Citation Nr: 1342897 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 12-07 962 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Entitlement to service connection for hepatitis C. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Zobrist, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1974 to June 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A notice of disagreement was received in November 2011, a statement of the case was issued in February 2012, and a substantive appeal was received in March 2012. The Veteran testified at a Board hearing in December 2012. FINDING OF FACT Hepatitis C was not manifested during the Veteran's active duty service or for many years thereafter, nor is hepatitis C otherwise related to such service, to include inoculations by air gun. CONCLUSION OF LAW Hepatitis C was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1131, 1154(b), 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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). Duty to Notify Upon receipt of a complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, what information and evidence VA will obtain, and what information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 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 notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). This matter was filed as a fully developed claim (FDC) pursuant to Secretary of Veterans Affairs Eric K. Shinseki's program to expedite VA claims. The notice that accompanies the FDC form informs the Veteran of what evidence is required to substantiate a claim for service connection and of the Veteran's and VA's respective duties for obtaining evidence. The notice also provides information on how VA assigns disability ratings in the event that service connection is established. See VA Form 21-526EZ. Thus, the notice that is part of the FDC form submitted by the Veteran satisfies the VCAA duty to notify. However, due to the nature of this claim, the RO also provided the appellant with proper notice by letter dated in April 2011. This notice complied with the specificity requirements of Dingess, identifying the five elements of a service connection claim, and Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (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). Duty to Assist Furthermore, the Board finds that there has been compliance with the assistance provisions set forth in the law and regulations. The Veteran was given the opportunity to testify at a hearing before a Veterans Law Judge in December 2012. The RO has also obtained the Veteran's service treatment records (STRs) and those private treatment records submitted as part of the FDC process. The Veteran has not identified any other pertinent records for the RO to obtain on his behalf. Further, VA has conducted necessary medical inquiry in an effort to substantiate the claim. 38 U.S.C.A. § 5103A(d). The Veteran was afforded a VA medical examination in August 2012. As the examination report and medical opinion contains the Veteran's medical history, findings, and opinion with rationale to support the conclusion reached, the Board finds that the report is adequate to decide the claim. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (a medical opinion must be based on consideration of the veteran's prior medical history and examinations and also describe the disability, if any, in sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one). All known and available records have been obtained and associated with the Veteran's claims file. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide these matters and that no further development of the evidentiary record is necessary. VA has complied with the notice and assistance requirements, and the Veteran is not prejudiced by a decision on the claim at this time. Analysis The Veteran claims entitlement to service connection for hepatitis C based on air gun inoculations in service. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury or disease in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 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). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 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. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). 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, supra. A veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived, that is, experienced, were directly through the senses. 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); Layno, 6 Vet. App. at 469-71 (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; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness, but lay testimony is not competent to prove a particular injury or illness); see Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Also, a 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) (citing Jandreau). VA must consider the competency of the lay evidence and cannot outright reject such evidence on the basis that such evidence can never establish a medical diagnosis or nexus; however, this does not mean that lay evidence is necessarily always sufficient to identify a medical diagnosis, but rather only that it is sufficient in those cases where the lay person is competent and does not otherwise require specialized medical training and expertise to do so, i.e., the Board must determine whether the claimed disability is a type of disability for which a layperson is competent to provide etiology or nexus evidence. See Davidson, 581 F. 3d at 1316 (recognizing that, under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when a lay person is competent to identify the medical condition; he is reporting a contemporaneous medical diagnosis; or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). The Board notes that it has reviewed all of the evidence in the Veteran's claims file and in "Virtual VA" (VA's electronic data storage system), with an emphasis on the evidence relevant to the matters on 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) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Several risk factors for hepatitis C have been recognized by VA. These include: transfusion of blood or blood product before 1992, organ transplant before 1992, hemodialysis, tattoos, body piercing, intravenous drug use (from shared instruments), high-risk sexual activity, intranasal cocaine (from shared instruments), accidental exposure to blood products as a health care worker, combat medic, or corpsman by percutaneous (through the skin) exposure or mucous membrane exposure, and other direct percutaneous exposure to blood such as by acupuncture with non-sterile needles or the sharing of toothbrushes or shaving razors. VA Training Letter 01-02 (April 17, 2001); VA Training Letter 98-110 (November 30, 1998). VA Fast Letter 04-13 (June 29, 2004) concluded that, although transmission with air gun injectors is biologically possible, there is no scientific evidence documenting such transmission and that the large majority of hepatitis C infections can be accounted for by known modes of transmission, primarily transfusion of blood products before 1992 and injection drug use. The Veteran's private treatment records document a reactive hepatitis C antibody test in December 2003 with subsequent diagnosis of, and treatment for, hepatitis C. As he has a current disability, the remaining question is whether there is evidence of an in-service occurrence of an injury or disease and evidence of a nexus or relationship between the current disability and the in-service disease or injury. His STRs are negative for any symptoms of or treatment for hepatitis C or any of the risk factors noted above during service. He provided a statement in March 2012 that included quoted excerpts from Congressional testimony regarding high rates of hepatitis C infections in veterans and a quotation from R. D., D. D. S., regarding the air gun vaccination process. The Veteran described his own vaccination process, stating that the vaccinations were not performed by medical personnel, that the shots caused significant bleedings, and that the air guns were never cleaned off between inoculations. He included copies of Board decisions granting service connection for hepatitis C to other veterans. In his March 2012 statement, the Veteran acknowledged obtaining two tattoos postservice, but asserted that the tattoo shop was not the source of his infection. He has provided for the record a letter from F. S., who states that he was with the Veteran when the tattoos were obtained, that the shop was clean and the instruments sterilized, that he also received tattoos on those occasions, that he does not have hepatitis C, that he knows many people who also received tattoos at that shop, none of whom have contracted hepatitis C. He has also provided a letter from his treating physician, A. M. F., M.D., who described the severity of the Veteran's current disability. The Veteran was afforded a VA medical examination in August 2012. The examiner reviewed the claims file, to include the statement from F. S., the copies of prior Board decisions regarding other veterans, VBA Fast Letter 04-13, and the Veteran's statement regarding his air gun vaccinations in service. The examiner noted that risk factors for hepatitis C were unknown. After considering the claims file and examining the Veteran, the examiner opined that hepatitis C was less likely than not related to the air gun inoculations and that no nexus to service could be established. The examiner stated that "Air gun inoculations is [sic] not a proven route of HCV transmission" and that the Veteran "could have contracted Hepatitis C many years after leaving" service. The examiner further stated that if the Veteran had contracted hepatitis C from air gun inoculations, "there would be LARGE cohorts of veterans with Hep C infections from one location. These large cohorts of veterans with Hep C from one location (within a specific time frame) have not been identified." At the December 2012 Board hearing, the Veteran reiterated that he was diagnosed with hepatitis C in 2003 and that the service members performing the inoculations were not trained medical personnel. The Board acknowledges the Veteran's contention that the air gun inoculation process was unsanitary and, thus, as he lacks any other risk factors, the likely source of his hepatitis C infection. While he is competent to report the inoculation process he observed, the Board finds that he has not demonstrated that he has the necessary medical training and expertise to opine as to the etiology of his hepatitis C. In contrast, the Board finds that the VA examiner's opinion, noting that transmission by air gun would result in multiple infections traceable to a particular location within a specific time frame (not an isolated incident, as alleged by the Veteran), is highly probative evidence weighing against the Veteran's claim. The Board also acknowledges the copies of prior Board decisions submitted by the Veteran. However, it must be stressed that Board decisions do not have binding precedential value and each appeal before the Board must be considered under the particular facts of each case. 38 C.F.R. § 20.1303 (2013). Furthermore, the cited Congressional testimony refers to hepatitis C infection rates within the Veteran population but does not addressed etiology, and is, thus, not probative evidence in support of the Veteran's claim. Likewise, the quotation from R. D., D.D.S., who is not shown to have expertise in infectious disease transmission, asserts that air gun injections "became the most efficient method known to man of spreading" hepatitis C, but includes no citation to medical or scientific authority to support such assertion, which is contradicted by the medical evidence of record. (See VA Fast Letter 04-13 and August 2012 VA examination). Finally, the Board notes that the remaining medical evidence of record, to include the Veteran's private treatment records and the letter from Dr. A. M. F., addresses the Veteran's current level of disability, but does not address the etiology of his disability and, thus, is not evidence to support entitlement service connection. In sum, the Board concludes that the preponderance of the evidence is against entitlement to service connection for Hepatitis C. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for hepatitis C is not warranted. The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs