Citation Nr: 1328709 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 07-31 322 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for Hepatitis C. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD William J. Jefferson III, Counsel INTRODUCTION The Veteran had active service from July 1976 to July 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) located in Indianapolis, Indiana. In August 2008, the Veteran testified at a hearing at the RO before a hearing officer there. During the hearing, the issues were identified and it was noted what pertinent evidence was outstanding and what evidence might assist in substantiating the claims. Additionally, the Veteran through his testimony, with the assistance of his representative, demonstrated actual knowledge of the elements necessary to substantiate the claims. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). A copy of the hearing transcript has been associated with the claims folder. In September 2011, the Board remanded the appealed claims of entitlement to service connection for a back condition, and hepatitis C to the RO via the Appeals Management Center (AMC) for additional development. In a June 2012 rating decision, the AMC granted service connection for a back condition, degenerative disc disease thoracolumbar spine, evaluated as 10 percent disabling effective from February 16, 2006. That issue is no longer on appeal before the Board. FINDING OF FACT The Veteran's Hepatitis C is not shown to be related to a disease, injury or event in service. CONCLUSION OF LAW The Veteran's Hepatitis C was not incurred in or aggravated by service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Assist VA has duties to notify and assist the Veteran in substantiating this claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Proper notice must inform the Veteran of the information and medical or lay evidence not of record: (1) that is necessary to substantiate this claim; (2) that VA will obtain and assist him in obtaining; and (3) that he is expected to provide. See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). These VCAA notice requirements apply to all five elements of this service-connection claim: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and this disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Further, this notice must include information that a "downstream" disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id., at 486. The Veteran was provided this required notice in a May 2006 letter that indicated the type of evidence and information needed to substantiate the claim and apprised him of his and VA's respective responsibilities in obtaining this supporting evidence. The RO sent the letter prior to initially adjudicating the claim in August 2006, therefore, in the preferred sequence since, ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). That May 2006 letter, also addressed the "downstream" Dingess elements. The Veteran's claim was then readjudicated in July 2007 statement of the case (SOC), and in May 2009 and June 2012 supplemental statement of the case's (SSOC's). The claim has been reconsidered since providing all required VCAA notice. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). As for the duty to assist, the RO obtained the Veteran's service treatment (STRs), and VA and private treatment records. The Board has also reviewed VA medical records in his electronic ("Virtual VA") file. He has not identified any other records that also need to be obtained. The duty to assist also may include providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. §§ 3.159(c)(4), 3.326(a) (2012). The Veteran has been provided a VA compensation examination in October 2011 to determine whether his Hepatitis C is attributable to his military service. McLendon v. Nicholson, 20 Vet. App. 79 (2006), 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). Accordingly, the Board finds that no further development of this claim is needed to meet the requirements of the VCAA or the codified statutes or implementing regulations. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. To establish entitlement to direct service connection, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of the claim; (2) competent and credible evidence of in-service occurrence or aggravation of a relevant disease or injury; and (3) competent and credible evidence of a nexus or link between the injury or disease in service and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). Service connection for chronic diseases may also be established by chronicity and continuity of symptomatology. See 38 C.F.R. § 3.303(b). Continuity of symptomatology may establish service connection if a claimant can demonstrate (1) that a condition was "noted" during service; (2) there is postservice evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The U.S. Court of Appeals for the Federal Circuit has recently held that for purposes of 3.303(b), where the veteran asserts entitlement to a chronic condition but there is insufficient evidence of a diagnosis in service, the veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), affirming Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011). [emphasis added]. For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by showing inservice incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). Hepatitis C The Veteran asserts that he has Hepatitis C that is due to air gun inoculations that he received during his military service. The Veteran's entire STR's are absent for any complaints, findings, or diagnoses referable to Hepatitis C or any liver disorder. There are no interim medical records pertaining to Hepatitis C. VA clinical records in April 2002 show communication with personnel at a university medical center indicating that the Veteran was in a Hepatitis C study, receiving Peg-ntron treatment. In May 2002 it was reported that the Veteran was in week 19 of (Hepatitis C) therapy. In August 2002, VA medical records report a diagnosis of Hepatitis C along with continued treatment for the disorder. Received in December 2007 were statements from former servicemen with military service from 1960 to 1980, indicating that they had received vaccinations via percutaneous injections during service. Submitted along with these statements was a photo of servicemen receiving injections with what appears to be an inoculation air gun. At an August 2008 personal hearing at the RO before a hearing officer, the Veteran testified that he had Hepatitis C that was incurred during basic training when he received inoculations with a gun, percutaneous injections. (Transcript (T) at 7. He stated that it was entirely possible that other soldiers who received the inoculations in front of him splattered their blood and transferred the blood to him. T. 7. The Veteran stated that he did not use intravenous drugs, high risk sexual activity, tattoos, body piercings. T. 8. He had never shared toothbrushes, razors, straight blades, or had had acupuncture. T. 8. He reported that he had a blood transfusion in 1984 during an operation on his right leg. T. 8. The Veteran testified that he had never been a healthcare worker exposed to contaminated bodily fluids r blood, and that he had never been in contact with anyone that had Hepatitis C. T.9. The Veteran stated that he was not diagnosed with Hepatitis C in service. T. 9. He testified that he was diagnosed with Hepatitis C in 2000. T. 9. The Veteran stated that he had received treatment at VA for hepatitis C since 2002. T. 10. The Veteran testified that he had received treatment for Hepatitis C and that he had been informed that the disease was undetectable. T. 9-10. In April 2009, the Veteran was provided with a VA examination relating to his claim. The RO provided that there is a lack of any scientific evidence documenting transmission of Hepatitis C with air gun injectors, and that the large majority of Hepatitis C infections can be accounted for by known modes of transmission, primarily blood transfusions before 1992 and IV drug use. The RO requested that the examiner opine as to whether, as between the two possible risk factors for Hepatitis C, air gun injections in service and a post-service blood transfusion in 1984, whether the Veteran's Hepatitis C can be "clearly associated" to the airgun injections in service In the April 2009 examination, the Veteran reported that he was unsure whether he had a blood transfusion for leg surgery in 1984. Test results showed that the Veteran was positive for Hepatitis C antibody. The diagnosis was Hepatitis C. The examiner stated that regarding which risk factor was the most likely cause of the Veteran's Hepatitis C, he indicated that it is possible that the Veteran contracted HCV during immunization in basic training. He was unsure whether he received a blood transfusion during a leg operation in 1984 and those medical records have been destroyed. The Veteran was aware that he was giving conflicting testimony but maintains that he was unsure he received a blood transfusion. It was stated that because we are unaware of whether a blood transfusion occurred he was unable to state which mode of transmission was responsible for his Hepatitis C, without resorting to mere speculation. Subsequent to Board remand, in October 2011 a VA medical examination for hepatitis, cirrhosis and other liver conditions was performed. Hepatitis C was diagnosed. It was reported that the Veteran was unsure that he received a blood transfusion in 1984 for a fractured femur. He stated that his mother thought he had (received a transfusion) but he was unable to obtain the records as they had been destroyed. He recalled getting vaccinated per airgun in the military, and he thought he had contracted hepatitis from this. He denied other risk factors. It was reported that the Veteran was asymptomatic for Hepatitis C since his successful treatment. The examiner opined that claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. It was stated that the Veteran likely had a blood transfusion in 1984, a time prior to blood being screened for Hepatitis C. It was stated that in his sworn statement (personal statement in 2008), the Veteran claimed that he got a blood transfusion, and that his mother thought he did (though he tells me that the records cannot be obtained to verify.) Getting Hepatitis C via blood transmission prior to 1992 was one of the most common ways of being exposed to Hepatitis C. The risk associated with getting Hepatitis C per this exposure is extremely high versus the much lower /more theoretical risk of getting Hepatitis C per air gun inoculation. The evidence is more strongly weighted toward him getting the infection via blood transfusion. It is less likely than not that the infection was obtained during service via airgun inoculation procedures. Analysis The Veteran has tested positive for the Hepatitis C virus in the past, but the medical evidence shows that subsequent to treatment, test results have not shown that he has the virus. Importantly though, recent VA medical records and examination reports show that the Veteran had or had been diagnosed with Hepatitis C. Testing has shown he has the Hepatitis C antibody. In this regard, it must be concluded that the requirement for a current disability is satisfied, even if the disability is currently in remission. McClain v. Nicholson, 21 Vet. App. 319 (2008). Thus, the Veteran has this claimed condition. Consequently, the determinative issue is whether it is attributable to his military service or dates back to his service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). The risk factors for Hepatitis C include intravenous (IV) drug use, blood transfusions before 1992, hemodialysis, intranasal cocaine, high-risk sexual activity, accidental exposure while a health care worker, and various kinds of percutaneous exposure such as tattoos, body piercing, acupuncture with non-sterile needles, shared toothbrushes or razor blades. VBA letter 211B (98-110) (November 30, 1998). Veterans also may have been exposed to HCV during the course of their duties as a military corpsman, medical worker, or as a consequence of being a combat Veteran. See VBA Fast Letter 04-13 (June 29, 2004). It is noted that service connection may not be granted for disability that is the result of a Veteran's own willful misconduct or, for claims filed after October 31, 1990, the result of his abuse of alcohol or drugs. See 38 C.F.R. § 3.301. The Veteran's STRs are absent for any complaints, findings or diagnoses referable to Hepatitis C or any liver disorder for that matter. The post-service medical data shows that the Veteran was diagnosed with and began treatment for hepatitis C, sometime in early 2002, which is more than 20 years after his military service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that a lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim). See also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability). It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in so doing, the Board may accept one medical opinion and reject others. Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). But, the Board is mindful that it cannot make its own independent medical determinations, and that there must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997), citing Colvin v. Derwinski, 1 Vet. App. 171 (1991). The medical evidence has been considered and the Board finds no competent medical evidence which relates the Veteran's Hepatitis C to his active service. In an April 2009 VA medical examination report, after reviewing the record, and considering the Veteran equivocal statement as to whether he had had a blood transfusion in 1984 stated that because we are unaware of whether a blood transfusion occurred he was unable to state which mode of transmission was responsible for his Hepatitis C, without resorting to mere speculation. In Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009), the Federal Circuit Court held that an examiner's statement, which recites the inability to come to an opinion, provides neither positive nor negative support for service connection; therefore, it is not pertinent evidence regarding service connection. The remainder of the report, however, must be considered as evidence of whether the disability was incurred in service. An even more recent precedent case also admonished the Board for relying on medical opinions that also were unable to establish this required linkage, without resorting to mere speculation, as cause for denying the Veteran's claims. See Jones v. Shinseki, 23 Vet. App. 382 (2010). Considering the foregoing, that April 2009 examination report is not considered pertinent for purposes of service connection here, and also as pointed out by the Board in September 2011, the wrong standard was requested of the examiner by the RO. The Veteran had testified he had had a blood transfusion in 1984, so for purposes of evidence of whether the Hepatitis C is related to his military service, it is noted that that examination report did also mention the Veteran's assertion, albeit conflicting, that he had had a post-service blood transfusion in 1984. In another VA examination, in October 2011 , after reviewing the file, to include the Veteran's assertions and medical history, a VA clinician opined that it is less likely than not that the Veteran's (hepatitis C) infection was obtained during service via airgun inoculation procedures, and the evidence is more strongly weighted toward infection via blood transfusion. The examination report was supported by rationale specifying that Hepatitis C via blood transmission prior to 1992 was one of the most common ways of being exposed to Hepatitis C, and that the risk associated with getting Hepatitis C per this exposure is extremely high versus the much lower /more theoretical risk of getting Hepatitis C per air gun inoculation. The Board is compelled to attach substantial probative weight on the VA examiner's medical opinion as it is well reasoned and supported by rationale. There is no competent medical evidence to the contrary to suggest that the Veteran's Hepatitis C is related to any risk factors associated with his military service. See VBA letter 211B (98-110) (November 30, 1998), and VBA Fast Letter 04-13 (June 29, 2004). While the Veteran may have indeed received air gun inoculations during service, there is no competent medical evidence in support of this assertion. Consideration has been given to the Veteran's testimony and statements that his Hepatitis C is related to air gun inoculations he received during service. As well, statements have been received from service members indicating that they too received inoculations by airgun in service. Lay statements may be competent to support a claim for service connection where the events or the presence of disability or symptoms of a disability are subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a), 3.159(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran's testimony and the other lay statements that have been provided, at least regarding how his Hepatitis C was contracted, are contradicted by evidence suggesting that he had a post-service blood transfusion, a noted risk factor for contracting Hepatitis C. Again, this assertion was offered in recorded testimony by the Veteran himself. Further, the matter at hand involves complex medical assessments that require medical expertise. A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997); see also Bostain v. West, 11 Vet. App. 124, 127 (1998). While the Veteran is competent to report what comes to him through his senses, he does not have medical expertise to provide a complex medical opinion as to the etiology of his hepatitis C. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Thus, his opinion is insufficient to provide the requisite nexus between his Hepatitis C and his military service. Based on the foregoing discussion, the Board finds that the Veteran's claim must be denied. While the Veteran has been diagnosed with Hepatitis C, the weight of the medical evidence is against a finding that this disorder is related to his military service. On these facts, the preponderance of the objective medical evidence of record is against the claim. Therefore, the benefit of the doubt doctrine is not for application herein, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for Hepatitis C is denied. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs