Citation Nr: 1336156 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 06-08 552 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York THE ISSUES 1. Entitlement to service connection for hepatitis B. 2. Entitlement to service connection for hepatitis C. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Aaron Bill, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from September 1970 to July 1972. This appeal comes to the Board of Veterans' Appeals (Board) from a May 2005 rating decision. In August 2006, and again in September 2008, the Veteran testified before a Veterans Law Judge at a Board hearing in New York, New York. The Veterans Law Judge who held these hearings has since retired and the Veteran stated in July 2013 that she wishes for the case to be decided on the evidence of record and to not testify at a hearing in front of a new Veterans Law Judge. In the May 2013 supplemental statement of the case (SSOC), the RO made a clerical error referring to the evidence of record for the Veteran. The RO erred in referring to a Board remand, treatment reports, and VA examination reports that are not associated with the Veteran; however, it is a valid SSOC because, despite the clerical error in the recitation of the evidence considered, the RO reviewed, considered, and referred to the additional evidence submitted by the Veteran in July 2012 pertaining to a new theory of the case. For this reason, the SSOC, as issued, is valid. In reviewing this case, the Board has not only reviewed the Veteran's physical claims file, but also the file on the "Virtual VA" system to ensure a total review of the evidence. FINDINGS OF FACT 1. The Veteran's current chronic hepatitis B did not start in service. 2. The Veteran was not exposed to risk factors associated with hepatitis B during service. 3. The Veteran does not have a current disability of hepatitis C. 4. The Veteran experienced none of the enumerated hepatitis C risk factors in service. CONCLUSIONS OF LAW 1. The criteria for service connection for hepatitis B have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). 2. The criteria for service connection for hepatitis C have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay 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); 38 C.F.R. § 3.159(b). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between a 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, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). A February 2005 letter explained the evidence necessary to substantiate the claim, the evidence VA was responsible for providing, and the evidence the Veteran was responsible for providing. This letter also informed the Veteran of disability rating and effective date criteria. The Veteran has had ample opportunity to respond and supplement the record. With regard to the duty to assist, service treatment records, VA examination reports and both VA and private post-service treatment records have been secured. For reasons discussed in detail below, the Board finds the August 2009 VA digestive conditions examination to be adequate. The opinion was provided by a qualified medical professional and was predicated on a full reading of all available records. The examiner also provided a detailed rationale for the opinion rendered. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Neither the Veteran nor the representative has challenged the adequacy of the examination obtained. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may 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). The conditions of hepatitis B and hepatitis C are not "chronic disease[s]" listed under 38 C.F.R. § 3.309(a) (2012); therefore, the presumptive service connection provisions of 38 C.F.R. § 3.303(b) do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The recognized risk factors for contracting hepatitis C are IV drug use, blood transfusions before 1992, hemodialysis, intranasal cocaine use, 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, and shared toothbrushes or razor blades. See VBA Fast Letter 211B (98-110) (November 30, 1998). According to VA Fast Letter 04-13 (June 29, 2004), hepatitis C is spread primarily by contact with blood and blood products. The highest prevalence of hepatitis C infection is among those with repeated, direct percutaneous (through the skin) exposures to blood (e.g., injection drug users, recipients of blood transfusions before screening of the blood supply began in 1992, and people with hemophilia who were treated with clotting factor concentrates before 1987). The Fast Letter further states that occupational exposure to hepatitis C may occur in the health care setting through accidental needle sticks. Thus, a veteran may have been exposed to hepatitis C during the course of his or her duties as a military corpsman, a medical worker, or as a consequence of being a combat veteran. According to the Fast Letter, there have been no case reports of hepatitis C being transmitted by an air gun injection. Nevertheless, it is biologically plausible. The Fast Letter concludes that it is essential that the examination report upon which the determination of service connection is made include a full discussion of all modes of transmission, and a rationale as to why the examiner believes the a particular mode of transmission was the source of the veteran's hepatitis C. In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence where appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Service Connection for hepatitis B The Veteran contends that the currently diagnosed chronic hepatitis B began in service and has had the same symptoms since service separation. She also contends that she went to sick call at Plattsburgh Air Force Base in Plattsburgh, New York, and was misdiagnosed by the medical officer as being pregnant, believing the symptoms she experienced related to pregnancy were actually related to hepatitis B. Then, in a January 2012 letter, the Veteran also stated that she came in contact with hepatitis B and hepatitis C when giving blood after she was "exposed to dirty needles." The Veteran claimed the nurse told her she was using dirty needles for the blood donation procedure and this was how she contracted hepatitis B initially. Finally, the Veteran submitted a statement relating her currently diagnosed hepatitis B to in-service military sexual trauma (MST). The service treatment records (STRs) show that in May 1972 the Veteran tested positive for hepatitis associated antigen (HAA) while giving blood; however, the Veteran did not test positive for hepatitis B at that time. At service separation in July 1972, the examination report listed numerous notes regarding treatment sought and received in service, as well as diagnosed disorders. Specifically of note, hepatitis B is not listed on the service separation examination report as a current diagnosis or as an issue for which the Veteran sought treatment during service. This evidence is particularly probative because it shows a lack of an in-service occurrence of hepatitis B or symptoms attributable to hepatitis B. The Veteran's STRs are indicative of numerous trips made during the time in service to receive treatment for various symptoms and conditions, not including hepatitis B. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Almost immediately after entrance into service, the Veteran was seen in November 1970 for a variety of symptoms. The medical officer diagnosed mittelschmerz and trichomonas vaginalis due to the symptoms reported and prescribed antibiotics at a follow-up gynecological examination in December 1970, at which point the trichomonas vaginalis diagnosis was confirmed, but there was no mention of hepatitis B. Id. In August 1971, the Veteran was again seen for similar reported symptoms as November 1970, and was again diagnosed with trichomonas vaginalis. Then, in October 1971, she was given a pregnancy test which returned a positive result. It is noted that the STRs are complete and thorough and hepatitis B is the kind of disorder that, had the Veteran sought treatment, would have been recorded in the STRs since they are contemporaneous and attribute the Veteran's symptoms to other medical issues. The STRs reveal numerous treatments received by the Veteran while in service, none related directly to hepatitis B, but with symptoms similar to those associated with hepatitis B, though contributable to her other, in-service, diagnosed problems. In support of her claim, the Veteran submitted a statement received in January 2012. She reports that there "were no sign[s] of hep B or hep C" when blood work was done at Lackland Air Force Base in San Antonio, Texas. The Veteran indicated she tested HAA positive once she arrived at Plattsburgh. The STRs are absent for any diagnosis of hepatitis B or in-service treatment sought due to symptoms attributable to hepatitis B. This evidence weighs strongly against her credibility because the evidence supports a showing that she was pregnant, had experienced symptoms of other diagnosed illnesses, and there was never any mention of hepatitis B during any in-service medical treatment sessions with all of the symptoms claimed attributable to the other causes and not due to hepatitis B. Therefore, the STRs are afforded greater probative weight than the Veteran's lay statements due to their thoroughness and attribution of symptoms to other diagnosed illnesses, the Veteran's internal inconsistencies in her statements (e.g., the Veteran's inconsistent testimony about in-service and post service diagnoses of hepatitis B, her numerous theories asserted regarding the etiology of her hepatitis B) and the inconsistencies between her statements and the medical evidence of record (e.g., the Veteran's assertion that she was not pregnant though she had a positive pregnancy test in October 1971). According to VBA Fast Letter 211B (98-110) (November 30, 1998), risk factors for hepatitis B are similar to those for hepatitis C and include having close personal contact with a person who is infected, being an intravenous (IV) drug user, hemophiliac, hemodialysis patient, healthcare and dental care worker, blood product worker, baby born to an infected mother, people who received blood products or transfusions before 1975, and people who engage in high-risk sexual practices. Hepatitis B infections can also be spread by tattooing, body piercing, or sharing razors and toothbrushes. Importantly, in this case, during an August 2009VA examination, the Veteran denied any tattoos, high risk sexual activity, IV drug abuse or blood transfusions during her time in service. Notably absent from the risk factors associated with hepatitis B reported by the Veteran is blood donation, and specifically, exposure to dirty needles. The VA examiner from the August 2009 VA examination stated that she "could not find enough evidence to support the Veteran's contention that [she] was exposed to dirty needles." This evidence tends to show that none of the hepatitis B risk factors apply to the Veteran because the credible medical and lay evidence does not demonstrate the occurrence of such risk factors in service.. The Veteran's contention that medical personnel used dirty needles while performing medical procedures, such as drawing blood, goes directly against the presumption of administrative regularity. There is a presumption that clean, sterile needles would be used for all procedures and there would be no reuse from individual to individual. "There is a presumption of regularity under which it is presumed that government officials 'have properly discharged their official duties.'" Ashley v. Derwinski, 2 Vet. App. 307, 308 (1992) (quoting United States v. Chem. Found., Inc., 272 U.S. 1; 14-15, 47 S.Ct. 1; 71 L.Ed. 131 (1926)). The Veteran would have to show clear evidence to the contrary in order to rebut the presumption, and she has not done so in this case. It is presumed that medical staff are trained in good medical practices that include the sanitary handling of needles, will use clean needles for medical procedures, and will not reuse needles for multiple medical procedures. Therefore, the Veteran's bare assertions alone of a nurse using a dirty needle when drawing blood without any supporting evidence, no actual evidence of an irregularity, no indicia of irregularity, and the complete STRs showing the symptoms that the Veteran relates to hepatitis B being indicative of the other diagnoses in service, are not enough to rebut the presumption that clean needles were used. Additionally, the examiner opined that hepatitis B was less likely as not related to service because there was no medical or lay evidence in the record to support the Veteran's assertion that she was exposed to dirty needles while giving blood. Also, as noted above, donating blood is not a risk factor for contracting hepatitis B. The August 2009 VA examiner then offered an addendum opinion in November 2009 which stated that, while the Veteran did test positive for HAA when giving blood in service, the best the examiner could surmise was that the Veteran was, at the time, exposed to hepatitis and developed the antigen for it, not that she had contracted hepatitis B. The VA examination report is given greater probative weight than the Veteran's lay statements because it is based upon a thorough review of the Veteran's medical history, treatment records, and reported symptoms, as well as the medical tests conducted at the August 2009 examination, which all weigh against a finding of an in-service occurrence of hepatitis B. This opinion weighs against a nexus between the Veteran's currently diagnosed chronic hepatitis B and service because, while she currently has this diagnosis, its onset was not during her period of active service, and she did not seek treatment for symptoms specific to hepatitis B. The Veteran then submitted a supplemental claim form in July 2012 asserting an alternative theory to entitlement for both hepatitis B and hepatitis C under MST. This contention was considered in the May 2013 SSOC, at which point the RO expressed that MST is not a known risk factor for hepatitis. The RO requested that the Veteran submit additional evidence to support the contention of MST with regard to hepatitis. After the SSOC was produced, the Veteran submitted a statement in May 2013 saying that she did not send "a statement saying that I claimed I got hep B & C from sexual trauma." This inconsistency of the Veteran's statements reduce her credibility when submitting lay evidence, and the Board affords it less probative weight than the credible medical evidence showing no in-service diagnosis of hepatitis B or treatment of symptoms specific to hepatitis B in service. MST is not a known risk factor for hepatitis, and there was also no in-service diagnosis of hepatitis B or treatment of symptoms specific to hepatitis B while in service. Additionally, because the Veteran withdrew this alternative theory to entitlement for service-connected hepatitis B in a May 2013 statement, the theory is moot, and need not be adjudicated. Finally, of note, the Veteran testified at Board hearings in both August 2006 and September 2008. During the September 2008 hearing, she stated that, after she was tested in service, she was told that she had no markers for, or any problems with, hepatitis. At the August 2006 Board hearing, she testified that she was told by the Air Force in a letter that she had contracted hepatitis B; later in her testimony, however, she stated that the Air Force recanted on that opinion and informed her that she did not, in fact, have hepatitis B. In order to properly consider this evidence, the Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). Given the internal inconsistency with the Veteran's testimony about her diagnosis of hepatitis B, and evidence that shows no in-service occurrence of hepatitis B, and her positive in-service pregnancy test, which accounts for the symptoms claimed to be hepatitis B, the Board finds her to be less credible than the other evidence of record, and her testimony and lay statements about an in-service occurrence of hepatitis B will be afforded less probative weight. In summary, the weight of the competent and credible evidence is against the Veteran's claim and service connection for hepatitis B must be denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine cannot be applied since there is no approximate balance of the evidence for and against the claim. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Service Connection for hepatitis C The Veteran contends that she has a current diagnosis of hepatitis C and that this diagnosis is related to her period of service. After a review of all the evidence, the Board finds that the weight of the competent and credible evidence establishes that the Veteran does not have hepatitis C, and did not experience any hepatitis C risk factors during service. A review of the service treatment records, VA treatment records, and VA examination reports shows that the Veteran does not have a diagnosis of hepatitis C and did not positively report experiencing any of the hepatitis C risk factors during her time in service, nor symptoms related specifically to hepatitis C. Additionally, while the Veteran has admitted to cocaine usage after service, specifically in an October 2003 VA treatment record, this usage was many years after service separation and has not contributed to a positive, current hepatitis C diagnosis. During the August 2009 VA examination, it was noted by the examiner that the Veteran's hepatitis C antibody was negative, which is consistent with the STRs and post-service treatment records which show no diagnosis of hepatitis C or symptoms related to hepatitis C during or since service. The Veteran testified at the Board hearing in August 2006 that she was told by a private physician, Dr. S.L., that she did not "have the full blown disease...just the markers" concerning hepatitis C. While the Veteran is competent to report observable symptoms and is competent to report what she was told by Dr. S.L., she is not competent to render a clinical diagnosis of hepatitis C without the requisite medical training and expertise and the record does not support a showing that Dr. S.L. reported a diagnosis of hepatitis C to the Veteran. See Kahana, 24 Vet. App. at 435. As a lay person, the Veteran is competent to relate some symptoms that may be associated with hepatitis C, but she does not have the requisite medical knowledge, training, or experience to be able to diagnose the medically complex disorder of hepatitis C, partially due to the nature of hepatitis C symptoms not being observable by the senses. See Kahana at 437; see also Jandreau, 492 F.3d 1372. Hepatitis C is a medically complex disease process because of its multiple etiologies, requires specialized testing required to diagnose (e.g. blood testing), and manifest symptomatology that overlaps with other disorders, such as her currently diagnosed hepatitis B disorder. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The Veteran similarly does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of the medically complex disorder of hepatitis C. See Kahana at 437. The Veteran also testified that she was told by Dr. S.L. that she had a higher risk of contracting hepatitis C due to her currently diagnosed hepatitis B; while this evidence is probative showing a higher risk of contracting the disease, even with Dr. S.L.'s supporting opinion, hepatitis C was not diagnosed during her time in service, nor were symptoms related to hepatitis C reported, at any time, and she does not have a current diagnosis of hepatitis C for any period during the current claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). Importantly as well, the Court has indicated that, in the absence of proof of a present disability, there can be no valid claim for service connection. An appellant's belief that he or she is entitled to some sort of benefit simply because he or she had a disease or injury while on active service is mistaken, as Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992). In summary, the weight of the competent and credible evidence is against the Veteran's claim, and service connection for hepatitis C must be denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine cannot be applied since there is no approximate balance of the evidence for and against the claim. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for hepatitis B is denied. Service connection for hepatitis C is denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs