Citation Nr: 1330113 Decision Date: 09/19/13 Archive Date: 09/25/13 DOCKET NO. 06-32 140 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for hepatitis C. 2. Entitlement to service connection for a bilateral ear condition other than hearing loss in the right ear. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD A. Spector, Associate Counsel INTRODUCTION The Veteran had active service from March 1969 to March 1971, including in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, in which the RO denied, in pertinent part, the Veteran's claim of service connection for hepatitis C. The Veteran filed a notice of disagreement (NOD) with this determination in August 2008, and timely perfected his appeal in September 2006. This matter also comes before the Board on appeal from a May 2008 rating decision in which the RO denied, in pertinent part, the Veteran's claim of service connection for a bilateral ear condition other than hearing loss in the right ear (which was characterized as ear condition (ear drum surgery)). The Board observes that it is not entirely clear what "ear condition" the Veteran alleges is related to active service. He has contended both that he experiences an unspecified "ear condition" which he incurred during active service and also is entitled to service connection for the residuals of in-service ear drum surgery. The Board also observes that, in the April 2006 rating decision, the RO specifically denied a claim of service connection for hearing loss in the right ear. The Veteran did not appeal the April 2006 rating decision with respect to the denial of this claim. Nor did the Veteran submit any statements relevant to this claim within 1 year of the April 2006 rating decision which would render this decision non-final for VA purposes under 38 C.F.R. § 3.156(b). See Buie v Shinseki, 24 Vet. App. 242, 251-52 (2011) (explaining that, when statements are received within one year of a rating decision, the Board's inquiry is not limited to whether those statements constitute notices of disagreement but whether those statements include the submission of new and material evidence under 38 C.F.R. § 3.156(b)). The Board observes further that the Veteran's previously denied service connection claim for hearing loss in the right ear was reopened and denied on the merits in a January 2009 rating decision. This decision also was not appealed and became final. Having reviewed the Veteran's voluminous claims file, to include his multiple lay statements concerning his ear condition, the Board finds that this claim is as stated on the title page. The Veteran filed a NOD with the May 2008 rating decision with respect to his claim of service connection for an ear condition in July 2008, and timely perfected his appeal in September 2008. This matter also comes before the Board from a February 2010 rating decision in which the RO denied the Veteran's TDIU claim. The Veteran filed a NOD with this determination in March 2010, and timely perfected his appeal in July 2010. Although the Veteran initially requested a Travel Board hearing, he withdrew his hearing request in a February 2011 correspondence. 38 U.S.C.A. § 20.704(d) (2012). In March 2012, the Board remanded the issues on appeal for further examination. That development has been completed and the issue of service connection for hepatitis C is ready for review. Regrettably, as outlined below, further development is necessary before the Board can proceed on the issues of service connection for an ear condition and a TDIU. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the above claims. A review of the documents in such file reveals that there are additional VA treatment records. These records have been reviewed and considered by the Board. As a final introductory matter, it does not appear that the issue of entitlement to an increased rating for service-connected posttraumatic stress disorder (PSTD) has been addressed by the agency of original jurisdiction (AOJ). The July 2013 VA examiner stated that the Veteran's current symptoms of PTSD appear to have increased in frequency, severity, and duration since the previous C&P PTSD examination dated November 6, 2009. As the AOJ has not yet adjudicated this issue, it is referred back to the AOJ for appropriate action. The issues of service connection for an ear condition and a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's Hepatitis C was not manifested during his active service, nor is it otherwise causally related to such service. CONCLUSION OF LAW The criteria for a grant of service connection for hepatitis C have not been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a 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). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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 in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the duty to notify was satisfied by way of a letter sent to the Veteran in May 2005 that fully addressed all notice elements and was sent prior to the initial AOJ decision in this matter. The letter informed the Veteran of what evidence was required to substantiate the claim and of the Veteran's and VA's respective duties for obtaining evidence. A March 2006 letter also provided notice regarding how disability ratings and effective dates are assigned if service connection is awarded. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and other pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service treatment, Social Security Disability, private, and VA outpatient treatment records. Furthermore, the Veteran was afforded a VA examination in July 2010. Significantly, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Service Connection Legal Criteria Service connection may be granted for a disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. Service connection may also be granted for any disease diagnosed after discharge, 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). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). However, the absence of a documented disability while in service is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). When a Veteran does not meet the regulatory requirements for a disability at separation, he can still establish service connection by submitting evidence that a current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for the 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). 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. In determining whether service connection is warranted for a disability, 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 preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the Veteran. Analysis The Veteran contends that he acquired Hepatitis C on active duty. Specifically, the Veteran contends that he received hepatitis C from air gun immunizations, his job as a stretcher bearer in Vietnam, intercourse while stationed in Vietnam, dental work, burning of human waste, or a tattoo. The evidence indicates that the Veteran has been diagnosed with hepatitis C. 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. While mindful that intranasal cocaine and intravenous drug use are risk factors for hepatitis C, the Board observes that service connection cannot be established for a disability which results from willful misconduct or the primary abuse of alcohol or drugs. 38 U.S.C.A. § 105(a), 1131 (West 2002); Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). Willful misconduct is defined as an act involving conscious wrongdoing or a known prohibited action, and alcohol and drug abuse are, by statute, deemed to be willful misconduct. Libertine v. Brown, 9 Vet. App. 521 (1996); 38 C.F.R. §§ 3.1(n), 3.301 (2012). For that reason, a grant of service connection is precluded for any abuse of alcohol or drugs during service, and for any disorder, including hepatitis C, which is due to the abuse of alcohol or drugs. The Veteran's February 1971 discharge examination was void of a diagnosis of hepatitis C. The Veteran's service treatment records show that he did receive dental care in-service. However, the Veteran's service treatment records were void of any treatment for or diagnosis of hepatitis C. VA treatment records show ongoing treatment for hepatitis C. A July 2008 treatment record indicated that the Veteran had a fatty liver. A June 2009 record noted diffusely echogenic hepatic parenchyma, which may represent diffuse fatty liver infiltration and/or diffuse hepatocellular disease. A liver biopsy showed that the Veteran had chronic hepatitis with mild activity and mild fibrosis, grade 1, stage 1. SSA records obtained also show treatment for hepatitis C, but do not relate the Veteran's hepatitis C to his active service. In the September 2008 Substantive Appeal, the Veteran stated that he handled bloody people as a stretcher bearer. Additionally, he handled burning out house barrels. Furthermore, in a March 2010 letter, the Veteran reported that he was treated for hepatitis after leaving service at Parkland Hospital. He reported that his skin and eyes turned yellow. In a July 2010 letter, the Veteran reported that at an appointment at the Dallas VA Hospital, the physician told him the possible ways he could have obtained exposure to the hepatitis C virus were handling 50 gallon drums that were used for toilets and then burned, dental work at the 11th mortar, and as a stretcher bearer for the medical bunker on his base. He further stated that these facts provide that he was at high risk to obtain hepatitis C. The Veteran was afforded a hepatitis C VA examination in July 2010. The Veteran reported that he was diagnosed with hepatitis C in 1971 at Parkland Hospital in Dallas. He was jaundice and was told he had serum hepatitis. He was diagnosed with hepatitis C in the 1980's. The Veteran also reported in-service hepatitis C risk factors, to include a stretcher bearer in Vietnam, intercourse while stationed in Vietnam, dental work, burning of human waste, and a tattoo. Additionally, the examiner noted that the Veteran denied any history of past or present intravenous drug usage, however, it was noted that multiple examiners in the 1990's indicated that the Veteran had used heroin and speed. After examining the Veteran, the VA examiner diagnosed him with hepatitis C. The examiner concluded that the most likely etiology of the Veteran's hepatitis C was drug usage, as this was a much greater risk factor than the other conditions mentioned above. The Board finds that the weight of the competent evidence shows that the Veteran is not entitled to service connection for hepatitis C. Although he has a current diagnosis of hepatitis C, the existing medical evidence does not show that this condition was manifested in service, or is otherwise related to service. While the Veteran has submitted medical evidence indicating he has been diagnosed with hepatitis C, there simply is no medical evidence of record etiologically linking hepatitis C to the Veteran's military service. As previously mentioned, after considering all of the Veteran's reported hepatitis C risk factors, the July 2010 VA examiner concluded that the most likely etiology of the Veteran's hepatitis C was drug usage. As noted above, the Board observes that service connection cannot be established for a disability which results from willful misconduct or the primary abuse of alcohol or drugs. 38 U.S.C.A. § 105(a), 1131 (West 2002); Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). As such, entitlement to service connection on a direct basis must be denied. The Board has carefully considered the Veteran's assertions that his hepatitis C is related to his active duty. However, as a layperson with no demonstrated medical training or experience, he is not competent to give a medical opinion on the diagnosis, causation, or aggravation in the context of the particular claim at issue. See Bostain v. West, 11 Vet. App. 124 (1998); Routen v. West, 142 F.3d. 1434 (Fed. Cir. 1998); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). The Board acknowledges that the Veteran is competent to give evidence about the symptoms that he has experienced. Layno v. Brown, 6 Vet. App. 465 (1994). Competency must be distinguished, however, from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67 (1997). The Federal Circuit Court has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Thus, the Board rejects the Veteran's unsubstantiated lay contentions because medical evidence in the file shows his hepatitis C did not have its onset in-service, but first manifested more than a decade after service. The VA examiner's opinion noted above is based on review of the claims folder, including the Veteran's service treatment records, and the opinion thoroughly discuss the Veteran's pertinent in-service and post-service medical records. Given the VA examiners' access to the claims folder and the thoroughness and detail of the opinion, the Board finds this opinion to be highly probative in determining whether service connection for hepatitis C is warranted. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to service connection for hepatitis C, must be denied. ORDER Service connection for hepatitis C is denied. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). A. Ear Condition The Veteran contends that his ear condition developed on active duty. Specifically, the Veteran reported that he had a parasite in his right ear while in Vietnam and his right ear has not been the same since that time. The Veteran was afforded an ear disease VA examination in April 2013. Upon examination, the Veteran did not show signs or symptoms attributable to chronic ear infections, inflammation, or cholesteatoma. Specifically, the examiner noted that the Veteran's ear canal, tympanic membrane, and external ear were all normal. The examiner noted that the Veteran had not been diagnosed with an ear or peripheral vestibular condition. The examiner stated that from the history provided by the Veteran and the examination, he was unable to find any ear condition whatsoever other than the Veteran's reported hearing loss and tinnitus. In a May 2013 VA examination addendum the VA examiner stated that the claims folder was reviewed, including service medical records and other pertinent records, including the Remand. The examiner's review of service treatment records showed the Veteran appeared to have been treated for acute otitis externa September 1970 with Cortisporin Otic ear drops. At military separation, otoscopic exam was normal. The Veteran's acute otitis externa recorded September 1970 would not represent a chronic ear condition. I found no evidence of a chronic ear condition in the service medical records. Additionally, the in-person examination failed to show evidence of any "bilateral ear condition." The examiner again repeated that bilateral external auditory canals and tympanic membranes were normal in appearance. Since he failed to identify any specific bilateral ear condition other than hearing loss in the right ear, it was the examiner's opinion that it was less likely than not (i.e., a 50 percent or greater probability) that a bilateral ear condition other than hearing loss in the right ear, if diagnosed, was caused or aggravated (permanently worsened) by active service or any incident of service. However, a March 2011 VA treatment record notes a diagnosis of otitis externa. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (stating that when the Secretary undertakes to provide a medical examination or obtain a medical opinion, he must ensure that the examiner providing the report or opinion is fully cognizant of the claimant's past medical history). Therefore, an addendum opinion to the April 2013 VA examination is necessary to determine whether the Veteran's March 2011 diagnosis of otitis externa is a chronic or acute disability, and whether it is caused by, or are otherwise related to, the Veteran's time in service, to include in-service treatment for otitis externa. B. TDIU With respect to the Veteran's TDIU claim, the Board notes that service connection currently is in effect only for PTSD. Because adjudication of the Veteran's service connection claim for a bilateral ear condition other than hearing loss in the right ear, and the increased rating issue referred in the Introduction will likely impact adjudication of his TDIU claim, these claims are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are inextricably intertwined when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Accordingly, the case is REMANDED for the following action: 1) Return the claims file to the VA examiner who conducted the April 2013 VA examination and May 2013 addendum opinion for an additional addendum opinion regarding the issue of entitlement to service connection for an ear condition. A copy of this remand and all relevant medical records should be made available to the examiner. If this examiner is not available, send the claims file and a copy of this remand to another appropriate examiner to address the subsequent opinion request. The examiner should state whether the Veteran's otitis externa diagnosis in March 2011 VA treatment records is a chronic or acute condition. Additionally, the examiner should render an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the diagnosis of otitis externa in March 2011 had its onset in service or is related to any in-service disease, event, or injury, to include an in-service treatment for otitis externa in 1970. In rendering these opinions, the examiner must review and discuss the Veteran's service treatment records, VA examination reports, VA treatment records (March 2011 June 2013, and July 2013 Audiological and ENT consultations), the lay statements discussing the in-service incident and the residuals the Veteran experienced thereafter, and any other relevant information. Furthermore, the examiner should discuss the Veteran's lay statements regarding the onset and duration of symptoms when discussing the offered opinion. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 2) Thereafter, the AMC/RO must review the claims file to ensure that the foregoing requested development has been completed. In particular, review the requested medical opinion to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 3) Following the completion of the foregoing, the AMC/RO should readjudicate the Veteran's claims. If a claim is denied, supply the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs