Citation Nr: 1337732 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 10-17 592 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for hepatitis C. 2. Entitlement to service connection for right hand disability as secondary to hepatitis C. 3. Entitlement to service connection for a dental disability as secondary to hepatitis C. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Hubers, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1977 to June 1980. This case comes before the Board of Veterans' Appeals (Board) on appeal of April 2009 and September 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. FINDINGS OF FACT 1. The Veteran's hepatitis C was not manifest in active service; the Veteran's hepatitis C is not otherwise etiologically related to such service. 2. The Veteran's right hand disability is the result of a post-service injury and any aggravation or worsening is due to a non service-connected disability. 3. The Veteran's dental disability was not manifest during service and is the result of a non service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for hepatitis C have not been met. 38 U.S.C.A. § 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304 (2012). 2. The criteria for service connection for a right hand disability as secondary to hepatitis C have not been met. 38 U.S.C.A. § 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2012). 3. The criteria for service connection for dental disability, to include dental caries, periodontitis and replaceable missing teeth, as secondary to hepatitis C are not met. 38 U.S.C.A. § 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist When VA receives a complete or substantially complete application for benefits, it 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. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In the instant case, notice was provided to the Veteran in October 2008 and again in March 2009 prior to the initial adjudication of his claim for entitlement to service connection for hepatitis C in April 2009. Thereafter, notice was provided in May 2009, prior to the initial adjudication in September 2009, of his claims for entitlement to service connection for a right hand disability and for entitlement to service connection for a dental disability. His claim for entitlement to service connection for hepatitis C was also readjudicated in the September 2009 rating decision. The contents of the notice letters fully comply with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran was notified of the evidence not of record that was necessary to substantiate the claim, and was told that he needed to provide the names of the persons, agency, or company who had additional records to help decide his claim. He was also informed that VA would attempt to determine what additional information was needed to process his claim, and that VA would schedule a VA examination if appropriate, obtain VA medical records, obtain service records, and obtain private treatment reports as indicated. As the contents of the notice letters fully comply with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), the Board concludes that VA satisfied its duties to notify the Veteran. VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2012). VA's duty to assist includes assisting the claimant in the procurement of service and other relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO associated the Veteran's service treatment records, VA treatment records, and private treatment records with the claims file. The Veteran has not identified any treatment records aside from those that are already of record or that VA could not obtain because VA was informed by the Veteran's medical provider that treatment records no longer existed. See, e.g., January 2009 Memorandum from St. Alexius Hospital ("after a thorough search of our database, we have been unsuccessful in locating this patient in our Master Patient Index for the dates of service you are requesting"); May 2012 Note from Blackwell Regional Hospital (indicating "No Record of Patient"). The Veteran was informed in the 2012 SSOC of the inability to obtain these records. Thus, the Board concludes that VA has made every reasonable effort to obtain all records relevant to the Veteran's claim. The Board also finds that additional RO action to further develop the record in connection with the Veteran's claims is not warranted. While VA has not obtained an examination or medical nexus opinion in connection with the Veteran's claim that his hepatitis C infection occurred during or was the result of his active duty service, the medical and other evidence of record is sufficient to make a decision on that claim. Further, given the resolution below of the hepatitis C service-connection claim, a medical opinion with respect to the causal relationship, if any, between his hepatitis C and his other alleged disabilities is unnecessary to resolve the Veteran's secondary service-connection claims. As discussed more fully with respect to the merits of the Veteran's claim below, the current record is sufficient to make a determination regarding service connection with respect to each of the Veteran's claims, therefore VA has no obligation to obtain further medical examinations or opinions in connection with those claims. See 38 U.S.C.A. § 5103(A)(d); see also Wells v. Principi, 326 F.3d 1381, 1384 (Fed. Cir. 2003). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. II. Merits of the Claim Under 38 U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122, 128-29 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). In deciding the Veteran's claim, 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, 53-56 (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 the claimant. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1131; 38 C.F.R. § 3.303. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Further, where the veteran asserts entitlement to service connection for a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303(b) by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013). However, as hepatitis C is not listed as a chronic disease under 38 C.F.R. § 3.309(a), the provisions of 38 C.F.R. § 3.303(b) pertaining to continuity of symptomatology do not apply in the instant case. For disabilities that are not listed as chronic, under 38 C.F.R. § 3.309(a), the only avenue for service connection is by showing in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). See Walker, 708 F.3d at 1338-39. 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) (2012). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board is not required to accept an appellant's uncorroborated account of his active service experiences. Wood v. Derwinski, 1 Vet. App. 190 (1991). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter 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"). Hepatitis C The Veteran asserts entitlement to service connection for hepatitis C. There is no dispute that the Veteran suffered from hepatitis C when he filed his claim and that he was not diagnosed until many years after separating from the military. The Board notes that the available medical records and the Veteran's most recent statements indicate that he was first diagnosed with hepatitis C roughly twenty years after his active duty service. See, e.g., September 2008 Gastroenterology Note ("HCV since 2000"); August 2012 Statement of Representative ("The first report of a diagnosis of Hepatitis C was in 2000"). The Veteran has suggested at other times a diagnosis roughly ten years after service. See April 2009 Statement in Support of Claim ("aware of Hepatitis C infection for ten years prior to coming to VA in 2000"). The medical records do not support the Veteran's contention in that regard. However, the exact date of initial diagnosis is not determinative of any issue because there is no dispute that the Veteran's hepatitis C was first diagnosed many years after his service. In hepatitis C cases involving a post-service diagnosis, the evidence must show that the Veteran's hepatitis C infection, risk factor(s), or symptoms were incurred in or aggravated by service. The evidence must further show by competent medical evidence that there is a relationship between the claimed in-service event and the Veteran's current hepatitis C. Here, the Veteran argues that 1979 immunizations via a contaminated air gun injector caused his hepatitis C. He has not identified any other in-service risk factors. The Veteran's service treatment records verify that he did receive immunizations in 1979, but the question of whether the Veteran's hepatitis C was incurred in 1979 via a contaminated air gun injector rather than some other cause is medical in nature. The Board finds that, in this case, the etiology of the Veteran's hepatitis C may only be answered by medical evidence. Jandreau, 492 F.3d at 1376-77. In support of his theory of transmission by air gun injector, the Veteran relies on several pieces of evidence which will be addressed below. First, the Veteran has submitted as evidence an internet article for the purpose of establishing that "jet air guns" may harbor contaminated blood if improperly sterilized. See attachment to November 2009 Notice of Disagreement. While the Board may consider medical treatises, generic medical literature that does not apply medical principles regarding causation or etiology to the facts of an individual case is of doubtful usefulness. See Sacks v. West, 11 Vet. App. 314, 316-17 (1998). Moreover, the internet material submitted consists, in relevant part, of a statement from a Wikipedia article of uncertain authorship and reliability that was republished on Answers.com. The Board finds that the internet material, to the extent it is competent evidence of any relevant fact, has no probative value on the question of the etiology of this Veteran's hepatitis C. Second, the Veteran claims that the nurse practitioner who oversaw his hepatitis C treatment regimen indicated that genetic testing revealed that he was infected with hepatitis C in 1979. See March 2008 Statement in Support of Claim ("she could tell by the blood test that I contracted Hepatitis C 30 years ago. She stated that it stayed dormant in my system for 12 years."); April 2010 VA Form 9 ("my oncologist statement that my hepatitis was linked to my active military [service]...She was also able to date my hepatitis to 1979. The reference to my blood transfusion in 1981 also confirms my oncologist diagnosis because the genetic testing in establishes the 1979 date."). However, the medical record does not support this claim. While there are many entries in the Veteran's medical records by the nurse practitioner whom the Veteran identifies by name, there is no indication in any of those entries that she or anyone else was able to date onset of the Veteran's hepatitis C infection. See, e.g., December 2007 VA Gastroenterology Note (indicating Veteran was "[d]iagnosed with HCV in 2000" and had risk factors including a post-service blood transfusion, IVDU, and "airguns 1979"). The nurse practitioner identified by the Veteran did report results of genotyping to the Veteran, but that testing was accomplished for the purpose of determining the proper treatment of the disease, not the date of infection. See, e.g., December 2007 VA Gastroenterology Note ("47yo Chronic HCV Genotype 2b wants to start tx ASAP"). The Board has also considered whether the Veteran misidentified the individual he believes was able to date his hepatitis C to 1979, however, none of the other medical records contain any indication that the year in which the Veteran was infected could be determined by genetic or other testing. In fact, the Veteran's physicians have consistently identified the post-service blood transfusion as the most likely cause of the Veteran's hepatitis C. See, e.g., August 2006 VA Infectious Disease Nursing Note ("Only significant risk a transfusion in 1981."); June 2006 VA Infectious Disease Consult ("Primary risk is transfusion in 1981"); see also January 2007 Community Counseling and Assessment Services Neuropsychological Evaluation ("He contracted hepatitis C from a blood transfusion that he received prior to when donated blood was tested for this particular malady."). With respect to testing, the only testing reflected in the medical records either confirmed the diagnosis of hepatitis C or determined the genotype for purposes of determining appropriate treatment. See August 2006 VA Infectious Disease Nursing Note ("Discussed significance of 2b genotype in terms of efficacy and tx duration"). The Board recognizes that the Veteran is competent to report a diagnosis that is later confirmed by clinical findings or a contemporary diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, the Board finds that the Veteran is not a reliable historian with respect to his medical history and the etiological opinions of his treating physicians. The Veteran's contentions regarding genetic or other testing that dated his hepatitis C to 1979 are not credible and the Board affords those contentions no probative weight. See Caluza, 7 Vet. App. at 511. The final piece of evidence that the Veteran musters in support of his claim of in-service occurrence of hepatitis C via the 1979 immunizations is Veterans Benefits Administration Fast Letter 04-13 dated June 29, 2004. An examination of the evidence in the context of Fast Letter 04-13 reveals that, rather than supporting the claim, the Fast Letter 04-13 undercuts the Veteran's position. The first "Key Point" in Fast Letter 04-13 emphasizes that the highest prevalence of HCV (hepatitis C) infection is among those with repeated, direct percutaneous (through the skin) exposures to blood. As examples of this mode of transmission, Fast Letter 04-13 points to injection drug use and blood transfusions prior to 1992. The medical record contains conflicting indications of whether the Veteran did engage in intravenous drug use (IVDU). See September 2008 VA Gastroenterology Note (indicating IVDU at age twenty was a risk factor); but see June 2006 VA Infectious Disease Consult (noting that the Veteran denied IVDU and tattooing). However, the Board finds it unnecessary to resolve this inconsistency in the Veteran's reporting of prior IVDU, because the Veteran does not dispute receiving a post-military blood transfusion. See, e.g., April 2010 Form 9 ("my blood transfusion in 1981"); August 2012 Statement of Representative (conceding a post-service blood transfusion). The Board concludes, therefore, that the Veteran has at least one of the two risk factors identified in Fast Letter 04-13 as among the most common modes of transmission. The medical evidence in this case supports a finding that the Veteran's pre-1992 blood transfusion, which occurred after his active military service, is the most likely cause of the Veteran's hepatitis C. See August 2006 VA Infectious Disease Nursing Note ("Only significant risk a transfusion in 1981."); June 2006 VA Infectious Disease Consult ("Primary risk is transfusion in 1981 as he denies IVDU or tatooing [sic]."); January 2007 Community Counseling and Assessment Services Neuropsychological Evaluation ("He contracted hepatitis C from a blood transfusion that he received prior to when donated blood was tested for this particular malady."); see also, e.g., VBA Fast Letter 04-13 (June 29, 2004) ("The large majority of HCV infections can be accounted for by known modes of transmission, primarily transfusion of blood products before 1992, and injection drug use."). Therefore, Fast Letter 04-13 is not only consistent with the conclusions of the Veteran's physicians that a post-service blood transfusion is the most likely source of the Veteran's hepatitis C, it bolsters those opinions. With respect to the competing theory advocated by the Veteran, the Veteran admits the suggested link between his hepatitis C and the 1979 immunizations has very little support. See August 2012 Statement of Representative (conceding there is no scientific evidence linking the Veteran's hepatitis C to air gun injectors); VBA Fast Letter 04-13 (June 29, 2004) (noting "the lack of any scientific evidence to document transmission of HCV with airgun injectors"). Thus, while it is hypothetically possible for air gun injectors to transmit the hepatitis C virus, there is no scientific evidence of record that such injections ever have transmitted the virus. More pertinently, the medical evidence in this case, including the Fast Letter submitted by the Veteran, weighs heavily against a finding that transmission via contaminated air gun injector was, at least as likely as not, the mode of transmission of hepatitis C to this Veteran. The more probative evidence establishes that it is more likely than not that the Veteran was infected by hepatitis C via a post-service blood transfusion. The Board concludes, therefore, that it is not at least as likely as not that the Veteran was infected with hepatitis C during service. Accordingly, for the reasons detailed above, entitlement to service connection for hepatitis C is denied. The evidence is not in equipoise and, therefore, the benefit-of-the-doubt rule does not apply. Gilbert, 1 Vet. App. at 53-56. Right Hand Disability as Secondary to Hepatitis C The Veteran also asserts entitlement to service connection for a right hand disability as secondary to hepatitis C. The record establishes, and the Veteran does not contest, that the initial hand injury was the result of a post-service oil drilling accident after service. See, e.g., April 2010 Form 9 ("Hand was injured in 1981, but did not heal properly due to Hepatitis-C."); May 2006 VA Psychiatry Consult (recounting an oil drilling accident after service that resulted in a right hand injury). Therefore, there is neither evidence to support nor any contention of direct service connection for the Veteran's right hand disability. As a result, the Veteran's claim of service connection for a right hand disability depends on secondary service connection as related to hepatitis C. In the context of claims for secondary service connection, the evidence must demonstrate an etiological relationship between the service-connected disability or disabilities on the one hand and the condition said to be proximately due to the service-connected disability or disabilities on the other. Buckley v. West, 12 Vet. App. 76, 84 (1998). Secondary service connection may also be warranted for a non-service-connected disability when that disability is aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Also, with regard to a claim for secondary service connection, the record must contain competent evidence that the secondary disability was caused by the service-connected disability. See Wallin v. West, 11 Vet. App. 509 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). A prerequisite, then, of a claim for secondary service connection is a service-connected disability. 38 C.F.R. § 3.310. Service connection for hepatitis C is not currently in effect and is not being granted in this decision. Therefore, even if the Board found, as the Veteran claims, that his right hand disability was either caused or worsened by his hepatitis C infection, the Veteran would not be entitled to service connection for a right hand disability as secondary to hepatitis C. As service connection for hepatitis C is not established, there is no basis for a grant of service connection for a right hand disability secondary to hepatitis C. 38 C.F.R. § 3.310. Entitlement to service connection for residuals, right hand injury, as secondary to hepatitis C is denied. Dental Disability as Secondary to Hepatitis C The Veteran also claims entitlement to service connection for a dental disability as secondary to hepatitis C. The elements of a secondary service connection claim have already been set forth above, but the Board will reiterate that a claim for secondary service connection requires the existence of a service-connected disability. 38 C.F.R. § 3.310. The Veteran claims that his hepatitis C required treatment with interferon and that the interferon caused an acceleration of his tooth decay resulting in carious teeth, periodontitis, and the need for removal of all of his teeth. See, e.g., April 2010 Form 9 ("The interferon treatment...stripped the enamel from my teeth which [accelerated] my tooth decay. I am currently scheduled to have all of my teeth removed."); August 2012 Statement of Representative in lieu of Form 656 ("claimant was treated for dental carries and periodontitis due to a prescription of interferon for his Hepatitis C"). The Board need not address the accuracy of the Veteran's theory that hepatitis C is, indirectly, the cause of his dental problems, because service connection for hepatitis C is not currently in effect and is not being granted in this decision. Therefore, even if the Board found that treatment for hepatitis C either caused or worsened the Veteran's dental disability, the Veteran would not be entitled to service connection for a dental disability as secondary to hepatitis C. As service connection for hepatitis C is not established, there is no basis for a grant of service connection for a dental disability secondary to hepatitis C. 38 C.F.R. § 3.310. Entitlement to service connection for a dental condition as secondary to hepatitis C is denied. ORDER 1. Entitlement to service connection for hepatitis C is denied. 2. Entitlement to service connection for residuals, right hand injury as secondary to hepatitis C is denied. 3. Entitlement to service connection for a dental condition as secondary to hepatitis C is denied. ______________________________________________ MICHELLE KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs