Citation Nr: 1320382 Decision Date: 06/25/13 Archive Date: 07/05/13 DOCKET NO. 09-48 086 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. B. Mays, Counsel INTRODUCTION The Veteran had active service from March 1968 to December 1969, which included service in the Republic of Vietnam. His awards and decorations include the Combat Infantryman's Badge (CIB). This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the VA Regional Office (RO) in Hartford, Connecticut, which denied service connection for hepatitis C; granted service connection for posttraumatic stress disorder (PTSD), assigning a 70 percent rating, effective June 4, 2007; and granted entitlement to a total rating based on individual unemployability, effective June 4, 2007. In May 2008, the Veteran expressed disagreement with the rating assigned for his PTSD. However, because he later withdrew his notice of disagreement, the Board is not obligated to remand that issue for the issuance of a statement of the case. See Manlincon v. West, 12 Vet. App. 238 (1999). FINDING OF FACT With resolution of any doubt in favor of the Veteran, hepatitis C was incurred during active military service. CONCLUSION OF LAW The criteria for service connection for hepatitis C are approximated. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board will discuss the relevant law 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 Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (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); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (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). VA's Duties to Notify and Assist As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist a claimant 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, 3.326(a) (2012). Review of the claims folder reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Regardless, there is no need to discuss in detail whether there has been compliance with the notice and duty to assist provisions of the VCAA because, in light of the allowance of the hepatitis C claim, any error is harmless. See 38 C.F.R. § 20.1102; Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). Service Connection Claim Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). Service connection may be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in active service. 38 C.F.R. § 3.303(d) (2012). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247, 252 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Additionally, claims for certain chronic diseases - namely those listed in 38 C.F.R. § 3.309(a) - benefit from a somewhat more relaxed evidentiary standard under 38 C.F.R. § 3.303(b). A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court), clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). In its determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (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. Davidson v. Shinseki, 581 F.3d 1313, 1316 Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board must 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). In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit , citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). 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's primary contention is that he contracted hepatitis C from exposure to blood and other body fluids during combat service in Vietnam. The Veteran was diagnosed with hepatitis C in 1999; a liver biopsy showed findings consistent with a history of chronic viral hepatitis C, with no evidence of cirrhosis. A subsequent liver biopsy done in November 2004 revealed evidence of chronic hepatitis C. Subsequent diagnoses of hepatitis C are also shown in the record. The determinative issue is whether his hepatitis C began in service or is otherwise related to service, or a service-connected disability. In the case of a Veteran who engaged in combat with the enemy during a period of war, lay evidence of in-service incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation. 38 U.S.C.A. § 1154(b); Libertine v. Brown, 9 Vet. App. 521, 524 (1996); Collette v. Brown, 82 F.3d 389, 392-94 (Fed. Cir. 1996). 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. VBA Fast Letter (98-110) November 30, 1998. A Veteran may have been exposed to hepatitis C during the course of his or her duties as a military corpsman, a medical worker, or as a consequence of being a combat Veteran. VBA Fast Letter 04-13 June 29, 2004. Furthermore, there was no test to available to detect the presence of HCV until 1989. See VBA Fast Letter 98-110; see also http://consensus.nih.gov/1997/1997HepatitisC105html.htm. The Veteran's service treatment records do not show any hepatitis treatment, complaints, and/or diagnoses, nor do they document any hepatitis C risk factors. The Veteran's service personnel records confirm that he served in Vietnam. Though his military occupational specialty as a radio operator does not typically establish that he had combat duties, his award of the CIB establishes combat participation. His undocumented combat-related events (exposure to blood and body fluids) during combat duty are presumed credible. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). The Veteran's report of being exposed to blood and body fluids in service is also competent evidence, as such exposure would be readily observable. See Layno v. Brown, 6 Vet. App. 465 (1994). In support of his claim, the Veteran submitted a June 2007 statement from a private physician, Dr. A.C.W. This physician stated that the Veteran's hepatitis C was as likely as not contracted in the military service because the date of contact cannot be determined. This medical opinion is of some probative value but does not discuss the Veteran's possible risk factors for hepatitis C. In December 2007, the Veteran underwent a VA compensation examination, and the examiner felt that the Veteran's admission to IV drug use with needle-sharing after service made the etiology more likely after service. The examiner ultimately stated that based on epidemiologic studies, IV drug use and needle-sharing are stronger and more consistent predictors of hepatitis C than the Veteran's self-reported exposure to blood and body fluids. However, at the time of that VA examination, the examiner was unaware of the credibility of the Veteran's in-service incurrence of exposure to blood during combat service. Notably, the examiner stated that if the Veteran's report of exposure to wounded comrades and the other putative risk factors he described during the examination are considered as true, it would be difficult to clearly state that there were no service-related risk factors. In other words, the examiner was unable to exclude in-service risk factors. This VA medical opinion is factually accurate, fully articulated, and based on sound reasoning, and therefore is probative evidence in favor of the claim. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Similarly, in a December 2007 medical statement, Dr. R.I.L, stated that the Veteran's risk of exposure to blood and other body fluids during combat service is a possible risk factor for contracting hepatitis C. Dr. R.I.L. indicated that 40 to 45 percent of patients have no obvious risk factors, and noted that any possibility of transfer by blood and body fluid is taken as a possible risk factor. This statement is also probative medical evidence in support of the claim. As mentioned, the Veteran admits to engaging in post-service IV drug use, also a possible risk factor for hepatitis C. Nevertheless, it is just as likely that the Veteran's current hepatitis C is the result of or related to exposure to blood during combat service. In light of the evidence of a current disability, the credible lay evidence of an in-service, significant risk factor for hepatitis C, and the probative medical opinions of record, the evidence is at least in relative equipoise as to whether the Veteran's hepatitis C was incurred in active service. 38 U.S.C.A. § 1154(b). Thus, with resolution of any doubt in the Veteran's favor, his hepatitis C is related to service. Because the claim is being granted on a direct basis, it is unnecessary to analyze whether the Veteran's alternative theory that his hepatitis C is secondary to his service-connected PTSD. (See November 2009 substantive appeal, and December 2009 written argument). ORDER Service connection for hepatitis C is granted. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs