Citation Nr: 1330460 Decision Date: 09/23/13 Archive Date: 09/30/13 DOCKET NO. 07-09 957 ) DATE ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for hepatitis C. 2. Entitlement to service connection for cirrhosis of the liver. 3. Entitlement to service connection for diabetes mellitus. 4. Entitlement to service connection for arthritis. 5. Entitlement to service connection for lumbar spine degenerative disc disease with left sciatic radiation. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Counsel INTRODUCTION The Veteran served on active duty from October 1965 to October 1967. He died in January 2011. The Appellant is the Veteran's surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions in April 2006 and in July 2007 of a Department of Veterans Affairs (VA) Regional Office (RO). Before the Board promulgated a decision on the Veteran's appeal he died. In a decision in March 2011, the Board dismissed the appeal. The RO has substituted the Appellant for the Veteran. In February 2012, the VA Pension Management Center notified the Appellant that her claim for accrued benefits was being processed as a request for substitution under 38 U.S.C.A. § 5121A. The Board is proceeding with the Appellant in the place of the Veteran. FINDINGS OF FACT 1. The Veteran did not have service in Vietnam, and his service in Korea was prior to the period recognized by the Department of Defense as the time Agent Orange was used in Korea. There is no evidence that he was exposed to herbicides on active duty. 2. Hepatitis C was not affirmatively shown to have been present in service, and hepatitis C, first diagnosed after service, was unrelated to an injury, disease, or event in service. 3. Cirrhosis of the liver was not affirmatively shown to have been present in service, cirrhosis of the liver was not manifested to a compensable degree within one year from the date of separation from service, and cirrhosis of the liver, first diagnosed after service, was unrelated to an injury, disease, or event in service. 4. Diabetes mellitus was not affirmatively shown to have been present during service; diabetes mellitus was not manifested to a compensable degree within one year from the date of separation from service; diabetes mellitus first diagnosed after service beyond the one-year presumptive period for a chronic disease, was unrelated to an injury, disease, or event in service. 5. There is no medical evidence demonstrating arthritis during service or at any time thereafter. 6. A low back disability, diagnosed as degenerative disc disease of the lumbar spine, was not affirmatively shown to have been present during service or for many years thereafter, and was unrelated to an injury, disease, or event in service. CONCLUSIONS OF LAW 1. The criteria for service connection for hepatitis C have not been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2013). 2. The criteria for service connection for cirrhosis of the liver have not been met. 38 U.S.C.A. §§ 1110, 1112, 1116, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 3. The criteria for service connection for diabetes mellitus have not been met. 38 U.S.C.A. §§ 1110, 1112, 1116, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 4. The criteria for service connection for arthritis have not been met. 38 U.S.C.A. §§ 1110, 1112, 1116, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 5. The criteria for service connection for lumbar spine degenerative disc disease with left sciatic radiation have not been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2013). The Veterans Claims Assistance Act of 2000 (VCAA) Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Letters dated in December 2005 and May 2007 satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b)(1). In any event, neither the Veteran nor the Appellant has alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 556 U.S. 396 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. In a March 2007 letter, the Veteran informed VA he was receiving monetary benefits from the Social Security Administration. He apparently did so as this was potentially relevant to his receipt of VA pension benefits. As neither the Veteran nor the Appellant has argued that the SSA records are relevant to the service connection claims before the Board, VA is not obligated to obtain the records. See Golz v. Shinseki, 590 F.3d 1317, 1322 (Fed. Cir. 2010) (there is no duty to assist when there is no indication that the records are potentially relevant). The Board obtained VHA opinions in November 2012 and January 2013 addressing the hepatitis C and cirrhosis claims. The Appellant has not argued, and the record does not reflect, that these opinions, taken together, were inadequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). As the evidence of record does not indicate that diabetes mellitus, arthritis, and lumbar spine degenerative disc disease may be associated with service, a medical opinion is not required under the duty to assist. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110. Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). The showing of a chronic disease in service requires a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 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). VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and weight, factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competency is a question of fact, which is to be addressed by the Board. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). When the evidence is admissible, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Hepatitis C and Cirrhosis of the Liver As for hepatitis C, there are several risk factors recognized for contracting hepatitis, including: organ transplants before 1992, transfusions of blood or blood products before 1992, hemodialysis, accidental exposure to blood by health care workers (to include combat medics or corpsman), intravenous drug use or intranasal cocaine use, high risk sexual activity, and other direct percutaneous (through the skin) exposure to blood such as by tattooing. The service treatment records show that in August 1966, in September 1966, and in October 1966 the Veteran complained of right upper quadrant abdominal pain. On one occasion his temperature was 99 and a gram stain was positive for gonorrhea. In January 1967 and February 1967, the Veteran was followed for nonspecific urethritis. In March 1967 and in May 1967, the Veteran complained of persistent pain in the right side below the ribcage. In May 1967, no pathology was found. Liver panel in June 1967 it was noted that the lab work was normal. The Veteran had a similar complaint in July 1967. In July 1967, the Veteran was hospitalized for five days for evaluation of abdominal pain. No disease was found. On separation examination in October1967, the Veteran complained of "side" trouble. The entrance and service separation examinations do not note any tattoo. After service, in 2002, VA records show that the Veteran was seen for polyarthralgia and there was reference to hepatitis C. In July 2004, there was a history of hepatitis C and cirrhosis secondary to hepatitis C. It was noted that hepatitis C had been diagnosed in 1994. Also, there was a long history of hepatitis C and cirrhosis and heavy alcohol use. The Veteran, who was then suffering from ascites secondary to hepatitis C. In August 2005, the Veteran filed his claim of service connection for hepatitis C. In response to a VA Hepatitis Risk Factors Questionnaire he reported that he had engaged in high risk sexual activity and shared toothbrushes and razor blades during service. He also reported that he had a small tattoo on his left arm, and that he had come in contact with blood, urine specimens, bacteria, and "all types of diseases" when he worked at a hospital. The DD-214 shows that the Veteran was light weapons infantryman. There is no showing in the service records that he worked at a hospital during service. In June 2006, the Veteran filed a claim for service connection cirrhosis of the liver. In January 2011, the Veteran died. The cause of death was end stage renal disease. In July 2012, the Board obtained an opinion from a VHA physician (expert), who is Board certified in internal medicine and infectious diseases. After reviewing the file, the VHA expert stated that it was less likely that not that hepatitis C or liver cirrhosis was related to any illness, disease, complaint, or event during military service. The VHA expert explained: That most cases of hepatitis C do not have acute hepatitis that is clinically recognized as most of the time hepatitis C is asymptomatic. A minority [of patients] shows signs of acute hepatitis symptoms including [right upper quadrant] pain, nausea, and jaundice lasting for 2 to 12 weeks. ALT and AST levels become elevated. Chronic hepatitis C symptoms are fatigue, nausea, body aches and weight loss. The Veteran's clinical picture described in the STRs is not suggestive of acute or chronic hepatitis C. The right sided abdominal and "side" pain, lasting 9 months did not fit (lasting too long for acute hepatitis C and abdominal pain is usually not seen in chronic hepatitis C). Also, the Veteran had a normal liver test (AST=13) and no other findings (jaundice, etc) to suggest hepatitis. The most likely scenario suggested by the medical records is that the Veteran did not have hepatitis C in 1966 and 1967 and he acquired hepatitis sometime between 1967 and 1994. Since we do not have any medical records for that time period, the exact time of onset of hepatitis C is speculative. The risk of transmission by personal care items is much lower than by the commonly recognized routes of transmission such as injecting drug use, and receiving blood or blood products prior to 1987. Hepatitis C is not transmitted by casual contact or sharing of food or drinks. In an addendum in January 2013, the VHA expert stated that she was not able to find any literature indicating outbreaks of gonorrhea with hepatitis C. The VHA expert explained: That the two diseases have different routes of transmission. Hepatitis C is mainly associated with transmission by contaminated needles or percutaneously by blood. After summarizing various medical studies, the VHA expert stated that: It was less likely than not that there was significantly elevated risk of contracting hepatitis C "due to gonorrhea in 1966. The VHA expert stated that hepatitis C is caused by different micro-organism than gonorrhea with a different usual route of transmission. The risk of incidental sexual transmission of hepatitis C with gonorrhea would only be elevated if it took place among injecting drug users or other high risk individuals. The three elements to establish service connection are: (1) a present disability; (2) an in-service incurrence of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden, 381 F.3d at 1167. As for the first element, hepatitis C and cirrhosis of the live were shown at the time the Veteran filed his claim for service connection. As for the second element, in-service incurrence of hepatitis or cirrhosis of the liver by injury or disease or event, there is no competent lay or medical evidence of an injury or disease or event in service, resulted in hepatitis C or cirrhosis of the liver. The service treatment records show no complaint or treatment for hepatitis C or cirrhosis of the liver. There are three arguments about in-service incurrence of hepatitis C. First, hepatitis C was related to sexual activity or gonorrhea contracted in service; second, hepatitis C was related to symptoms of abdominal pain; and third, the Veteran was exposed to blood and personal care items, such as shared razor blades and toothbrushes. With regard to his first argument, the VHA expert concluded that it was less likely than not that hepatitis C was related to in-service gonorrhea, noting that hepatitis C is caused by different micro-organism than gonorrhea with a different usual route of transmission. With regard to the second argument, the VHA expert stated that it was less likely than not that the complaints of abdominal pain in service were early manifestations of hepatitis C, as the symptoms were not consistent with chronic hepatitis C, and the Veteran had normal liver test in service and no other findings suggestive of hepatitis C at that time. As noted above, there is no objective evidence that the Veteran was exposed to blood during his period of service. The record shows that he did not work in a hospital until after service. The VHA expert further stated that the risk of transmission by a personal care items was much lower than by the commonly recognized routes of transmission such as injecting drug use and receiving blood or blood products prior to 1987. In the absence of competent and credible evidence that establishes that the Veteran was exposed to hepatitis C by injury or disease or event in service, the second element of service connection is not established and the Board need not reach the third element, the so called nexus requirement, because all three elements must be proved to establish service connection. The claim for cirrhosis, which has been identified as secondary to hepatitis C, falls for the same reason. As the preponderance of the evidence is against the claim of service connection for hepatitis C and cirrhosis of the liver, there is no doubt to be resolved and service connection for hepatitis C and cirrhosis of the liver is not warranted. Diabetes Mellitus It is asserted that diabetes mellitus was related to the Veteran's exposure to Agent Orange during service in the demilitarized zone (DMZ) in Korea. Certain diseases associated with Agent Orange exposure in service are presumed to be service connected if the disease is manifested to a compensable degree within a specified time period. 38 C.F.R. §§ 3.307, 3.309. If a Veteran was exposed to a herbicide agent, including Agent Orange, during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 U.S.C.A. § 1116; 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 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d) are also satisfied: chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes mellitus, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). In addition, on October 13, 2009, in accordance with authority provided in 38 U.S.C. § 1116 , the Secretary of VA announced his decision to establish presumptions of service connection, based upon exposure to herbicides within the Republic of Vietnam during the Vietnam era, for three new conditions: ischemic heart disease, Parkinson's disease, and B cell leukemia. The final rule was issued in August 2010 and became effective August 31, 2010. See 75 Fed. Reg. 53,202 (Aug. 31, 2010). Veterans who served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). The United States Department of Defense ("DOD") has also confirmed that Agent Orange was used from April 1968 through July 1969 along the demilitarized zone ("DMZ") in Korea. Agent Orange was used to defoliate the fields of fire between the front line defensive positions and the south barrier fence. If it is determined that a Veteran who served in Korea during this time period belonged to one of the units identified by DOD, then it is presumed that he was exposed to herbicides containing Agent Orange, and the presumptions outlined in 38 C.F.R. § 3.309(e) will apply. See MR21- 1MR, Part VI, Chapter 2, Section B. Even if the statutory presumptions are inapplicable, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Veterans Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a claimant from establishing service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The service treatment records do not show any complaint, finding, history, treatment, or diagnosis related to diabetes mellitus. After service on VA examination in August 1994, which included a complete blood count and urinalysis testing, diabetes mellitus was not diagnosed. VA records in May 2005 note a diagnosis of diabetes mellitus, type 2. On the argument that Agent Orange caused diabetes mellitus, the service personnel records show that the Veteran served in Korea. However, a presumption of service connection based on exposure to Agent Orange in Korea is limited to the period from April 1968 through July 1969 along the demilitarized zone ("DMZ"), and then only for servicemen attached to one of the units identified by DOD. In this case, the Veteran's entire period of service was prior to the identified period and, therefore, service connection based on Agent Orange exposure in Korea is not warranted. In addition, while presumptive service connection is also available for service in the Republic of Vietnam, the Veteran's service personnel records do not show that the Veteran served in Vietnam. Based on the foregoing, presumptive service connection based on herbicide exposure is not warranted for diabetes mellitus. It is not argued and the evidence does not show that diabetes mellitus, type 2, was affirmatively shown to have had onset during service or that symptoms of diabetes mellitus, type 2, were noted in service. For this reason, 38 C.F.R. §3.303(a) (service connection based on affirmatively showing onset in service) and 38 C.F.R. § 3.303(b) (service connection based on chronicity and continuity of symptomatology) do not apply. After service there is no medical evidence that diabetes mellitus, type 2, is related to an injury, disease, or event in service. 38 C.F.R. § 3.303(d). And as diabetes mellitus was not diagnosed for more than 30 years after separation from service, presumptive service connection based on the one year presumption for diabetes mellitus following discharge from service in 1967 as a chronic disease is not established. 38 C.F.R. §§ 3.307 and 3.309(a). For the reasons stated, the preponderance of the evidence is against the claim of service connection for diabetes mellitus, type 2, and the benefit of the doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). Arthritis Where a Veteran served ninety days or more during a period of war or during peacetime after December 31, 1946, and certain diseases, such as arthritis, become manifest to a compensable degree within one year after the veteran's military service ends, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113 38 C.F.R. §§ 3.307, 3.309(a). This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d). The service treatment records do not show a diagnosis of arthritis. After service VA records show that in April 2002 the Veteran complained of polyarthralgia (painful joints). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Painful joints without a diagnosed or identifiable underlying malady or condition does not in and of itself constitute a disability for which service connection may be granted. See Sanchez-Benitez, 13 Vet. App. at 285. A disability is required in order to establish service connection. Brammer, 3 Vet. App. at 225; see Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, in the absence of evidence of diagnosed arthritis, the preponderance of evidence is against service connection and the claim is denied. 38 U.S.C.A. § 5107(b). Lumbar Spine Degenerative Disc Disease The service treatment records do not document any lower back complaint. The service separation examination in August 1967 noted a normal spine. After service VA records show that in June 1980 the Veteran was seen for back strain after pushing a truck several days earlier. The Veteran stated that the back pain radiating to the area of the right knee. The assessment was low back strain and to rule out a herniated disc. On VA examination in August 1994, the Veteran stated that he began to experience low back pain in 1985. X-rays showed degenerative disc disease at L4-5 and L5-S1. The diagnosis was degenerative disc disease of the lumbar spine with left sciatic radiation. In June 2006, private medical records included a history of back injury 20 years earlier with back trouble ever since. The service treatment and examination records contain no finding or history of a disability of the lumbar spine. The first evidence of a back disability was in 1980, more than 12 years after separation from service, when the Veteran complained of a back injury from pushing a truck. In 1994 the Veteran stated that he back pain since 1985 and in 2006 he stated that he had back problems for about 20 years. The Veteran's complaints and history are consistent with the onset of back pain following the injury in 1980 rather than during service. Although the Veteran asserted that his back disability was related to active service, the history of the disability is not consistent with either the evidentiary record or the Veteran's own statements. And the Board finds the Veteran's statements are not probative evidence of a nexus between degenerative disc disease of the lumbar spine and service. As the preponderance of the probative evidence is against the claim, there is no doubt to be resolved, and service connection is not warranted. ORDER Service connection for hepatitis C is denied. Service connection for cirrhosis of the liver is denied. Service connection for diabetes mellitus, type 2, is denied. Service connection for arthritis is denied. Service connection for lumbar spine degenerative disc disease with left sciatic radiation is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs