Citation Nr: 1553614 Decision Date: 12/23/15 Archive Date: 12/30/15 DOCKET NO. 09-23 311A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Anchorage, Alaska THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The Veteran had active service in the United States Navy from January 1971 to May 1972. This matter comes before the Board of Veterans' Appeals (Board) from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. Jurisdiction of the appeal is currently with the RO in Anchorage, Alaska. The Veteran appeared at a Board videoconference hearing in February 2011 before the undersigned Veterans Law Judge (VLJ). A transcript is of record. A Board decision, dated in February 2011, reopened the Veteran's claim based on the receipt of new and material evidence and remanded the claim for further development. In August 2013, the case was again remanded for further development. FINDING OF FACT The Veteran's hepatitis C was not shown in service or for many years thereafter and is not shown to be related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for hepatitis C are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Analysis Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. §3.303. Service connection nonetheless may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing entitlement to direct service connection generally requires: (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a relationship or correlation between the disease or injury in service and the currently claimed disability - which is the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See also 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran has proposed a number of theories as to how he contracted hepatitis C during service, including cleaning out bilges without protection and receiving air-gun inoculations. The Veteran's service treatment records are negative for a diagnosis of Hepatitis C or for any type of liver problems. There is no specific evidence in the service treatment records that confirms or contradicts that the Veteran cleaned bilges during his naval service or received inoculations via an air-gun injection. For purposes of this decision, the Board will presume he did engage in these duties and did receive some level of such injections. Post-service, the Veteran's VA treatment records show a history of substance abuse and alcohol abuse, including, unfortunately, intranasal cocaine use. He was diagnosed with Hepatitis C in 2000, almost thirty years after separation from service. In December 2002, a VA examiner concluded that it was more likely than not that the Veteran's hepatitis C was caused by the Veteran's drug abuse and that there is no evidence that hepatitis C could be transmitted through air-gun inoculations. In November 2008, Dr. L.G., a private physician, opined that the Veteran was likely exposed to hepatitis C during his military service based on the Veteran's report that he worked with septic tanks while in the navy. The physician noted that given the nature of this duty in service, there was a strong case in support of job-related hepatitis C. There is no indication that Dr. L.G. reviewed the Veteran's claims file or the Veteran's history of other hepatitis C risk factors. At a March 2011 VA examination, the examiner indicated that he had reviewed the claims file, including Dr. L.G.s opinion. He noted that hepatitis C was first diagnosed during a June 2000 screening. Also, the Veteran reported that he had started drinking at age 16 used intranasal cocaine in the 1970s without sharing straws. Additionally, the examiner noted that after service, the Veteran had also developed hepatitis while receiving treatment for a positive tuberculosis test. This pathology was diagnosed as iatrogenic hepatitis and was temporary in nature, with the Veteran's liver enzymes returning to baseline after the tuberculosis treatment stopped. The examiner diagnosed the Veteran with hepatitis C and found that the most likely cause of the disease was alcoholism and nasal cocaine use. He noted that there was a correlation between having hepatitis B and subsequently getting hepatitis C and that Dr. L.G. appeared to have believed that the Veteran had had hepatitis B in the past. However, this was not the case as the Veteran had tested negative for both hepatitis A and B was given the appropriate immunizations for both diseases. Additionally, after reviewing the medical literature and textbooks, the examiner could find no reference to a relationship between working with septic tanks and getting hepatitis C. Thus, he believed that Dr. L.G's speculation about such a cause and effect relationship was unfounded. The examiner also felt that Dr. G, the VA physician who was initially treating the Veteran's hepatitis C, had provided the most accurate polysubstance use history for the Veteran when he noted in January 10, 2001 the Veteran's report that he had 'snorted cocaine in the 70s and shared straw' and was 'alcoholic until (2000) and . . . admitted to an average of 16 drinks nightly.' The examiner indicated that the Veteran had later denied sharing straws, but that intranasal cocaine use was still a risk factor even if done one time and that the prevalence of hepatitis C in patients with alcohol use is significantly higher than that seen in the general population. Accordingly, the examiner concluded that the Veteran's hepatitis C was not caused by or the result of his military service. The Board affords more probative value to the March 2011 VA examiner's opinion because it was based on a review of the pertinent medical history from the claims file, including the Veteran's exposure to such risk factors as chronic alcoholism and intranasal cocaine use and also a review of pertinent medical literature related to any potential relationship between hepatitis C and work with septic tanks. Also, the examiner clearly explained, based on a thorough review of the evidence, that the Veteran had not had hepatitis B in the past and that his other previous hepatitis had been iatrogenic caused by his tuberculosis-related treatment and had been temporary in nature. Additionally, the Board finds that the VA examiner was correct in crediting Dr. G's January 10, 2001 notation, documenting the Veteran's affirmative report that he did share a straw while snorting intranasal cocaine during the 1970s. In this regard, the Board finds this report to be accurate in that it was made much more contemporaneously to the Veteran being diagnosed with hepatitis C than his later report made during the March 2011 VA examination of not sharing straws. Additionally, this later report specifically served the Veteran's interest in potentially receiving service connection for the disease. Thus, the Board does not find this later reporting accurate. Further, given the Veteran's inconsistent reporting concerning his past drug use, the Board also does not find accurate the Veteran's apparent assertion made during the Board hearing that the oil in the bottom the bilge tanks he cleaned during service contained blood from other mechanics that had cut their hands on metal shavings and spilled that blood into the bottom of the tanks. In any event, even if this was true, the most likely cause of this disability are from factors, as cited above, that have no connection to service. As a result, this problem is less likely the result of exposures in service. Moreover, to the extent that the Veteran's hepatitis C is related to drug or alcohol use in service, such use constitutes willful misconduct and does not provide a basis for awarding service connection. 38 C.F.R. § 3.301. The Board also notes that the December 2002 VA examiner concluded that it was more likely than not that the Veteran's hepatitis C was caused by his drug abuse and that there is no evidence that hepatitis C could be transmitted through air-gun inoculations. Also, according to VA Fast Letter 04-13 (June 29, 2004), although transmission of hepatitis C through air gun injection is biologically plausible, there have been no case reports of the disease being transmitted by such means. Additionally, there is no medical opinion of record tending to indicate that the Veteran's hepatitis C has resulted from air gun injections during service. Thus, the weight of the medical evidence is against the hepatitis C being caused by or resulting from any air gun injections during service. Further, the overall weight of the medical evidence is against the Veteran's hepatitis C being caused by or resulting from his military service. Although the Veteran asserts that his current hepatitis C is related to service, as a layperson, with no demonstrated expertise concerning the etiology of hepatitis C, his assertions concerning such etiology may not be afforded more than minimal probative value. See e.g. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In sum, as hepatitis C did not become manifest in service or for many years thereafter and the weight of the evidence is against a finding that the disease is otherwise related to service. Thus, the preponderance of the evidence is against this claim and it must be denied. 38 C.F.R. § 3.303; Shedden, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Alemany, 9 Vet. App. 518 (1996). II. Due Process VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, VA provided adequate notice in a letter sent to the Veteran in November 2007. VA has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement relevant treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Additionally, the Veteran testified at the Board hearing in February 2011. A VLJ who conducts a hearing must fully explain the issues and suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the hearing, the Veteran was assisted by a representative, and both the representative and the VLJ asked relevant questions pertaining to the history of the Veteran's hepatitis C and his risk factors for the disease, and the VLJ also raised questions concerning whether there was any outstanding pertinent evidence that could be obtained. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) and to the extent there were any shortcomings, the Veteran was not prejudiced as there is no indication that there is any outstanding, obtainable evidence pertinent to the outcome of this case. 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). The service treatment records, VA treatment records, private treatment records and Social Security Administration (SSA) records are associated with the claims file. In the August 2013 remand, the Board also requested that the agency of original jurisdiction (AOJ) attempt to obtain workmen's compensation records. However, as the Veteran did not provide an appropriate release of information in relation to these records in response to the AOJs September 2013 request for this necessary document, the AOJ was not able to attempt to obtain such records. See 38 C.F.R. § 3.159(c)(1)(i). VA has also provided appropriate medical examinations in this case concerning the likely etiology of the Veteran's current hepatitis C. 38 C.F.R. § 3.159(c)(4). There is no indication of additional existing evidence that is necessary for a fair adjudication of the instant claim. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist and the Board may proceed to issue its decision. ORDER Service connection for hepatitis C is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs