Citation Nr: 1320474 Decision Date: 06/25/13 Archive Date: 07/05/13 DOCKET NO. 06-07 103 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active military duty from April 1983 to September 1992 and from February 2003 to October 2004. He also had intervening Reserve Component membership from 1993 to 2003. The appeal comes before the Board of Veterans' Appeals (Board) from a March 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In April 2010 the Veteran testified before the undersigned Acting Veterans Law Judge. The transcript of that hearing is associated with the claims file. The appealed claim was remanded by the Board in September 2010 and again in October 2012, in each instance for additional evidentiary development. The claim now returns to the Board for further review. FINDINGS OF FACT 1. The medical evidence of record establishes that the Veteran's hepatitis C clearly and unmistakably preexisted his first period of active service from April 1983 to September 1992. 2. The evidence shows that the Veteran was not provided with an examination on his entry onto his second period of active service from February 2003 to October 2004. 3. The medical evidence of record establishes that the Veteran's hepatitis C clearly and unmistakably did not worsen beyond its natural progression during any of his periods of military service. CONCLUSION OF LAW Hepatitis C was not aggravated by active service. 38 U.S.C.A. §§ 101, 106, 1110, 1111, 1112, 1153, 1132, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under 38 U.S.C.A. § 5102 VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. Second, under 38 U.S.C.A. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., existence of a current disability, the degree of disability, and the effective date of any disability benefits. The appellant must also be notified of what specific evidence he is to provide and what evidence VA will attempt to obtain. Third, VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. This includes obtaining all relevant evidence adequately identified in the record and, in some cases, affording VA examinations. 38 U.S.C.A. § 5103A. In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the United States Court of Appeals for Veterans Claims (Court) observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (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. See 38 U.S.C. § 5103(a). Initially, the Board finds that letters dated in November 2004 and March 2006 provided the Veteran with notice that fulfills the provisions of 38 U.S.C.A. § 5103(a) including notice of the laws and regulations governing disability ratings and effective dates as required by the Court in Dingess as well as in substantial compliance with the Board's September 2012 remand request. While the Veteran may not have been provided adequate 38 U.S.C.A. § 5103(a) notice prior to the adjudication of the claim in the March 2005 rating decision, the Board finds that providing him with adequate notice in the above letters followed by a readjudication of the claim in the January 2009 supplemental statement of the case, "cures" any timing problem associated with inadequate notice or the lack of notice prior to the initial adjudication. Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34. The Board also finds that even if VA had an obligation to provide the Veteran with additional 38 U.S.C.A. § 5103(a) notice and failed to do so this notice problem does not constitute prejudicial error in this case because the record reflects that a reasonable person could be expected to understand what was needed to substantiate the claim after reading the above letters as well as the rating decision, the statement of the case, the supplemental statements of the case, and the Board remands. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above 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, during the April 2010 Board hearing, the Veteran was assisted at the hearing by his accredited representative and the representative and the Acting VLJ asked questions to ascertain the extent of any in-service event or injury and whether his current disability is related to his service. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative that was not obtained while the appeal was in Remand status. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for service connection. Therefore, the Board finds that, consistent with Bryant, the Acting VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). As to the duty to assist, the Board finds that VA has secured all available and identified pertinent in-service and post-service evidence including the Veteran's service treatment records and his post-service treatment records from Birmingham VA Medical Center in substantial compliance with the Board's remand instructions. See 38 U.S.C.A. § 5103A(b); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). The record shows that the Veteran was provided with VA examinations in November 2010 and February 2013. Moreover, the Board finds that the November 2010 VA examiner's opinion, when combined with the February 2013 opinion, is adequate to adjudicate the claim and substantially complies with the Board's remand instructions because after a review of the record on appeal, after taking a detailed medical history from the claimant, and/or after an examination, the examiners provided opinions as to the origins of his hepatitis C which opinion were based on citation to relevant evidence found in the claims file. See 38 U.S.C.A. § 5103A(d); Barr v. Nicholson, 21 Vet App 303 (2007); Stegall; D'Aries; Dyment. In summary, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A or 38 C.F.R. § 3.159. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the appeal. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). In adjudicating the claim below, the Board has reviewed all of the evidence in the Veteran's claims file including those found in Virtual VA. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the Veteran's claims folder shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Claim The Veteran contends, in effect, that he is entitled to service connection for hepatitis C on the basis of having contracted hepatitis C infection during one of his periods of service, or on the basis of his having had onset of hepatitis C as an active disease process during one of his periods of service, or on the basis of hepatitis C having been aggravated during service. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Additionally, service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing active duty for training (ACDUTRA) or from injury incurred or aggravated while performing inactive duty training (INACDUTRA). 38 U.S.C.A. §§ 101(24), 106, 1131. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309 such as arthritis. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including arthritis, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309. However, presumptive periods do not apply to ACDUTRA or INACDUTRA. See Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of INACDUTRA during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C.A. §§ 101(21) and (24); 38 C.F.R. §§ 3.6(a) and (d). ACDUTRA is, inter alia, full-time duty performed by member of the National Guard of any State. 38 C.F.R. § 3.6(c)(3). A Veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C.A. §§ 1111, 1132; 38 C.F.R. § 3.304(b). Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. § 1132; 38 C.F.R. § 3.304(b). In determining whether there is clear and unmistakable evidence to rebut the presumption of soundness, all evidence of record must be considered, including post service medical opinions. Harris v. West, 203 F.3d 1347 (Fed. Cir. 2000) and Adams v. West, 13 Vet. App. 453 (2000). In July 2003, the VA General Counsel issued a precedent opinion which held that, to rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-03 (July 16, 2003). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. Id. In its decisions, the Board is bound to follow the precedent opinions of the General Counsel. 38 U.S.C.A. § 7104(c). In deciding a claim based on aggravation, after having determined the presence of a preexisting condition, the Board must thereafter determine whether there has been any measured worsening of the disability during service and then whether this constitutes an increase in disability. See Browder v. Brown, 5 Vet. App. 268, 271 (1993); Hensley v. Brown, 5 Vet. App. 155, 163 (1993). In this regard, a preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 C.F.R. § 3.306(a). Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The presumption of aggravation is applicable only if the pre-service disability underwent an increase in severity during service. Hunt, 1 Vet. App. at 292, 296 (1991); See also Beverly v. Brown, 9 Vet. App. 402, 405 (1996). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306(b). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998). With the above criteria in mind, the Board will first address the presumption of soundness at service entrance. In this regard, the Veteran's March 1983 entry examination for his first period of military service from April 1983 to September 1992 is negative for complaints or a diagnosis of hepatitis. See 38 U.S.C.A. §§ 1111, 1132; 38 C.F.R. § 3.304(b). Therefore, the Board finds that for this first period of service the presumption of soundness applies and it may only be rebutted if the record contains clear and unmistakable evidence showing that his hepatitis C pre-existed this active duty service. See 38 U.S.C. § 1111; VAOPGCPREC 3-03. As to rebutting the presumption of soundness for the first period of military service from April 1983 to September 1992, the November 2010 VA examiner opined that there was clear and unmistakable evidence that the Veteran's hepatitis C at least pre-existed his second period of military service from February 2003 to October 2004 because he had a positive PNC antibody test for the presence of Hepatitis C in 1993, and that he had a PCR evaluation test of his viral load in 2000, which was the "gold standard" for a finding of active infection. Moreover, the February 2013 VA examiner thereafter opined that the Veteran's hepatitis C was acquired before his first period of military service from April 1983 to September 1993. The examiner reached this conclusion because the Veteran's past admissions of intravenous drug use prior to his first period of service with shared needle was the most likely means for the claimant having been infected, even while noting the appellant's report of also having engaged in high-risk sexual activity and shared razors while on active duty. In this regard, the examiner also discounted the likelihood of shared razors as a means of transmission since such a mechanism, while "theoretically possible," was unlikely because if a razor was shared it would be unlikely that it would be shared without any blood first being rinsed off the razor. The Board finds that the February 2013 examiners opinion is not directly contradicted by any other medical opinion of record. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). In this regard, while the November 2010 VA examiner's opinion that the Veteran's hepatitis C at least pre-existed his second period of military service, he did not provide an opinion as to whether it also pre-existed his first period of military service. Moreover, the February 2013 opinion is consistent with the evidence found in the other evidence found in the claims file. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion."). Accordingly, the Board finds that the record contains clear and unmistakable evidence showing that the Veteran's hepatitis C pre-existed his first period of military service from April 1983 to September 1993. See 38 U.S.C. § 1111; VAOPGCPREC 3-03. As to the Veteran's second period of active duty from February 2003 to October 2004, his service records do not contain an entry examination. The statute provides that the presumption applies when a Veteran has been "examined, accepted, and enrolled for service," and where that examination revealed no "defects, infirmities, or disorders." 38 U.S.C.A. § 1111. Thus, the statute requires that there be an examination prior to entry into the period of service on which the claim is based. See Smith v. Shinseki, 24 Vet. App. 40, 45 (2010) (citing Crowe v. Brown, 7 Vet. App. 238, 245 (1994)) (holding that the presumption of sound condition "attaches only where there has been an induction examination in which the later-complained-of disability was not detected"). In the absence of such an examination, there is no basis from which to determine whether the claimant was in sound condition upon entry into that period of service on which the claim is based. See Smith v. Shinseki, 24 Vet. App. at 45; see also Crowe v. Brown, 7 Vet. App. 238, 245 (1994). Therefore, the Board finds that the presumption of soundness does not apply for his second period of active duty. Given the above, the next question for the Board to consider is whether there has been any measured worsening of the disability during either period of service as well as whether this constitutes an increase in disability. See Browder, supra; Hensley, supra. As to the first period of active duty service from April 1983 to September 1992, service treatment records reflect that in May 1986 he complained of nausea, vomiting, and abdominal cramping; in September 1987 he reported nausea, dizziness, fatigue, and weakness; in December 1990 he reported fatigue, diarrhea, and body aches; in May 1991 he reported diarrhea and sharp abdominal pain; and in July 1992 he reported recurrent diarrhea and sharp pain in the right lower quadrant of his abdomen. The Board also notes that a medical article submitted by the Veteran in August 2012 informed that acute hepatitis C symptoms can include fatigue, fever, nausea, muscle and joint pains, and tenderness in the area of the liver. However, the February 2013 VA examiner opined that while service treatment records showed some short episodes of abdominal pain and nausea during acute episodes of gastroenteritis, they do not show any sustained symptoms of nausea or sclera icterus which are usual during active hepatitis. This medical opinion that there was not a measured worsening of the Veteran's hepatitis C that constitutes an increase in disability during his first period of active duty is not contradicted by any other medical evidence of record. See Colvin, supra. In fact, the Board finds that it is consistent with the Veteran's service treatment records. See Bloom, supra. As to the second period of active duty service from February 2003 to October 2004, while the November 2010 VA examiner failed to note the fact that service treatment records for the first period of active duty revealed symptoms which are consistent with acute hepatitis C, the Board finds this omission has no bearing on the credibility of his opinion as to there being no measured worsening of his hepatitis C during his second period of active duty. In support of this opinion as to the second period of active duty, the examiner accurately reported that service treatment records from this second period did not reflect "any events which are known to cause acute worsening of chronic hepatitis C infection, i.e., he had no extra superimposing viral infections, no Tylenol overdose" See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion."). The November 2010 examiner further supported this opinion by noting that the liver function tests before and after the second period of service were "comparable and show no acceleration of disease beyond usual progression." The examiner also noted that the second period of service documented a thorough work-up to treat infection including measures to prevent exacerbation of infection. Indeed, service treatment records include a December 2003 record of evaluations, testing, and treatment for conditions inclusive of hepatitis C. This medical opinion that there was not a measured worsening of the Veteran's hepatitis C that constitutes an increase in disability during his second period of active duty is not contradicted by any other medical evidence of record. See Colvin, supra. The Board also finds that it is consistent with the Veteran's medical records. See Bloom, supra. While the Veteran is competent to describe his subjective symptoms of his hepatitis C, ascertaining whether a permanent worsening of a preexisting disorder occurred during any period of service requires special medical training that the Veteran does not have and therefore it is a determination "medical in nature" and not capable of lay observation. See Davidson, supra. Accordingly, any lay opinions found in the record regarding the Veteran's military service causing a permanent worsening of his preexisted hepatitis C is not competent evidence, and is not accorded any probative value. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998); see also Bostain v. West, 11 Vet. App. 124, 127 (1998). Therefore, the Board finds clear and unmistakable evidence that the Veteran's hepatitis C did not increase in severity beyond its natural progression during any of his periods of active duty or ACDUTRA. Accordingly, the Board finds that hepatitis C was not aggravated by any of his periods of active duty or ACDUTRA and the appeal is denied. In reaching the above conclusion, the Board also considered the doctrine of reasonable doubt. 38 U.S.C.A. § 5107(b). However, as the most competent and credible evidence is against the claim, the doctrine is not for application. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for hepatitis C is denied. ____________________________________________ Neil. T. Werner Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs