Citation Nr: 1326770 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 09-13 896 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for hepatitis C, status post liver transplant, including as a result of herbicide exposure. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from August 1966 to June 1967. This case comes to the Board of Veterans' Appeals (Board) on appeal of an October 2008 rating decision of the Buffalo, New York, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran requested a hearing before a member of the Board, but in March 2013, the Veteran withdrew his request for the hearing. The case was remanded by the Board in June 2013 so that an attempt to obtain additional records could be made and a VA examination be conducted. This was accomplished and the case was returned for appellate consideration. FINDINGS OF FACT 1. No injury, disease, or chronic symptoms of a hepatitis C were manifested during service. 2. The Veteran did not continuously manifest symptoms of hepatitis C in the years after service 3. Cirrhosis or carcinoma of the liver were not manifested to a degree of ten percent within one year of service separation. 4. Hepatitis C is not shown to have been caused by any in-service event. CONCLUSION OF LAW Hepatitis C, status post liver transplant was neither incurred in nor aggravated by service, nor may cirrhosis of carcinoma of the liver be presumed to have been incurred therein, and is not caused or aggravated by a service connected disease or disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between a veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of the claim prior to the initial adjudication of the claim. July and November 2008 letters explained the evidence necessary to substantiate the claim, the evidence VA was responsible for providing, and the evidence the Veteran was responsible for providing. This letter also informed the Veteran of disability rating and effective date criteria. The Veteran has had ample opportunity to respond and supplement the record. With regard to the duty to assist, the Veteran's service treatment records (STRs) and pertinent post-service treatment records have been secured or certified as being unavailable. In this regard, it is noted that a June 2013 memorandum indicates that additional medical records that the Board requested be located could not be found. In addition, the Veteran was afforded a VA medical examination in June 2013, pursuant to remand by the Board. The Board finds that the opinion obtained is adequate. The opinion was provided by a qualified medical professional and were predicated on a full reading of all available records. The examiner also provided a detailed rationale for the opinion rendered. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Neither the Veteran nor the representative has challenged the adequacy of the examination obtained. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). Accordingly, the Board finds that VA's duty to assist, including with respect to obtaining a VA examination or opinion, has been met. 38 C.F.R. § 3.159(c)(4) (2012). Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as cirrhosis of the liver or malignant tumor, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In order to prevail on the issue of service connection, there must be medical evidence of current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1990). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1990); 38 C.F.R. § 3.303(a). The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence where appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). When all of the evidence is assembled, 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board is required to render a finding with respect to the competency and credibility of the lay evidence of record. See Coburn v. Nicholson, 19 Vet. App. 427, 433 (2006). Competent, credible lay evidence could be, in and of itself, sufficient to establish an elemental fact necessary to support a finding of service connection. Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007). As a fact finder, the Board is obligated to determine whether lay evidence is credible in and of itself. The Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence, but it may consider a lack of contemporaneous medical evidence as one factor in determining the credibility of lay evidence. Buchanan v. Nicholson, 451 F. 3d 1331, 1336-1337 (Fed. Cir. 2006). Credibility is a factual determination going to the probative value of the evidence, to be made after the evidence has been admitted or deemed competent. Cartwright v. Derwinski, 2 Vet. App. 24 (1991). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). A veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived, that is, experienced, were directly through the senses. 38 C.F.R. § 3.159 (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, 6 Vet. App. at 469-71 (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness, but lay testimony is not competent to prove a particular injury or illness); see Barr 21 Vet. App. at 303 (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F. 3d at 1377. Also, a veteran as a layperson is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F. 3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau). VA must consider the competency of the lay evidence and cannot outright reject such evidence on the basis that such evidence can never establish a medical diagnosis or nexus; however, this does not mean that lay evidence is necessarily always sufficient to identify a medical diagnosis, but rather only that it is sufficient in those cases where the layman is competent and does not otherwise require specialized medical training and expertise to do so, i.e., the Board must determine whether the claimed disability is a type of disability for which a layperson is competent to provide etiology or nexus evidence. See Davidson, 581 F. 3d at 1316 (recognizing that, under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition; the person is reporting a contemporaneous medical diagnosis; or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). The statutory provision specifically covering Agent Orange is 38 U.S.C.A. § 1116. Under 38 U.S.C.A. § 1116(f), a claimant, who, during active service, served in the Republic of Vietnam during the Vietnam era, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that he was not exposed to any such agent during that service. Disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309, will be considered to have been incurred in service under the circumstances outlined in that section even though there is no evidence of such disease during the period of service. If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: Chloracne or other acneform disease consistent with chloracne; Hodgkin's disease; type 2 diabetes, non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; multiple myeloma, respiratory cancers (cancers of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma, ischemic heart disease, "all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia)," and Parkinson's disease. 38 C.F.R. § 3.309(e) (2012). Aside from these presumptive provisions, service connection might be established by satisfactory proof of direct service connection. See Combee v. Brown, 34 F.3rd 1039 (Fed. Cir. 1994). In accordance with VA regulations, the National Academy of Science (NAS) issued "Veterans and Agent Orange: Update 2008" (Update 2008). The attached notice explains a determination made by the Secretary, based upon Update 2008 and prior NAS reports, that a presumption of service connection based on exposure to herbicides in the Republic of Vietnam is not warranted for the following health outcomes: Hypertension; Cancers of the oral cavity (including lips and tongue), pharynx (including tonsils), or nasal cavity (including ears and sinuses); Cancers of the pleura, mediastinum, and other unspecified sites within the respiratory system and intrathoracic organs; Esophageal cancer; Stomach cancer; Colorectal cancer (including small intestine and anus); Hepatobiliary cancers (liver, gallbladder and bile ducts); Pancreatic cancer; Bone and joint cancer; Melanoma; Non-melanoma skin cancer (basal cell and squamous cell); Breast cancer; Cancers of reproductive organs (cervix, uterus, ovary, testes, and penis; excluding prostate); Urinary bladder cancer; Renal cancer (kidney and renal pelvis); Cancers of brain and nervous system (including eye); Endocrine cancers (thyroid, thymus, and other endocrine organs); Leukemia (other than all chronic B-cell leukemias including chronic lymphocytic leukemia and hairy cell leukemia); Cancers at other and unspecified sites; Neurobehavioral disorders (cognitive and neuropsychiatric); Movement disorders (including amyotrophic lateral sclerosis, but excluding Parkinson's disease); Chronic peripheral nervous system disorders; Respiratory disorders (wheeze or asthma, chronic obstructive pulmonary disorder, and farmer's lung); Gastrointestinal, metabolic, and digestive disorders (changes in liver enzymes, lipid abnormalities, and ulcers); Immune system disorders (immune suppression, allergy, and autoimmunity); Circulatory disorders (other than ischemic heart disease); Endometriosis; Effects on thyroid homeostasis; and Certain reproductive effects, i.e., infertility, spontaneous abortion, neonatal or infant death and stillbirth in offspring of exposed people, low birth weight in offspring of exposed people, birth defects (other than spina bifida) in offspring of exposed people, childhood cancer (including acute myelogenous leukemia) in offspring of exposed people. See Notice, 75 Fed. Reg. 247 81,332-35 (Dec. 27, 2010) Hepatitis C The Veteran contends that service connection is warranted for hepatitis C. It is asserted that this disease is the result of exposure to defoliants while service in the Republic of Vietnam (RVN). In addition, the Veteran identified numerous risk activities in which he took part during service that could have caused him to contract hepatitis C, including inoculations with air gun injectors, exposure to blood from dead and wounded fellow servicemen during combat, unprotected sex, and undergoing several days of tranquilizer treatment while on active duty. It is pointed out that the Veteran's private physician has indicated that the Veteran probably contracted the disease during the 1960's. After review of the record, the Board finds that no injury, disease, or chronic symptoms of a hepatitis C were manifested during service. The Board has reviewed the Veteran's STRs and finds no complaint or manifestations of hepatitis while he was on active duty. During a Medical Board proceeding in May 1967, physical examination was stated to be entirely negative. The Board finds that the Veteran did not continuously manifest symptoms of hepatitis C in the years after service. The Veteran has not contended that he had symptoms of hepatitis C in the years immediately following service and treatment records from the Veteran's private physicians and VA show that hepatitis C was first manifested in 1989, with microscopic piecemeal necrosis per liver biopsy in 1991. The Veteran underwent a liver transplant in February 2008. Records show that the Veteran was diagnosed as having cirrhosis of the liver secondary to hepatitis C and hepatocellular carcinoma. As such, the Board finds that the cirrhosis and carcinoma of the liver were not manifested within one year of separation from service and are shown in the record as being a result of hepatitis C. The Board finds that hepatitis C is not shown to have been caused by any in-service event. The Veteran's main contention is that the hepatitis C is the result of exposure to defoliants and other risk activities during service. As noted above, the NAS has, to date, found no relationship between defoliant exposure and liver diseases such as hepatitis C. In a June 2010 statement, the Veteran's private physician indicated that the Veteran had been a patient since 1990 when he was referred because of abnormal liver function testing. Subsequent evaluation indicated that the Veteran had chronic hepatitis C that was probably contracted in the 1960s. On June 2013 VA examination, the Veteran was diagnosed with hepatitis C in 1989. The history given was that the Veteran had developed symptoms of abdominal cramping in 1989 and was diagnosed with hepatitis C in 1990. In 2006, his condition worsened and the Veteran underwent a liver transplant in February 2008. The transplant records showed end stage liver disease, hepatitis C, with hepatocellular carcinoma. The examiner rendered an opinion that this was less likely than not incurred in or caused by the in-service injury, event or illnesses claimed by the Veteran. The rationale was that there was no evidence of hepatitis C during the Veteran's time during service and there was no evidence that any in-service event caused the Veteran's hepatitis C. It was noted that there is no evidence that herbicide exposure causes hepatitis C, which is related to a viral infection and not to chemical exposure. Regarding the comments by the Veteran's private physician, the examiner considered this speculation and indicated that, while this could be possible, the Veteran was not in the military for the entire decade of the 1960's and there is known to be a wide range of variation in the progression after acute hepatitis C infection from chronic hepatitis C infection to cirrhosis. According the medical literature, approximately 20 to 30 percent of chronically infected individuals develop cirrhosis over a 20 to 30 year period of time. The examiner stated that this was not a limited time frame and was only applicable to 20 to 30 percent of chronically infected patients. As such, there was considerable variation within the time periods it was pure speculation to suggest that that the Veteran's hepatitis C was first incurred during the Veteran's military service in 1966 and 1967. Given the Veteran's limited time of military service and the lack of an in-service event known to cause infection with hepatitis C, it is more likely than not that the Veteran's hepatitis C was contracted outside of his military service. The examiner concluded the opinion by listing numerous literature sources that supported the opinion that the hepatitis C, first manifested in 1989 was less likely than not developed as a result of service from 1966 to 1967. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993). When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Sklar v. Brown, 5 Vet. App. 140, 146 (1993); Guerrieri, 4 Vet. App. at 470-71. In this case, the only medical opinion that directly addresses whether the Veteran's hepatitis C developed as a result of service is that no probable relationship exists. While the Veteran's private physician indicated that the disease could have developed during the 1960s it was not indicated in the statement that the disease originated during service. Under these circumstances, the Board finds that the preponderance of the evidence does not establish service connection. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for hepatitis C, including as a result of defoliant exposure, is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs