Citation Nr: 1320486 Decision Date: 06/25/13 Archive Date: 07/05/13 DOCKET NO. 07-26 519 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The Veteran served on active duty from November 1966 to March 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal of a January 2007 rating action of the St. Petersburg, Florida, Regional Office (RO), which denied entitlement to service connection for hepatitis C. This case was previously before the Board in February 2011 at which time the Board found that new and material evidence had been presented with which to reopen the service connection claim for hepatitis C. The claim on the merits was remanded for additional development. In November 2011 and October 2012, the claim was remanded again for further development. At this point, there has been substantial compliance with the 2011 and 2012 remand directives, and the case has returned to the Board for appellate consideration. See also D'Aries v. Peake, 22 Vet. App. 97 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board's remand directives is required). A June 2013 review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT Hepatitis C was not shown during active duty service, or for many years after active duty service, and is unrelated to service, except for the possibility that it is related to the Veteran's use of IV drugs therein. CONCLUSION OF LAW Hepatitis C was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements) The RO informed the Veteran of VA's duty to assist him in the development of evidence pertinent to his service connection claim in letters dated in June and August 2006, and March 2008,, wherein the Veteran was advised of the provisions relating to the VCAA. The Veteran was advised that VA would assist him with obtaining relevant records from any Federal agency, which may include medical records from the military, from VA hospitals (including private facilities where VA authorized treatment), or from the Social Security Administration. With respect to private treatment records, the letter informed the Veteran that VA would make reasonable efforts to obtain private or non-Federal medical records, to include records from State or local governments, private doctors and hospitals, or current or former employers. Furthermore, the VA included copies of VA Form 21-4142, Authorization and Consent to Release Information, which the Veteran could complete to release private medical records to the VA. The Board further observes that the United States 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 Veteran was provided with notice of the type of evidence necessary to establish a disability rating or effective date as was discussed in the Dingess case in August 2006, prior to the adjudication of the claim in January 2007. Thereafter, the RO adjudicated the claim in a Statement of the Case (SOC) issued in July 2007, and in Supplemental SOCs issued in July 2012 and March 2013. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of fully compliant notification followed by readjudication of the claim, such as an Statement of the Case or Supplemental Statement of the Case, is sufficient to cure a timing defect). The Board also finds that all of the relevant facts have been properly developed, and that all available evidence necessary for an equitable resolution of the issues on appeal has been obtained. The Veteran's service treatment records (STRs) and post-service treatment records including private medical reports, VA records and records from the Social Security Administration, have been obtained and associated with the file. VA's duty to assist also includes obtaining an examination and medical opinion when necessary to make an adequate determination. See Duenas v. Principi, 18 Vet. App. 512 (2004). During the appeal period, VA examinations and/or opinions dated in February and December 2011 and May 2012 were associated with the file. The Veteran and his representative have not maintained that any of these examination/opinions are inadequate. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011), (in the absence of a challenge to the adequacy of the examination, the Board is not required to explicitly explain why each medical opinion is adequate. Accordingly, the Board finds that VA has complied, to the extent required, with the duty-to-assist requirements found at 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c)-(e). Factual Background The Veteran's DD 214 Form shows that he served in the United States Navy from November 1966 to March 1969 with an MOS of stock clerk. Service in Vietnam is indicated. The Veteran has no awards or decorations indicative of combat. Review of the service treatment records (STRs) does not reflect any complaints, treatment or a diagnosis of hepatitis C during service or any symptoms reasonably attributed thereto. The STRs do reflect that the Veteran's October 1966 enlistment examination noted that he had some sort of body marking, such as a scar or tattoos. The March 1969 separation examination report was also positive for some sort of body markings, described as scars on the right and left wrists; there was no mention of tattoos. A VA examination report dated in early June 1969 included a diagnosis of possible early hepatitis based on findings including elevated SGOT. A note on the report indicated that the Veteran was hospitalized at a VAMC in Miami, FL from mid-June 1969 to early July 1969 with a discharge diagnosis of infectious hepatitis. The hospitalization summary is on file and reveals that the Veteran had a 1-week history of anorexia, malaise, nausea, and myalgia. It was noted that for the past year he had been taking narcotics by injection both intravenously and subcutaneously. In October 1971, the Veteran was treated for multiple drug dependency (marijuana, speed and amphetamines); and drug addiction - heroin. The file contains a private medical opinion of Dr. C.B.O. dated in June 2002. It was noted that the Veteran had chronic hepatitis C, which had progressed to cirrhosis. The statement indicated that hepatitis C genotype was first diagnosed in 1999. The doctor commented that the Veteran had multiple tattoos which might have been the etiology of liver disease in the past. The file contains several lay statements acknowledging that the Veteran had been suffering from hepatitis C for years. A VA examination was conducted in February 2011 and the claims folder was reviewed. The report indicated that the Veteran was treated for intravenous drug use in 1971. It was noted that his hepatitis C was asymptomatic with no evidence of relapse. The Veteran acknowledged having risk factors including tattoos during service, high risk sexual practices, and post-service intravenous drug use. Hepatitis C was diagnosed. The examiner opined that hepatitis C was less likely than not caused by or the result of onset in service. The examiner explained that the Veteran's risk factors for the development of hepatitis may have begun during service with a tattoo which he claims to have gotten while in service, but with his post-service IV drug dependence, the cause was described as multi-factoral. The examiner was unable to isolate one specific cause. In a statement from the Veteran dated in November 2011, he indicated that during service he was treated for gonorrhea in 1967. He also reported that during boot camp in 1966, he went to the city and had 2 tattoos put on each arm. Another VA medical opinion was provided in December 2011. At that time a VA was provided to the effect that hepatitis C was less likely than not incurred in or cause by service. It was explained that the Veteran had numerous risk factor in and post-service for contracting hepatitis, including a tattoo he claimed to have received during service, high risk sexual practices in service and post-service IV drug dependence, and that accordingly, the transmission of hepatitis was unknown. A third VA medical opinion was provided for the file in May 2012, based on a review of the claims folder and the prior private and VA medical opinions. The VA medical practitioner concluded that she could not provide an opinion without resort to speculation. It was noted that all 3 of the Veteran's risk factors: tattoos, high risk sexual behavior, and IV drug use could lead to a diagnosis of Hepatitis C and put the Veteran at higher risk for developing it. It was observed that it was impossible to determine which factor actually led to the transmission and subsequent diagnosis of hepatitis C. A history of the Veteran's one year history of IV drug use (provided by him in conjunction with his June/July 1969 hospitalization) was noted and it was explained that the incubation period for hepatitis could be as short as 2 weeks and as long as 23 weeks. It was further noted that the diagnosis of hepatitis C in 1969 was not classified and observed that the Veteran was also serum positive for hepatitis B. It was opined that it was possible that exposure back in 1969 was hepatitis B and unrelated to the currently diagnosed hepatitis C. In late 2012, the Veteran's Social Security records were added to the file. The records reflect that the Veteran was found to be disabled from August 2001 due to diagnoses of lumbar strain and affective disorder. The Social Security records include an August 2001 psychological evaluation report which includes background information provided to the Veteran to the effect that he got hepatitis in the 1970's from using a needle to inject crystal meth. He also gave a past history of IV heroin use for about 10 years during the 1980's and of 5 felony arrests, all drug related. Analysis The Veteran maintains hepatitis C is of service origin, warranting the grant of service connection. Specifically, he claims that during service he got two tattoos which he believes were the source of his subsequently diagnosed hepatitis. Generally, in order to prevail on the issue of service connection, there must be (1) evidence of a current disability; (2) medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. See 38 U.S.C.A. § 1110 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. See 38 C.F.R. § 3.303(b) (2012). 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). The provisions of 38 U.S.C.A. § 1154(a) require that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). Specific to service connection claims for hepatitis C, the evidence must show that a veteran's hepatitis C infection, risk factor(s), or symptoms were incurred in or aggravated by service. 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 VBA letter 211B (98-110) November 30, 1998. With respect to claimed hepatitis C, Hickson element (1) evidence of the currently manifested disability, has been established. Specifically, medical records reflect that it was definitively diagnosed in 1999. The Board notes that some form of infectious hepatitis was diagnosed in 1969; however, this condition was never classified as to type. With respect to service incurrence, the Veteran's STRs are entirely negative for complaints, treatment, or a diagnosis related to hepatitis C or any symptoms reasonably attributed thereto. The Board acknowledges that reliable screening for hepatitis C was not recognized at the time of the Veteran's period of service and observes that accordingly, the lack of a diagnosis of hepatitis in service is not dispositive of the service connection issue. The Veteran has provided accounts of several possible service-related risk factors/etiologies relating to his hepatitis claim consisting of: high risk sexual activity; getting two tattoos during service, and intravenous drug use. Even if the Board were to accept the occurrence of the aforementioned events and risk factors in service as competent accounts, they must be weighed in terms of credibility and probative value in light of the overall evidence relating to the etiology of hepatitis C. In weighing the credibility, VA may consider interest, bias, inconsistent statements, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the Veteran. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). In this regard, the Board notes that two of the possible aforementioned etiologies of hepatitis do not have any actual objective or factual basis in the STRs or clinical records as relate to the Veteran's specific case. For example, no tattoos were reported on the Veteran's July 1972 separation examination, but were possibly shown on the October 1966 enlistment examination report. In addition, the Veteran has no way of knowing and does not specifically allege that any particular sex partner he had either actually had hepatitis, or that any needle used for tattoos was actually contaminated. Moreover, both of these risk factors were not initially reported by the Veteran until many years after service and essentially only after the Veteran filed his compensation claim for hepatitis. See Macarubbo v. Gober, 10 Vet. App. 388 (1997) (holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). Accordingly, the vague information provided by the Veteran regarding these risk factors is unsubstantiated and speculative, and as such lacks credibility. However, the one risk factor which was clearly present during service and thereafter is the Veteran's IV drug use. This factor was documented in the June/July 1969 VA hospitalization record, at which time the Veteran gave a 1-year history of IV drug use dating it to his period of service; and in a 2001 private psychological evaluation, at which time he gave a 10 year history of IV heroin use. Further, the Social Security records reflect that the Veteran reported that he contracted hepatitis C from using a needle to inject crystal meth in the 1970's. Accordingly, the one risk factor which is firmly established in this case is the Veteran's in and post-service IV drug use. Service connection may be granted when the evidence establishes a medical nexus between active duty service and current complaints. The requirement of an evidentiary showing of an etiological relationship has been repeatedly reaffirmed by the U.S. Court of Appeals for the Federal Circuit, which has held that a veteran seeking disability benefits must establish the existence of a disability and a connection between a veteran's service and the disability claimed. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Essentially, this is the third Hickson element. The file contains four medical opinions addressing the etiology of the Veteran's hepatitis C. The first consists of a private medical opinion of Dr. C.B.O. dated in June 2002 in which it was noted that the Veteran had chronic hepatitis C, which had progressed to cirrhosis and the doctor commented that the Veteran had multiple tattoos which might have been the etiology of liver disease in the past. In this regard, there was no mention of an in-service history of the Veteran receiving tattoos, nor did the doctor implicate any incident occurring during service as a potential etiology of the hepatitis. He merely generally identified the Veteran's tattoos (without regard to the time received) as a risk factor. There was no mention of the Veteran's IV drug use, another risk factor clearly present in this case, in that statement. As such, this opinion does not support the Veteran's claim of service-related hepatitis and is of little probative value as it does not address service history or etiology. Also on file are two VA medical opinions (February and December 2011) both to the effect that hepatitis C was less likely than not incurred in or caused by service. It was explained that the Veteran had numerous risk factors in and post-service for contracting hepatitis, and that accordingly, the transmission of hepatitis was unknown. Among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). While not definitive, these opinions are found to carry significant weight and are based as accurately as possible on evaluation of the lay and clinical information provided in the evidentiary record. In addition, the file contains no competent medical opinions to the contrary and the Veteran has not provided any competent medical evidence to diminish their significant probative weight. See Wray v. Brown, 7 Vet. App. 488, 492-93 (199 Finally, in 2012, a VA medical practitioner concluded that she could not provide an opinion without resort to speculation. It was noted that all 3 of the Veteran's risk factors: tattoos, high risk sexual behavior, and IV drug use could lead to a diagnosis of Hepatitis C and put the Veteran at higher risk for developing it. It was observed that it was impossible to determine which factor actually led to the transmission and subsequent diagnosis of hepatitis C. The Board is cognizant of the holding of Jones v. Shinseki, 23 Vet. App. 382 (2010), where the Court stated that while VA need not "proceed through multiple iterations of repetitive medical examinations until it obtains a conclusive opinion or formally declares that further examinations would be futile," it must be clear "that the examiner has not invoked the phrase 'without resort to mere speculation' as a substitute for the full consideration of all pertinent and available medical facts to which a claimant is entitled." In essence, the Court in Jones acknowledged, there are instances where a definitive opinion cannot be provided because required information is missing or can no longer be obtained or current medical knowledge yields multiple possible etiologies with none more likely than not the cause of the claimed disability. The Court in Jones held, however, that in order to rely upon a statement that an opinion cannot be provided without resort to mere speculation, it must be clear that the procurable and assembled data was fully considered and the basis for the opinion must be provided by the examiner or apparent upon a review of the record. With regard to the May 2012 opinion, as detailed above, the VA examiner reviewed the claims folder, summarized the relevant facts and history, and indicated that an opinion could not be provided as the etiology of the Veteran's hepatitis could simply not be determined in light of the multiple risk factors involved and the uncertain incubation period for the condition. Accordingly, in essence, the VA examiner concluded that an opinion could not be provided without resort to speculation. As such, the 2012 opinion of the VA examiner, while inconclusive is adequate. To be adequate, a medical opinion must do more than state a conclusion that etiology of a disability is unknown or unknowable; rather, the medical examiner must support his or her conclusion with sufficient rationale and explanation. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (holding that "the mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign the doctor's opinions"). That explanation was provided by the VA examiner in this case, as discussed above. However, the Board must observe as relates to the 2012 VA medical opinion that as a practical matter, medical evidence that is speculative, general, or inconclusive in nature, such as the 2012 VA opinion, cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). Assessing the lay and clinical evidence overall, the Board concludes that in and post-service IV drug use appears to be the most fully substantiated and pervasive risk factor of hepatitis pertinent to this case. In fact the Veteran has implicated it as the cause of his hepatitis. To the extent that in (and post) service IV drug use has been established and implicated as a likely etiology of the Veteran's hepatitis C, the Board observes that Section 8052 of the Omnibus Budget Reconciliation Act (OBRA) of 1990, Pub. L. No. 101- 508, § 8052, 104 Stat. 1388, 1388- 91, amended 38 U.S.C. § 105(a) to provide that, with respect to claims filed after October 31, 1990, an injury or disease incurred during active service will not be deemed to have been incurred in the line of duty if the injury or disease was a result of the person's own willful misconduct, including abuse of alcohol or drugs. See 38 U.S.C.A. § 105 (West 2002); 38 C.F.R. §§ 3.1(n), 3.301(d) (2012). Furthermore, VA's General Counsel has confirmed that direct service connection for a disability that results from a claimant's own abuse of alcohol or drugs is precluded for purposes of all VA benefits where, as here, the claim was filed after October 31, 1990 and the cause of the disease is linked to the Veteran's abuse of drugs. See VAOGCPREC 7-99; VAOGCPREC 2-98. Accordingly, to the extent that the Veteran used IV drugs in and since service, and this has been implicated as a likely etiology of subsequently diagnosed hepatitis C, service connection is precluded for hepatitis C under the aforementioned law, regulations and opinion. Essentially, as the weight of the evidence is against a finding that the Veteran's claimed hepatitis C is in any way related to service except for possibly by virtue of the use of illegal drugs therein, the preponderance of the evidence is against this service connection claim. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The benefit sought on appeal is therefore denied. ORDER Entitlement to service connection for hepatitis C is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs