatitis C as a result of air gun inoculations in service. He alleged in a December 2008 statement that while stationed at Walter Reed Army Hospital and working as a court stenographer, he was exposed to hepatitis C. VA has recognized risk factors for hepatitis C include intravenous (IV) drug use, blood transfusions before 1992, hemodialysis, intranasal cocaine, 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, shared toothbrushes or razor blades. See Veterans Benefits Administration (VBA) letter 211B (98-110), November 30, 1998. A VA "Fast Letter" issued in June 2004 (Veterans Benefits Administration (VBA) Fast Letter 04-13, June 29, 2004) identified "key points" that included the fact that hepatitis C is spread primarily by contact with blood and blood products, with the highest prevalence of hepatitis C infection among those with repeated, direct percutaneous (through the skin) exposure to blood (i.e., intravenous drug users, recipients of blood transfusions before screening of the blood supply began in 1992, and hemophiliacs treated with clotting factor before 1987). Another "key point" was the fact that hepatitis C can potentially be transmitted with the re-use of needles for tattoos, body piercing, and acupuncture. In addition, VBA Fast Letter 04-13 states: Population studies suggest hepatitis C can be sexually transmitted. However, the chance for sexual transmission of [hepatitis C] is well below comparable rates for HIV/AIDS or hepatitis B infection. . . . The hepatitis B virus is heartier and more readily transmitted than [hepatitis C]. While there is at least one case report of hepatitis B being transmitted by an air gun injection, thus far, there have been no case reports of hepatitis C being transmitted by an air gun transmission. The source of infection is unknown in about 10 percent of acute hepatitis C cases and in 30 percent of chronic hepatitis C cases. These infections may have come from blood-contaminated cuts or wounds, contaminated medical equipment or multi-dose vials of medications. The large majority of hepatitis C infections can be accounted for by known modes of transmission, primarily transfusion of blood products before 1992, and injection drug use. Despite the lack of any scientific evidence to document transmission of hepatitis C with air gun injectors, it is biologically plausible. . . . VBA Fast Letter 04-13 (June 29, 2004). Service treatment records are silent as to any complaints, diagnosis, or treatment for hepatitis C. At the separation examination in June 1973, there were no findings of hepatitis C or any chronic liver disorder; however, the Veteran admitted to having or previously having a drug or narcotic habit on his June 1973 report of medical history at separation. His June 1973 pre-separation physical examination is highly probative evidence. To the extent that it is his own account, it was generated with a view towards ascertaining the Veteran's then-state of physical fitness and are akin to statements of diagnosis or treatment. Rucker v. Brown, 10 Vet. App. 67 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); see also LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rationale that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). Post service treatment records reflect continuing complaints and treatment for hepatitis C. In December 2002, a VA hepatitis C risk assessment was performed. The Veteran admitted to being exposed to blood on or through the skin or mucous membranes, and that he injected street drugs or used intranasal cocaine. In May 2008, the Veteran was diagnosed with hepatitis C. In August 2008, the Veteran visited his local VA outpatient treatment facility with complaints regarding his hepatitis C. It was noted that his risk factors for hepatitis C were receiving a blood transfusion in 1960, being a Vietnam era veteran (otherwise unexplained), exposure to blood while working as a firefighter for approximately 18 years after service, and having multiple sexual partners. While the Veteran has claimed that he was exposed to hepatitis C as a result of air gun inoculations in service, the Veteran's account is not competent because he does not have the requisite medical expertise to designate an etiology for his disorder. Moreover, if he was competent to make such an assertion, he is not credible in his account. His accounts have been markedly inconsistent in describing his alleged hepatitis C risk factors. When he filed his original claim in October 2008, the Veteran only reported air gun inoculations as a possible risk factor for hepatitis C exposure. However, at a VA outpatient treatment visit in December 2002, he admitted to several risk factors for hepatitis C, which included being exposed to blood on or through the skin or mucous membranes, the use of street drugs, and the use of intranasal cocaine. At an August 2008 VA outpatient treatment visit, he admitted that his risk factors for hepatitis C were receiving a blood transfusion in 1960, being exposed to blood while working as a firefighter for approximately 18 years, and having multiple sexual partners. At both VA outpatient treatment visits in December 2002 and August 2008, the Veteran never reported the in-service air gun inoculations as a possible risk factor for hepatitis C. In an October 2009 personal statement, the Veteran explained that in regards to receiving a blood transfusion, while he admitted to receiving a transfusion, he really was not sure at that time of completing the questionnaire. He stated that he later spoke with his father, who confirmed that he did not receive a transfusion. In regards to the use of street drugs or intranasal cocaine, the Veteran explained in an April 2009 statement that he only admitted to smoking marijuana, but since there was no block for it on the 1973 report of medical history at separation, and it was an illegal substance, he still marked the "yes" box on the report of medical history. The Veteran further added that he has only smoked marijuana and stopped in the 1970s. However, in his substantive appeal dated September 2009, the Veteran instead admitted to intranasal cocaine use. With regards to his duties at Walter Reed Army Hospital, personnel records indicate that he was assigned as a stenographer (i.e., a non-medical position specialty) at Walter Reed Army Hospital from January 1973 to December 1973. In an April 2009 statement, the Veteran alleged that he was required to go into some of the wards, to include infectious wards, where the injured were kept to take depositions for the Medical Review Board. Without further elaboration as to how he, as an administrative specialist came to be assigned essential medical duties in probably the United States Army's largest medical installation, he alleged that he then was constantly moving bloody sheets, needles, clothing, and contaminated items just to make room to perform duties. The Veteran is wholly incredible in this respect. He is alleging that as part of an administrative staff of what could likely be called the most well-staffed medical facility of the U.S. Army, he was doing essentially medical orderly duties. The law recognizes that credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony. Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995). Here, both the Veteran's inconsistencies, and his clear motive to obtain compensation benefits undermine the probative value of his account. Although the Veteran seeks to offer etiology opinions rather than provide diagnoses, the question of whether the Veteran currently has hepatitis C due to his alleged exposure in service is too complex to be addressed by a layperson. This connection or etiology is not amenable to observation alone. Rather, such relationships are the subject of extensive research by scientific and medical professionals and the Veteran's opinion of the etiology of his current disability is not competent evidence. Furthermore, the Board finds that there is no medical evidence linking the Veteran's current hepatitis C to his military service. In March 2009, the Veteran was afforded a VA examination to determine the etiology of his hepatitis C. He reported in-service blood exposure, air gun injections, and exposure while performing stenographer duties on an infectious disease ward as possible risk factors for hepatitis C. After physical examination of the Veteran, the VA examiner diagnosed him with hepatitis C. Upon review of the claims file and results from physical examination testing, the VA examiner concluded that he was unable to resolve the issue of whether the Veteran's hepatitis C is attributable to service without resort to mere speculation. The VA examiner explained that while air gun injections are a risk factor, contraction of hepatitis C while doing stenographer work on a hospital ward is questionable and more importantly, the Veteran's reported history has revealed errors. In August 2010, the RO obtained an additional opinion regarding the Veteran's hepatitis C. Upon review of the claims file, the VA physician noted that the Veteran had previously indicated that he received a blood transfusion prior to 1992 and later explained in an October 2008 statement that he had not received a blood transfusion after discussing it with his father. Additionally, in the hepatitis C risk assessment form dated December 2002, that the Veteran denied receiving a blood transfusion before July 1992, but admitted to the question of whether he had injected street drugs or used intranasal cocaine. The VA physician indicated that the Veteran has since explained that he only smoked marijuana during military service and never did any other form of illegal drug. The VA physician also noted the VA medical statement dated April 2009, which notes the possibility of the Veteran's hepatitis C being linked to his work at Walter Reed and "very limited use" of intranasal cocaine. Based upon a review of the claims file, with particular attention to the above cited evidence, the VA physician concluded that the Veteran did not contract hepatitis C during his military service. The VA physician explained that the Veteran almost certainly had a blood transfusion at some point with a previous injury and also admitted to the use of intranasal cocaine. The VA physician concluded that both of these are far "more likely causes" of the Veteran's hepatitis C than either casual contact with potentially contaminated items, or vaccination gun exposure. In support of his claim, the Veteran submitted a VA medical statement from E.E., D.O. In the April 2009 statement, Dr. E.E. indicated that he reviewed the Veteran's VA medical records as of December 2002. He noted that the initial screening for hepatitis C indicated the use of illegal drugs and upon further evaluation, the Veteran's history includes a "very limited use of intranasal cocaine." Dr. E.E. opined that with the Veteran's past work with exposure to blood products at his previous duty station, it is "possible" that this could be the source of his infection. Medical opinions that are speculative, general, or inconclusive in nature do not provide a sufficient basis upon which to support a claim. Jones v. Shinseki, 23 Vet. App. 382, 389-90 (2010) (noting that the phrase, "without resort to mere speculation," must not become a mantra that short circuits the careful consideration to which each claimant's case is entitled and holding that, before the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence); see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); Goss v. Brown, 9 Vet. App. 109, 114 (1996); Obert v. Brown, 5 Vet. App. 30, 33 (1993); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). Although, the examiner provided a rationale for why he could not render an opinion without speculating, i.e., the Veteran's inconsistent statements regarding the risk factors for hepatitis C, it is not probative evidence either for or against the Veteran's claim. The Board also finds that the April 2009 VA medical opinion from Dr. E.E. is also of no probative value. As previously mentioned, Dr. E.E. concluded that with the Veteran's past history of work with exposure to blood products at his previous duty station at Walter Reed Army Medical Center, it is "possible" that this could be the source of his infection. Considered in its full context, the April 2009 opinion lacks probative value because it is a statement of mere possibility rather than an opinion of probability to any degree. See Warren v. Brown, 6 Vet. App. 4, 6 (1993) (stating that a physician's statement framed in terms such as "may," "could," or "possible" is not probative); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (a letter from a physician indicating that veteran's death "may or may not" have been averted if medical personnel could have effectively intubated the veteran was held to be speculative); Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992) (the Court found evidence favorable to the veteran's claim that does little more than suggest a possibility that his illnesses might have been caused by service radiation exposure is insufficient to establish service connection); Obert v. Brown, 5 Vet. App. 30, 33 (1993) (a physician's statement that the veteran may have been having some symptoms of multiple sclerosis for many years prior to the date of diagnosis also implied "may or may not" and was deemed speculative); Bloom v. West, 12 Vet. App. 185 (1999) (the Court held that a physician's opinion the veteran's time as a prisoner of war "could have" precipitated the initial development of a lung condition, by itself and unsupported and unexplained, was "purely speculative"); and Bostain v. West, 11 Vet. App. 124, 128 (1998) (the Court held that a physician's opinion that an unspecified preexisting service-related condition "may have" contributed to the veteran's death was too speculative to be new and material evidence). The Board finds the August 2010 VA medical opinion to be competent and probative medical evidence. The VA physician reviewed the Veteran's subjective history, clinical findings, and rendered an opinion with supportive rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board considers the August 2012 VA opinion adequate, and service connection for hepatitis C must be denied. Accordingly, the preponderance of the evidence is against the Veteran's claim. Consequently, the benefit-of-the-doubt rule does not apply, and service connection for anemia must be denied. See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. Stomach Disorder The Veteran contends that his stomach problems are caused or aggravated by his hepatitis C. Since the evidence does not show that he has a current stomach disability, other than hepatitis C, his claim will be denied. Service treatment records note complaints of stomach problems. In April 1971, the Veteran reported to sick call with complaints of nausea, feeling run down, stomach cramps, headaches, eyes hurting, sore throat, and back pain for approximately four days. He was assessed with pharyngitis. Several days later, the Veteran returned to sick call with complaints of diarrhea. He was assessed with viral enteritis. Upon discharge from service, clinical evaluation of the Veteran's abdomen and viscera were normal, and the Veteran denied having or had previously stomach, liver or intestinal trouble on his June 1973 report of medical history at separation. The Veteran's post service treatment records do not show any complaints of, a diagnosis of, or treatment for a stomach disability. In August 2010, a VA physician, based on a review of the Veteran's claims file concluded that the Veteran does not have a "specific, diagnosable, chronic stomach disorder," other than his hepatitis C. The Veteran is competent to state that he experiences stomach problems. Layno v. Brown, 6 Vet. App. 465 (1994). His reports of stomach problems are also considered credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). However, his assertions are less probative than the contemporaneous medical evidence of record, which shows no symptoms of a stomach disability, even in treatment records for a stomach disability. Because the Veteran does not have a current stomach disability, the first element of a service connection claim is not met. The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich, 104 F. 3d 1328; Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). Here, the preponderance of the evidence shows the Veteran does not currently have a stomach disability. The Board notes that the Veteran is also contending that his stomach problems are a direct result of his hepatitis C. As previously stated, to prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin, 11 Vet. App. at 512; Reiber, 7 Vet. App. at 16-17. However, as the Veteran does not have service connection for hepatitis C, service connection for stomach problems cannot be granted as secondary to hepatitis C as a matter of law. 38 C.F.R. § 3.310(a); Sabonis v. Brown, 6 Vet. App. 430 (1994). Accordingly, the preponderance of the evidence is against the Veteran's claim. Consequently, the benefit-of-the-doubt rule does not apply, and service connection for a stomach disorder, to include as secondary to hepatitis C must be denied. See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. ORDER Entitlement to service connection for hepatitis C is denied. Entitlement to service connection for a stomach disorder, to include as secondary to hepatitis C, is denied. REMAND The Veteran contends that his headaches are attributable to his hepatitis C. While hepatitis C is not service connected, the Board must consider entitlement to service connection on a direct basis. VA is bound to consider all pertinent theories of service connection, whether or not a theory is raised by the Veteran. See Schroeder v. West, 212 F.3d 1265 (Fed. Cir.2000) (holding that a claim for disability compensation should be broadly construed to encompass all possible theories of entitlement). The Veteran's service treatment records reveal several complaints relating to headaches. Upon entry into service, the Veteran indicated that he had frequent or severe headaches on his November 1970 report of medical history. He explained that he failed an examination into the Air National Guard for a brain concussion a year previously. Clinical evaluation of the Veteran's head was normal, as reflected on the November 1970 report of medical examination, and the examining physician noted that hospital records were reviewed, and there was no sequela from the concussion. In March 1971, the Veteran visited sick call with complaints of constant headaches. It was noted that the Veteran had a concussion approximately one year previously, after a football injury. He was initially assessed with post rubella and post concussion. Further testing that same day showed a diagnosis of probable tension headaches with some question as to a migraine type component. Upon separation from service, the Veteran reported having frequent or severe headaches on his June 1973 report of separation; however, clinical evaluation of the head was normal. See the June 1973 report of medical examination. After discharge from service, VA outpatient treatment records dated October 2008 reflect complaints of constant headaches after starting a particular medication to treat his depression. In August 2010, a VA physician reviewed the claims file and provided an opinion regarding the etiology of the claimed headaches. In reviewing the claims file, the VA physician noted multiple visits during service for headaches, which presumably begin with a concussion prior to entry into service. The VA physician opined that the Veteran's complaints of headaches are "readily explainable given his prior medical history." As the VA physician failed to provide an explanation as to the conclusion reached in the August 2010 VA medical opinion, the RO sought clarification of the opinion. According to a Compensation and Pension Exam Inquiry report dated September 2010, an addendum regarding the claim for headaches was requested, and provided in October 2010, according to the November 2010 supplemental statement of the case (SSOC). However, the October 2010 VA addendum has not been associated with the claims file or the Veteran's Virtual VA file. The October 2010 VA addendum is relevant to the issue for entitlement to service connection for headaches and an attempt to obtain this addendum opinion must be made. Finally, the Board notes that it appears that no attempt has been made to obtain the hospital records relating to the brain concussion prior to the Veteran's entry. As previously noted, the examining physician in November 1970, upon entry into service, indicated that those hospital records were reviewed. An attempt should be made to obtain those records. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he identify all VA and non-VA health care providers that have treated him for his claimed headaches that have not been previously obtained, which include the hospital records from his reported brain concussion prior to service. The aid of the Veteran in securing these records, to include providing necessary authorizations, should be enlisted, as needed. If any requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file, and the Veteran should be informed in writing. 2. Associate with the claims file the October 2010 VA addendum opinion for the Veteran's claim for service connection for headaches, to include as secondary to hepatitis C. Failure to provide the above stated evidence warrants automatic rescheduling of a new VA examination and medical opinion to determine the etiology of the Veteran's claimed headaches. 3. If the October 2010 VA addendum cannot be provided, schedule the Veteran for a new examination with an appropriate clinician. The purpose of the examination is to determine whether the Veteran's claimed headaches are related to service. The following considerations will govern the opinion: a. The claims folder and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. b. The examiner must independently review the record for pertinent evidence, but his or her attention is called to the following: i. The Veteran's November 1970 report of medical history noting frequent or severe headaches and reporting a brain concussion one year prior to entry. ii. The November 1970 report of medical examination noting that there was no sequela from the concussion. iii. The March 1971 sick call report indicating that the Veteran had a history of a concussion approximately one and a half years ago and has since endured constant headaches. The sick call report also reflects a diagnosis of probable tension headache with some question of migraine type component. iv. The June 1973 report of medical history at separation indicating that the Veteran has frequent or severe headaches. v. The October 2008 VA outpatient treatment note reflecting complaints of headaches after taking medication for his depression. vi. The August 2010 VA opinion stating that the Veteran's headaches are readily explainable given his prior medical history. c. The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the credibility of the history provided by the Veteran, the examiner must so state, with a complete rationale in support of such a finding. d. The examiner must provide an opinion as to whether the Veteran's headaches began during active service or existed prior to service and was aggravated by service. The examiner is advised that the evidentiary standard whether a condition existed prior to service is "clear and unmistakable," which is a formidable evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable." e. After reviewing the records, examining the Veteran, and identifying all appropriate symptoms and diagnoses, the examiner must provide medical findings or opinions responsive to each of the following questions: i. On the basis of the clinical record, can it be concluded as medically undebatable that the Veteran's headaches preexisted his entry into active military service? ii. If it is found as medically undebatable that the headaches did clearly preexist service, can it also be concluded as medically undebatable that it was not aggravated to a permanent degree in service beyond that which would be due to the natural progression of the disease? iii. If the headaches are not found to have so preexisted service, did it have its onset during active military service? f. The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established principles. g. If the examiner is unable to render the requested opinion(s) without resort to speculation, he or she must so state. However, a complete explanation for such a finding must be provided, such as whether there is inadequate factual information, whether the question falls within the limits of current medical knowledge or scientific development, whether the cause of the condition in question is truly unknowable, and/or whether the question is so outside the norm of practice that it is impossible for the examiner to use his or her medical expertise and training to render an opinion. 4. Once such development is completed, readjudicate the claim for entitlement to service connection for headaches, to include as secondary to hepatitis C. If the benefit remains denied, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC), and the case should be returned to the Board. The Appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs