Citation Nr: 1336892 Decision Date: 11/13/13 Archive Date: 11/26/13 DOCKET NO. 10-36 802 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Veteran represented by: Calvin Hansen, Attorney ATTORNEY FOR THE BOARD Aaron Bill, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1964 to November 1967, June 1976 to May 1979, and February 1981 to June 1983. This matter is on appeal from the Lincoln, Nebraska, Department of Veterans Affairs (VA) Regional Office (RO). This case was remanded by the Board in January 2013 for further development and is now ready for disposition. In reviewing this case, the Board has not only reviewed the Veteran's physical claims file, but also the file on the electronic Virtual VA and VBMS system to ensure a total review of the evidence. FINDING OF FACT Hepatitis C was not incurred in service but rather was the result of post-service high risk activities. CONCLUSION OF LAW Hepatitis C was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION 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, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. Absent a diagnosis of a chronic disease as defined in 38 C.F.R. § 3.309(a), service connection may not be awarded based on continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Hepatitis C is not among those chronic diseases specified in 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) do not apply. In this case, the evidence must show that the Veteran's hepatitis C infection, risk factors, or symptoms were incurred in or aggravated by service. 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. See VBA 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; nnevertheless, 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 a 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"). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran contends that his currently-diagnosed hepatitis C is related to tattoos he received in service. The service treatment records (STRs) reveal no treatment or symptoms reasonably attributed to hepatitis C. His in-service treatment was related to alcohol abuse and the record does not show any treatment sought for either hepatitis C or symptoms related to hepatitis C. Additionally, the separation examination from his last period of service shows a normal clinical evaluation. Therefore, neither hepatitis C nor symptoms attributed to hepatitis C were noted in the in-service medical records. Post-service, the Veteran reported that he was diagnosed with hepatitis C in 1993 when he was told he tested positive after donating blood. The first recorded reference to hepatitis C was listed as a past medical history in September 2000. Even assuming that he tested positive as early as 1993, by his own statements, he was not experiencing symptoms related to hepatitis C; rather, it was identified as part of routine blood screening. Therefore, the record also does not contain evidence of unremitting symptoms of hepatitis C after service. The threshold inquiry is whether hepatitis C is related to any incident in service. Of note, the Veteran has reported, and the evidence supports, that he received several tattoos in service. Percutaneous exposure such as tattoos is listed as a risk factor. However, he also admittedly engaged in multiple at-risk activities after service, including a long history of IV drug abuse, sharing needles with other heroine users, intranasal cocaine use, and high-risk sexual activity in terms of unprotected sex with multiple partners. In order to determine whether the Veteran's hepatitis C was due to in-service or post-service exposures, he underwent two VA examinations. Specifically, at an April 2010 VA examination, after consideration of the reported history and a review of the file, the examiner stated he could not resolve the issue without resorting to mere speculation because "as there is no specific test to determine the actual source of the Veteran's hepatitis C, I cannot resolve this issue without resorting to mere speculation." In January 2013, the Board remanded the claim for an addendum opinion. In April 2013, the Veteran underwent another examination by a different examiner. The examiner interviewed the Veteran and noted that the Veteran had received numerous tattoos while in service, some while in China, he had a history of IV drug usage for approximately 23 years after separation from service, intranasal cocaine usage after separation from service, and he engaged in high risk sexual activities, notably reporting 70 - 75 sexual partners with unprotected intercourse. The VA examiner reviewed the claims file and determined that hepatitis C was less likely than not related to the Veteran's time in service. He indicated that this determination wass due to a number of factors and cited both evidence from the claims file as well as supporting treatise evidence. The VA examiner supported his opinion on the fact that based upon the blood work performed in August 1985, 26 months after separation from service, at a VA Medical Center showed that "the Veteran's (liver function tests) SGOT-25, SGPT-37 and GGT-40 were all [within normal limits]." The examiner added a citation regarding hepatitis C and its incubation period and its possible relationship to the Veteran's time in service opining: Given the average incubation period is seven weeks, (4-20) from time of blood infection to symptomatology, which may be just increased levels of liver function tests (usually elevated transaminases) . . . this puts the Veteran to 'most probable' [to] have been infected with hepatitis C, (at best) sometime after early summer of 1985 based on the incubation period as stated below for this examiners rationale. In addition, risk factors for blood-borne pathogens as supported by the medical literature is greater for large bore (hollow) needles. These types of needles carrying larger blood volumes (greater titers of virus), thus increase infectivity rates. Whereas 'tattoo' needles are (non-hollow) bore needles, thus carry less blood or viral load. This rationale was supported by a medical treatise cited by the VA examiner that considered both chronic and acute hepatitis C infections and symptoms in its analysis of the disease. See Jay H. Hoofnagle, Hepatitis C: The Clinical Spectrum of Disease, 26 HEPATOLOGY 15S, (1997). As for the other risk factors present in the records, the Veteran indicated in both VA treatment records and at his VA examinations that he had used IV drugs, intranasal cocaine, had received tattoos, and had participated in high risk sexual activities. While tattoos and high risk sexual activities are two of the enumerated risk factors for contracting hepatitis C, the April 2013 VA examiner's rationale addressed these issues directly and he opined that it was more likely the post-service IV drug, intranasal cocaine and needle sharing that led to the Veteran's hepatitis C diagnosis in 1993, 10 years after separation from service. The Board finds that the examination was adequate for evaluation purposes. Specifically, the examiner reviewed the claims file, interviewed the Veteran, and conducted a physical examination. There is no indication that the VA examiner was not fully aware of the Veteran's past medical history or that he misstated any relevant fact. The examiner provided a thorough analysis and discussion of the Veteran's symptoms, risk factors, the average incubation period for the disease, and the Veteran's post-service test results indicating no abnormal liver functioning. Moreover, the examiner has the requisite medical expertise to render a medical opinion regarding the etiology of the disorder and had sufficient facts and data on which to base the conclusion. Further, there is no contradicting medical evidence of record. Therefore, the Board finds the VA examiner's opinion to be of great probative value. The Board has considered the Veteran's statements that hepatitis C was caused by in-service tattoos. While the Board reiterates that he is competent to report symptoms as they come to him through his senses, hepatitis C is not the type of disorder that a lay person can provide competent evidence on questions of etiology or diagnosis. Such competent evidence has been provided by the medical personnel who have examined the Veteran during the current appeal and by service records obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. See Cartright, 2 Vet. App. at 25. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). When VCAA notice is delinquent or erroneous, the "rule of prejudicial error" applies. See 38 U.S.C.A. § 7261(b)(2) (West 2002). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in March 2010 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. With respect to the Dingess requirements, in March 2010, the RO provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. With that letter, the RO effectively satisfied the remaining notice requirements with respect to the issue on appeal. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). In determining whether a medical examination be provided or medical opinion obtained, there are four factors to consider: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing an in-service event, injury, or disease, or manifestations during the presumptive period; (3) an indication that the disability or symptoms may be associated with service; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. With respect to the third factor, the types of evidence that "indicate" that a current disorder "may be associated" with service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). After a careful review of the file, 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). First, service treatment records, post-service VA treatment records, a VA examination report, and the Veteran's written assertions regarding his claim are all associated with the claims file. In addition, the Veteran was afforded a VA examination in April 2010 and again in April 2013. The April 2013 examination contained a detailed medical opinion based upon a review of the evidence available, an in-person interview with the Veteran, and an in-person physical examination. The examination and opinion were adequate because each was performed by a medical professional based on acknowledged review of claims file and/or solicitation of history and symptomatology from the Veteran. Moreover, the opinion was explained and was consistent with the examination results and the record. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008). Therefore, the available records and medical evidence have been obtained in order to make an adequate determination as to this claim. Significantly, neither the Veteran nor his attorney have 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 is required to fulfill VA's duty to assist 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). ORDER Service connection for hepatitis C is denied. ______________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs