Citation Nr: 1327595 Decision Date: 08/28/13 Archive Date: 09/05/13 DOCKET NO. 05-06 042 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for hepatitis and/or a liver disorder, to include as a result of exposure to herbicides and/or Agent Orange exposure REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran had active service from January 1970 to December 1972. He had service in Vietnam from August 1970 to August 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2003 and September 2007 rating determinations of the Department of Veterans Affairs (VA) Regional Office (RO) located in Seattle, Washington. In May 2008, the Veteran testified at a Board hearing sitting at the RO. A transcript of the hearing is of record. In June 2013, the Veteran was advised that the Veterans Law Judge who conducted that hearing was no longer employed by the Board and the Veteran was offered an opportunity to testify at another hearing. 38 C.F.R. § 20.717 (2012). He was advised that if he did not respond within 30 days from the date of the letter, the Board would assume that he did not want another hearing and would proceed with his appeal. No response was received. With regard to the issues of service connection for hepatitis and/or liver disease, the Board notes that this issue was previously before it in August 2008, at which time the Board found that new and material evidence had been received to reopen the previously denied claim. The Board, after reopening the claim, remanded the matter for additional development. In January 2010, the Board again remanded the Veteran's claim for additional development of the record. The case has been returned to the Board. The RO/AMC complied with the Board's remand instructions; records pertaining to the Veteran's claim for Social Security disability benefits were obtained and the Veteran was afforded an additional VA examination, and the report and relevant addendums have been associated with the Veteran's claims file. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Virtual VA claims file has been reviewed. FINDINGS OF FACT 1. The Veteran served in Vietnam and is presumed to have been exposed to Agent Orange. 2. The Veteran does not have a disease that is presumed to be service connected in veterans exposed to Agent Orange. 3. Hepatitis and/or a liver disorder was not manifest during service. 4. Hepatitis and/or a liver disorder is not attributable to service CONCLUSION OF LAW Hepatitis and/or a liver disorder was not incurred in or aggravated by service, and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the 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, including the degree of disability and the effective date of an award. Those five elements include: (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. In this case, the agency of original jurisdiction (AOJ) issued notice letters, dated in July 2003, November 2004, and October 2008, to the Veteran. These letters explained the evidence necessary to substantiate the Veteran's claim for service connection, as well as the legal criteria for entitlement to such benefits. The letters also informed him of his and VA's respective duties for obtaining evidence. The AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist a veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The claims file contains the Veteran's available service treatment records, reports of private and VA post-service treatment, records related to a claim for SSA disability payments, and the Veteran's own statements in support of his claim. The Veteran was afforded a VA examination responsive to the claim for service connection of a liver disorder, including hepatitis. McClendon v. Nicholson, 20 Vet. App. 79 (2006). The opinion was conducted by a medical professional, following thorough examination of the Veteran, solicitation of history, and review of the claims file. The Board finds that the opinions is adequate. Additionally, the Veteran has not alleged that any examination is inadequate to decide the current claim, so it is presumed to have been adequate. See 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 the opinion). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claim. For these reasons, the Board finds that the VCAA duties to notify and assist have been met. Legal Criteria for Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). VA laws and regulations provide that, if a Veteran was exposed to Agent Orange during service, certain listed diseases are presumptively service-connected. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.309(e). A Veteran who "served in the Republic of Vietnam" between January 9, 1962 and May 7, 1975 is presumed to have been exposed during such service to Agent Orange. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). The listed diseases are: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, Type II diabetes mellitus (adult-onset diabetes), Hodgkin's disease, ischemic heart disease, chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx or trachea); and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). In addition, the Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); Notice, 61 Fed. Reg. 41, 442-49 (1996); Notice, 72 Fed. Reg. 32,395-32,407 (Jun. 12, 2007); Notice, 74 Fed. Reg. 21,258-21,260 (May 7, 2009); Notice, 75 Fed. Reg. 32540 (June 8, 2010). As will be discussed below, the evidence does not reflect that the Veteran has been diagnosed as having any of the diseases presumed service connected in veterans exposed to Agent Orange. He is therefore not entitled to service connection on a presumptive basis due to his exposure to Agent Orange. The fact that a Veteran cannot establish entitlement to service connection on a presumptive basis does not preclude him from establishing entitlement on a direct incurrence or other basis. See 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.304(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (Radiation Compensation Act does not preclude a veteran from establishing service connection with proof of actual direct causation). 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. For a chronic disease for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As will be explained below, the Veteran does not have a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply to the claim for service connection. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Analysis for Service Connection The Veteran's service treatment records do not show that the Veteran had any treatment for a liver disorder, including hepatitis. The Veteran denied experiencing jaundice or hepatitis at separation; the contemporaneous separation examination showed his genitourinary system was normal. The Board is aware that there was no specific test for hepatitis C during the Veteran's period of service. Treatment records from J. A. L., M.D., dated in March 1976, indicate that the Veteran was diagnosed with chronic persistent benign hepatitis. A liver biopsy was negative for malignancy. The Veteran had abnormal laboratory results, but without evidence of weight loss or jaundice. He admitted to a history of illicit intravenous drug use and a family history of hepatitis; he denied a family history of liver disease. VA records from the Veteran's November 1980 Agent Orange registry evaluation shows that the Veteran reported a history of hepatitis 4 years earlier; according to the Veteran his hepatitis began a year and a half before the diagnosis. He reported symptoms of weight loss and low back pain, but denied jaundice. A June 2004 letter from D. R. K., M.D. states that the hepatitis infection "diagnosed in the military in 1974 as hepatitis B was most likely the current diagnosis of hepatitis C", for which the Veteran was receiving treatment. Dr. K indicated that the Veteran's hepatitis testing showed a positive antibody test for hepatitis C and negative hepatitis B antibody, suggesting that he never had hepatitis B. Dr. K noted that it was possible that the Veteran's 1974 gunshot wound and blood splatter was actually hepatitis C. Treatment records from Dr. K, dated 2003 through 2004, show that the Veteran was seen for follow up after abnormal liver function studies. The Veteran had a self-reported history of hepatitis B and a history of intranasal cocaine use during his Vietnam service. A liver biopsy showed inflammation and fibrosis, with risk of progression to cirrhosis. Laboratory testing showed that the Veteran was positive for the hepatitis C antibody; he was asymptomatic and treated with interferon therapy. A March 2004 treatment note indicates that the Veteran was immunized against hepatitis A. A March 2008 VA Agent Orange examination report indicates that the Veteran reported service in Vietnam, but denied handling or spraying Agent Orange; he reported that he was in areas that were recently sprayed and that his health has been poor since service. He related that he was told that he had hepatitis B in 1972, and did not know how it was transmitted. He denied IV drug use, cocaine use, tattoos, transfusions, and unprotected sex, but stated that he had received shots by air guns. He also reported that he was later diagnosed with hepatitis C, despite never having experienced jaundice. According to the Veteran, his gastroenterologist told him that whatever was diagnosed as hepatitis B was hepatitis C. His hepatitis C was treated with interferon. Upon examination, there was a small venous dilation typical of a liver condition. Liver function testing was normal; liver enzymes were also normal. Hepatitis C antibody is positive, hepatitis B is negative; his viral load is low, without signs of active hepatitis. The Veteran testified before the Board in May 2008. According to the Veteran, his hepatitis symptoms began in service. He also testified that his hepatitis was diagnosed in 1975. A July 2009 VA examination report shows that the Veteran reported a history of Agent Orange, a hepatitis B diagnosis in 1972, and hepatitis C. He denied a history of intravenous drug use, excessive tattoos, cocaine use, blood transfusions, and unprotected sex. He complained of fatigue, but stated that his hepatitis was under good control and that his liver biopsy did not show cirrhosis. Following an examination and laboratory testing, the VA examiner opined that the Veteran's liver disease is related to the hepatitis B and C. The VA examiner further indicated that it would speculative to attribute the Veteran's liver disease to the Veteran's military service, and that the mode of transmission is unclear, although "the liver disease occurred during that time, immediately in the latter years of his active service." A March 2010 addendum states that the Veteran currently has hepatitis C, but that he had a past history of hepatitis B, for which he does not test positive. The VA examiner also stated that the Veteran's medical records show that the Veteran's hepatitis had onset in 1976; a liver biopsy from March 1976 showed chronic persistent hepatitis. The VA examiner stated that it was at least as likely as not "50/50 probability" that the Veteran's current liver disease and/or hepatitis C was caused by or the result of hepatitis C, which was most likely related to service. A September 2010 addendum was also provided. The VA examiner noted that the Veteran's service treatment records do not show the onset of hepatitis, but that the Veteran reported that he was told he had hepatitis B in 1972 and that he did not know how he got it. The VA examiner noted that her opinion as to the Veteran's hepatitis, as provided in the March 2010 addendum, was based on the Veteran's history of hepatitis in 1972. The VA examiner noted that she did not see any history of hepatitis A, food borne infection, or intravenous drug use in the Veteran's history after 1972, so she provided an opinion that the Veteran's hepatitis was at least as likely as not related to service. The VA examiner again stated that her opinion that the Veteran's hepatitis and/or liver disease was related to service was speculative, and noted that the Veteran's claims file did not indicate a diagnosis of hepatitis or symptoms of hepatitis prior to 1976; she reiterated that the history of hepatitis prior to that date was only provided by the Veteran. The VA examiner stated that she was unable to resolve the issue of the etiology of the Veteran's hepatitis without resorting to speculation, which is based on the assumption that the Veteran's history, as self-reported, is correct. VBA training materials have indicated that there are particular risk factors for hepatitis C, including 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), occupational exposure to the hepatitis C virus in the health care setting through accidental needle sticks, during the course of duties as a military corpsman, a medical worker, or as a consequence of being a combat Veteran, transfusion of blood products before 1992, and injection drug use, 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, or through jet injectors. See VBA (Veterans Benefits Administration (VBA) Fast Letter 04-13, June 29, 2004; VBA All Station Letter 211B (98-110) November 30, 1998; VBA Training Letter 211A (01-02) April 17, 2001 VBA Fast Letter 04-13, June 29, 2004. The Board notes that, the Veteran served during a period of war. Likewise, the Veteran's DD Form 214 reflects that he had service in Vietnam from August 1970 to August 1971. However, the evidence does not suggest, and the Veteran does not contend, that he engaged in combat with the enemy; therefore, the combat provisions of 38 U.S.C.A. § 1154 (West 2002) are not applicable. The Board observes that the Veteran has claimed that his hepatitis C and/or liver disorder is due to service. Specifically, the Veteran asserts that this disorder is due to or aggravated by an inoculation via an air injection or by Agent Orange exposure that the Veteran experienced in service. The Veteran's claim is limited neither by the theory that he advances nor the precise disability he identifies. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) (in direct appeals, all filings must be read in a liberal manner); Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (what constitutes a claim cannot be limited by a lay Veteran's assertion of his or her condition in the application, but must be construed based on the reasonable expectations of the non-expert claimant and the evidence developed in processing the claim); EF v. Derwinski, 1 Vet. App. 324, 326 (1991) (Board must review all issues reasonably raised from a liberal reading of all documents in the record). In this case, the Veteran's claim must be denied because his hepatitis C is neither caused nor aggravated by an air injection inoculation or due to a disease or injury in service, including Agent Orange exposure. The Board reiterates that hepatitis is not a disease presumed service connected in veterans exposed to Agent Orange, and that the Veteran is therefore not entitled to service connection on a presumptive basis due to his exposure to Agent Orange. Regarding the Veteran's allegations of exposure via an air gun, the Veteran has not demonstrated that he is competent to establish such an etiology. Therefore, the unsupported assertion is of no probative value. Although the Veteran reported a history of stomach, liver, or intestinal trouble at separation, he specifically denied a history of jaundice or hepatitis. This contemporaneous denial of hepatitis is wildly inconsistent with the more recent report of in-service hepatitis. Furthermore, the clinical evaluation at separation disclosed that the Veteran's skin, abdomen, and viscera were normal. These findings are completely consistent with the March 1976 history noting a recent onset of abnormal findings and no known relevant medical problems. The Veteran is competent to report his experiences in service, but these statements must be weighed against the other evidence of record. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). The Board finds that the medical evidence of record, particularly those records related to his treatment in 1976 and 2003, are of greater probative weight than the more general lay assertions of the Veteran, even assuming those lay assertions as etiology were competent. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011) (noting impropriety of the Board categorically discounting lay testimony and requiring the Board to determine, on a case by case basis, whether a veteran's particular disability is the type of disability for which lay evidence is competent); see also Jandreau at 1377 ("sometimes 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"). Here, there is positive and negative evidence. The Board is presented with the lay pleadings, his reports to the VA examiner and his treating providers, and the opinions of the VA examiner and a private clinician. Since at least one examiner has attributed his hepatitis C to in-service events, the Veteran's opinion is competent. However, we find the positive medical evidence to be of little probative value. Even assuming that the Veteran had air injection inoculations and Agent Orange exposure, as alleged, the Board observes that the Veteran had multiple risk behaviors following service, including intravenous drug use and intranasal cocaine use, making it unlikely that the Veteran was exposed to hepatitis C during service. Additionally, the Veteran, in seeking treatment for hepatitis in 1976 and again in 2003 did not associate his hepatitis C with his service. To the contrary, he only reported the risk factors of intravenous drug use and intranasal cocaine use. Moreover, the Board notes that the Veteran did not seek treatment for hepatitis in 1972, and did not report a history of such treatment to his private physicians when seeking treatment in 1976 or 2003. The Veteran's after-the-fact report that he had a form of hepatitis in service is inconsistent with the more probative evidence and thus is not credible. The Board finds the post-service treatment records demonstrating a post-service history of high risk behaviors and statements made contemporaneous to separation and his initial treatment for hepatitis in 1976 indicating a lack of complaints related to hepatitis in service, have more probative weight than the later statements made during the course of a claim for compensation. See Madden v. Gober, 125 F.3d 1477, 1481 (1997) (in evaluating the evidence and rendering a decision on the merits, the Board is required to assess the credibility and probative value of proffered evidence in the context of the record as a whole). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Although there is a July 2009 VA examination and multiple addendums, stating that the Veteran's hepatitis and/or liver disorder is related to hepatitis C which is at least as likely as not related to service, the Board is not bound to accept medical opinions that are based on a history based upon an inaccurate factual background. Black v. Brown, 5 Vet. App. 177 (1993); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant that have been previously rejected). As discussed previously, the Veteran failed to report his history of intravenous drug use and intranasal cocaine use to the VA examiner, despite reporting such history when he initially sought treatment for his hepatitis symptoms. He also incorrectly reported that his hepatitis had its onset in 1972, not 1976 as shown in the medical evidence. Moreover, the Board notes that the Veteran has misrepresented the dates of his service as extending into 1974, and that he reported that he received a gunshot wound in service to Dr. K; the Veteran's service personnel and treatment records show no such injury and that his service ended in December 1972. Regardless, the VA examiner's opinon is of limited value as the opinion was based on the Veteran's incorrect report of a history of hepatitis since 1972, despite the VA examiner's review of the claims file. Likewise, the VA examiner noted that, in order to find the Veteran's hepatitis is related to service requires speculation, which does not provide the required degree of medical certainty. See Bloom v. West, 12 Vet. App. 185, 187 (1999). Therefore, the VA examiner's July 2009 opinion and subsequent addendums cannot be considered to be of sufficient probative value in support of service connection, as an opinion expressed in the term of possibility also implies that it may not be possible and it is too speculative to establish a nexus between the Veteran's disability and service. See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (the term "possibility" also implies that it "may not be possible" and it is too speculative to establish a nexus.). In sum, hepatitis C and/or a liver disorder was not manifest during service or within one year of separation. Rather, there was a remote post-service onset. The disability is not an Agent Orange presumptive disease and there is no credible evidence linking the hepatitis C and/or a liver disorder to herbicide exposure or a service-connected disease or injury to include an inoculation device. For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for hepatitis C and/or a liver disorder, claimed as secondary to Agent Orange exposure. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). ORDER Entitlement to service connection for hepatitis and/or a liver disorder is denied. ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs