Citation Nr: 1330704 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 08-07 153 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for hepatitis C. (The issue of entitlement to waiver of recovery of an overpayment of disability compensation in the amount of $86,172.50 is the subject of a separate decision.) REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD D. Johnson, Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket. The Veteran, who is the appellant, served on active duty from January 1977 to December 1978. This matter is before the Board of Veterans' Appeals (Board) on appeal of a December 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In April 2011, the Board remanded the case for further development, which has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran appeared at a hearing before the undersigned Veterans Law Judge in July 2011. A transcript of the hearing is in the Veteran's file. In January 2012, in accordance with 38 U.S.C.A. § 7109 and 38 C.F.R. § 20.901, the Board obtained a medical expert opinion from the Veterans Health Administration (VHA). Additional evidence was received following the last Supplemental Statement of the Case. In April 2013, the Veteran, through his representative, submitted a waiver of initial consideration by the RO in accordance with 38 C.F.R. § 20.1304. FINDING OF FACT Hepatitis C was not affirmatively shown to have had onset during service; and there is no competent medical evidence that hepatitis C, first diagnosed after service, is related to a disease, an injury, or an event in service. CONCLUSION OF LAW The criteria for service connection for hepatitis C have not been met. 38 U.S.C.A. §§ 1131, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2013). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (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 v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre-adjudication VCAA notice by letter dated in September 2005. As for the content of the VCAA notice, the document complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); and of Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (to the extent of pre-adjudication VCAA notice). To the extent the notice did not include the Dingess provisions for the effective date of a claim and for the degree of disability assignable, the VCAA notice was deficient. As the claim is denied, no effective date or disability rating is assignable by operation of law. Therefore, the limited content error in the VCAA notice as to the downstream elements of a claim of service connection does not affect the essential fairness of the adjudication of the claim, and the omission of content is not prejudicial. Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained the service treatment records, VA records, and private medical reports. The Board also obtained a medical expert opinion from the VHA in January 2012. The opinion contains the pertinent medical history and clinical findings and the Board finds that the report is adequate to decide the claim. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). As the Veteran has not identified any additional evidence pertinent to the claim and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. REASONS AND BASES FOR FINDING AND CONCLUSION Principles of Service Connection 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. § 1131. Generally, to establish entitlement to VA disability compensation, 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). In this case, several legal theories operate in conjunction with 38 U.S.C.A. § 1131 as implemented in 38 C.F.R. § 3.303. 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). 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). Evidentiary Standards 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). As the Veteran did not serve in combat, the combat provision of 38 U.S.C.A. § 1154(b) does not apply. 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 curium, 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). Facts The service treatment records do not document hepatitis C. On a health record in February 1978, the Veteran denied having hepatitis. On separation examination in October 1978, there were no identifying body marks, scars, or tattoos. After service, in a VA neuropsychiatric report in January 1979, the Veteran stated that he had experimented with drugs. Records from University of Texas Medical Branch show that hepatitis C was first noted in May 1999. In December 2004, the Veteran was evaluated for treatment of hepatitis C. It was noted that he was positive for intravenous drug abuse and tattoos and the rest of the risk factors were unknown. In March 2004 and in March 2005, the Veteran's history included substance abuse and high-risk sexual behavior. In July 2005, the Veteran asserted that he contracted hepatitis C in service when he was vaccinated by air injectors. In other statements, the Veteran stated that hepatitis C was not confirmed until 1992 or 1993, after he donated blood and was told that he was positive for hepatitis C. In April 2006, the RO solicited additional information from the Veteran concerning risk factors for exposure to the hepatitis C. In a detailed response, the Veteran denied the following risk factors: organ transplant, blood transfusions or exposure to blood products before 1992, hemodialysis, accidental exposure to blood as a health care worker, and intravenous drug use or intranasal cocaine use. As for high-risk sexual activity, he indicated that he engaged unprotected sex up until he contracted a sexually transmitted disease in 1986 or 1987. He stated that he had no tattoos or body piercings, and he had not received acupuncture. In July 2011, the Veteran testified that his only risk factor for contracting hepatitis C was through air injection immunization guns in service. He stated that he admitted to intravenous drug use once while in prison, but only in order to get the doctor to stop harassing him. He categorically denied ever having used intravenous drugs. In December 2011, the Board requested a medical opinion for a VHA expert in liver diseases as to the likelihood that hepatitis C was related to inoculation by air gun during service. In January 2012, after review of the Veteran's file, the VHA expert expressed the opinion that it was less likely (a probability of less than 50 percent) that hepatitis C was related to inoculation by air gun during service. The VHA expert provided a lengthy and detailed summary of several clinical studies regarding the transmission of hepatitis C. The VHA expert's rationale is summarized as follows: While it was possible that hepatitis C was transmitted by a jet injector in 1977 or 1978, without past documentation of a negative hepatitis C blood test, a clinical estimation of the transmission date is subject to some doubt. The main risk factors for hepatitis C remained intravenous drug use and that the likelihood of hepatitis C transmission by jet injector was difficult to ascertain. Also, a pre-existing hepatitis C infection could not be ruled out from the available records, because hepatitis C blood tests cannot distinguish between old and new infections. The VHA expert concluded that it was less likely (a probability less than 50 percent) that the Veteran's hepatitis C was related to inoculation by air gun during service. Analysis The Veteran asserts that hepatitis C was contracted during service by an air gun injection. 38 C.F.R. § 3.303(a) (Affirmatively Showing Inception in Service) The service treatment records contain no complaint, finding, history, treatment , or diagnosis of hepatitis C. On separation examination, there was no evidence of tattoos and there was no evidence of drug use during service. On the basis of the service treatment records, hepatitis C was not affirmatively shown to have had onset during service and service connection under 38 C.F.R. § 3.303(a) is not warranted. 38 C.F.R. § 3.303(b) (Chronicity and Continuity) As hepatitis C is not a chronic disease listed in 38 C.F.R. § 3.309(a), the theories of service connection pertaining to chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) apply. See Walker v. Shinseki, 708 F.3d (Fed. Cir. 2013) (The continuity of symptomatology avenue to service connection under regulation creating presumption of service connection for chronic diseases manifesting during service and then again at any later date is available only for chronic diseases enumerated in the only regulation listing named chronic diseases. 38 C.F.R. §§ 3.303(b), 3.309(a)). 38 C.F.R. § 3.303(d) (Post-service Diagnosis) Although hepatitis C was first documented in 1999, more than 20 years after service in 1977 and 1978, service connection may still be granted even though the disability was first diagnosed after service, after considering all the evidence, including that pertinent to service under 38 C.F.R. § 3.303(d). The Veteran as a lay person is competent to describe injections by an air gun in service. See 38 C.F.R. § 3.159 (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.); see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (Lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses). The Veteran as a lay person is also competent to identify a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, at 1377. Hepatitis C is not simple medical condition the Veteran is competent to identify, because the diagnosis falls outside the realm of common knowledge of a lay person, that is, the diagnosis cannot be made based on mere personal observation, which comes through sensory perception. And it is not argued or shown that the Veteran is otherwise qualified through specialized education, training, or experience to identify hepatitis C. Also hepatitis C is not a type of condition under case law that has been found to be capable of lay observation. See Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfeet are capable of lay observation); see McCartt v. West, 12 Vet. App. 164, 167 (1999) (a skin condition is capable of lay observation; see Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus is capable of lay observation); see Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); and see Jandreau, at 1377, n. 4 (a lay witness is capable of diagnosing a dislocated shoulder or a simple medical condition, for example a broken leg, but not, for example, a form of cancer). Applying the guidance of current case law, hepatitis C is more analogous to an internal disease process such as rheumatic fever than either flatfeet, a skin condition, tinnitus, varicose veins, a dislocated shoulder, or a broken leg. For this reason, hepatitis is not a type of condition under case law that has been found to be capable of lay observation. The Veteran, as a lay person, is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). As hepatitis C is not the type of condition that can be identified based on personal observation either as a simple medical condition under Jandreau, or by case law, any inference based on what is not personally observable cannot be competent lay evidence. And no factual foundation has been established to show that the Veteran is otherwise qualified through specialized education, training, or experience to offer an opinion on the causal relationship or nexus between hepatitis C and injections by air gun. For these reasons, the Veteran's lay opinion is not competent evidence of a causal relationship or nexus between hepatitis C and injections by air gun. Since the Veteran's lay opinion is not competent evidence, the lay opinion is excluded, that is, not admissible as evidence and cannot be considered as competent lay evidence favorable to claim. As the lay evidence is not admissible, the Board need not reach the credibility of the evidence. Except the Veteran as a lay person is competent to describe a contemporaneous medical diagnosis or symptoms that later support a diagnosis by a medical professional. Jandreau, at 1377. No medical professional had diagnosed hepatitis C before 1999 and no medical professional has attribute hepatitis C to injection by air gun in service. As the Veteran's lay evidence is not competent evidence on the material issues of fact, pertaining to onset in service or to initial post-service diagnosis, the Board looks to the medical evidence. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. The probative value or evidentiary weight to be attached to a medical opinion is within the Board's province as finder of fact. The guiding factors in evaluating the probative value of a medical opinion include whether the opinion is based upon sufficient facts, and whether the expert applied valid medical analysis to the significant facts of the case in order to reach the conclusion rendered in the opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-3 (2008). The medical evidence consists of the opinion of a VHA expert, who is qualified through education, training, or experience to diagnose and to offer a medical opinion. The VHA expert stated that there was no data that conclusively proves the possibility of transmission of the hepatitis C by air gun. And VA has acknowledged that while it is biologically plausible to transmit hepatitis C by air gun injection there is a lack of any scientific evidence to document transmission of hepatitis C by air gun injector. Veterans Benefits Administration (VBA), Fast Letter 04-13 (June 29, 2004) (there have been no case reports of HCV being transmitted by an air gun transmission.). The VHA expert, who specializes in liver diseases, and who reviewed the Veteran's medical history and literature, expressed the opinion that it was less likely (a probability less than 50 percent) that hepatitis C was related to inoculation by air gun during service. The VHA expert supported the conclusion reached in the opinion with a reasoned analysis. The opinion of the VHA expert is persuasive evidence, which opposes, rather than supports, the claim. There are no medical opinions to the contrary. There is no other competent evidence, lay or medical, that shows that hepatitis C is related to military service to include injections by air gun. On the basis of the evidence of record, the Board concludes that the preponderance of the evidence is against the claim of service connection. As the preponderance of the evidence is against the claim, the benefit-of-the doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER Service connection for hepatitis C is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs