Citation Nr: 1329442 Decision Date: 09/13/13 Archive Date: 09/20/13 DOCKET NO. 07-19 654 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for hepatitis C. 2. Entitlement to service connection for cirrhosis of the liver. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran had active service from July 1971 to May 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a July 2006 rating decision of the Salt Lake City, Utah, regional office (RO) of the Department of Veterans Affairs (VA). Jurisdiction of this case was thereafter transferred to the RO in San Diego, California. This appeal was previously before the Board in October 2010 and August 2012. On both occasions the Board remanded the appeal for further development. The requested development has been completed to the extent that is possible, and the appeal has been returned to the Board for further review. The Veteran was scheduled for a hearing before a Veterans Law Judge at the RO in January 2010. He did not appear, and he has not provided an explanation for his failure to appear. The Board will proceed with adjudication of his claims. The Board has reviewed the Veteran's electronic record (Virtual VA) prior to rendering a decision in this case. It does not contain any evidence not already in the claims folder or considered by the RO. FINDINGS OF FACT 1. Hepatitis C and cirrhosis of the liver were not shown during service or until many years after service. 2. Hepatitis C and cirrhosis of the liver have not been related to inoculation with an air gun during service or any other event in service by competent medical opinion. CONCLUSIONS OF LAW 1. Hepatitis C was not incurred due to active service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. § 3.303(a) (2012). 2. Cirrhosis of the liver was not incurred due to active service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303(a), 3.310(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes 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) (2013). Proper VCAA notice must inform the claimant of any information and 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) (West 2002); C.F.R. § 3.159(b)(1) (2012). Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Pelegrini, the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. The Court has also 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In this case, the Veteran was provided with a letter in November 2005 that contained all of the notification required by 38 C.F.R. § 3.159, as defined by Pelegrini. This letter was provided to the Veteran prior to the initial adjudication of his claims. The Veteran has also been provided with additional letters that are specific to hepatitis C, and included a list of risk factors for this disease. Although the Veteran has not been provided with notification regarding the assignment of disability ratings and effective dates, this cannot result in any prejudice to the Veteran. As his claims will be denied, there will be no disability rating or effective date assigned. The Veteran does not argue that he is prejudiced by this omission. Moreover, as the Veteran has failed to provide VA with a current address, any additional notice would be of no benefit as it will not reach him. The Board concludes that the duty to notify has been met. The Board further concludes that the duty to assist has also been met. The Veteran's service treatment records have been obtained. Private medical records and VA treatment records have been obtained, including VA treatment records from New Jersey, Connecticut, Utah, and California. Records have been obtained from the Social Security Administration (SSA). The Veteran was scheduled for a hearing before a Veterans Law Judge, but failed to report. He was scheduled for appropriate VA examinations but also failed to report. The Veteran did not reply to the most recent requests to identify all private and VA treatment sources. At this point the Board notes that this appeal has been remanded on two prior occasions to, among other things, ascertain the Veteran's current address. All attempts to contact the Veteran have been unsuccessful, and he has not contacted VA in over six years. The Board notes that it is the burden of the Veteran to keep the VA apprised of his whereabouts. If he does not do so, there is no burden on the part of the VA to turn up heaven and earth to find him. Hyson v. Brown, 5 Vet. App. 262, 265 (1993). Furthermore, "[T]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In view of current circumstances, the Board finds that all development has been completed to the extent possible. There is no indication that there is any relevant evidence outstanding in these claims that can be obtained without assistance from the Veteran, and the Board will proceed with consideration of his appeal. Service Connection The Veteran contends that he has developed hepatitis C as a result of active service. He argues that his hepatitis C is the result of air gun inoculations he received when he initially began military service. He further believes that the cirrhosis is due to his hepatitis. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. However, this method may be used only for the chronic disabilities noted in 38 C.F.R. § 3.309, which does not include hepatitis C or cirrhosis of the liver. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service connected disability. In this instance, the veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). With regard to the medical evidence, a diagnosis or opinion by a health care professional is not conclusive, and is not entitled to absolute deference. Indeed, the Court has provided guidance for weighing medical evidence. The Court has held, for example, that in meeting our responsibility to weigh the credibility and probative value of the evidence, we may accept one medical opinion and reject others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999); 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 it must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another. Evans v. West, supra; see also Rucker v. Brown, 10 Vet. App. 67, 74 (1997), citing Colvin v. Derwinski, 1 Vet. App. 171 (1991). Thus, the weight to be accorded the various items of evidence in this case must be determined by the quality of the evidence, and not necessarily by its quantity or source. In addition, the Federal Circuit has held that "[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 profession." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence." However, although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as tinnitus, hand pain, and shortness of breath, the Veteran is not competent to provide evidence as to more complex medical questions such as the etiology of hepatitis C or cirrhosis, as is the case here. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). A disorder may be service connected if the evidence of record, regardless of its date, shows that the veteran had a chronic disorder in service or during an applicable presumptive period, and that the veteran still has such a disorder. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-95 (1997). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). In this case, the records establish that the Veteran has current diagnoses of both hepatitis C and cirrhosis of the liver. He has therefore met the first requirement for service connection. However, the Board finds that there is no evidence of either hepatitis C or cirrhosis during service or until many years after discharge from service, and no competent medical opinion that relates these disabilities to active service. The service treatment records are entirely negative for evidence of either hepatitis C or cirrhosis. The Veteran answered "no" to a history of liver trouble on the May 1974 Report of Medical History he completed at discharge from active service. A medical examination conducted at this time found the Veteran to be normal. The post service medical records are also negative for evidence of hepatitis C or cirrhosis of the liver for many years after discharge. The Veteran states that these disabilities were initially diagnosed in the early 1990s, which would be approximately 16 to 20 years after his discharge from service. Private records from as early as November 1999 note a history of hepatitis C. An October 2001 VA treatment record also notes a history of hepatitis C, and further notes that the Veteran had been treated with Interferon and Ribavirin since September 2000. Records dating through 2007 include tests that confirm cirrhosis of the liver, and further show that the Veteran continued to be treated for both hepatitis C and cirrhosis of the liver. Significantly, not a single one of the medical professionals who have treated the Veteran has related either his hepatitis C or cirrhosis of the liver to active service, or even noted that the Veteran was inoculated with an air gun. The Veteran argues that he contracted hepatitis C as a result of receiving inoculations with an air gun during service but he has not offered any competent medical evidence or indeed any evidence at all beyond his bare assertions in support of his theory. The Board notes that while the Veteran is competent to report that he received inoculations with an air gun in service, he has not shown that he is a medical professional who is competent to state that the air gun contained hepatitis or that it led to the development of his hepatitis C or cirrhosis. The Board further notes that the Veteran failed to report for an examination at which a medical professional who was competent to express an opinion as to whether or not the Veteran's theory is valid could have provided such an opinion. In the absence of any evidence of either hepatitis C or cirrhosis of the liver in service or until many years after discharge from service, and in the absence of any competent evidence that can relate the Veteran's current diagnoses of hepatitis C or cirrhosis to an event in service, entitlement to service connection for these disabilities is not (CONTINUED ON NEXT PAGE) demonstrated. To the extent that the Veteran argues his cirrhosis has developed due to his hepatitis, there is no basis for a grant of service connection on a secondary basis as service connection for hepatitis C is not established. ORDER Entitlement to service connection for hepatitis C is denied. Entitlement to service connection for cirrhosis of the liver is denied. ____________________________________________ THOMAS H. O'SHAY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs