Citation Nr: 1609696	
Decision Date: 03/10/16    Archive Date: 03/22/16

DOCKET NO.  09-36 201	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUE

Entitlement to service connection for hepatitis.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

F. Yankey Counsel



INTRODUCTION

The Veteran served on active duty from October 1979 to October 1983.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.

In January 2013, the Board remanded the case for further development by the originating agency.  The case has been returned to the Board for further appellate action.


FINDING OF FACT

The Veteran has a current diagnosis of hepatitis C, which was incurred in active service.


CONCLUSION OF LAW

Hepatitis C was incurred in service.  38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. 
§§ 3.102, 3.303 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014) defined VA's duty to assist a Veteran in the development of a claim.  VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015).

The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim.  Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance).  In view of the Board's favorable decision, further assistance is unnecessary to aid the Veteran in substantiating his claim for service connection for hepatitis.

Legal Criteria

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. § 1110; 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); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303.

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology.  Barr v. Nicholson, 21 Vet. App. 303 (2007); see Clyburn v. West, 12 Vet. App. 296, 302 (1999).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  See Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b).  The theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

In relevant part, 38 U.S.C.A. 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional."  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 
see also Buchanan v. Nicholson, 451 F.3d at 1337 ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence").  "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology."  Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991).  Once evidence is determined to be competent, the Board must then determine whether such evidence is also credible.  See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). 

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).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. 
§ 3.102 (2015); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. At 54.

Analysis

The Veteran contends that he contracted hepatitis during service as a result of military air gun vaccinations.  He claims that he was treated for hepatitis in service and has suffered from hepatitis since.
      
Service treatment records (STRs) show that the Veteran was hospitalized in June 1983 with acute hepatitis B, which was confirmed by a positive hepatitis associated antigen test.  His records indicate that he recovered from this infection, which has been confirmed by repeated testing over the years.  The Veteran denies a history of drug use, but his records indicate a history of intranasal drug use in 1982, and there is documentation of a homosexual contact 8 months prior to his hospitalization.  

May 1989 lab work from North Central Labs in Elyria, Ohio, revealed what looked like an acute hepatitis episode.  The report of a February 1990 VA examination shows normal liver enzymes and no evidence of hepatitis or jaundice on the blood test.  Furthermore, repeat bloodwork drawn at an outside laboratory in September 1991 revealed normal alkaline phosphates, total bilirubin, and direct bilirubin levels.  Private treatment records from a Dr. Robinson, dated October 1991 to November 1995, and VA treatment records dated from November 1995 and January 1996 show hepatitis B surface antigen negative, hepatitis B surface antibody positive, hepatitis B core antibody-M negative, and hepatitis C virus antibody positive, with normal liver serum enzymes.  After physical examination in January 1996, the impression was: 1) hepatitis C virus antibody positive (mildly symptomatic) and 2) hepatitis B surface antigen negative.  It was noted that a repeat blood study to confirm the hepatitis C virus antibody test was ordered, as was a liver biopsy.  A liver biopsy conducted later in January 1996 was consistent with chronic hepatitis C.  VA treatment records dated through May 2011 and private medical records dated in May 2007 show diagnosed chronic hepatitis C.  
      
A September 2009 statement from a Dr. Bobak indicates that it is his contention that the Veteran has a "fairly strong case for showing the acquisition of some form of chronic hepatitis will [sic] in active military service." 

The Veteran underwent a VA compensation examination in February 2010 to determine the nature and etiology of his hepatitis.  The examiner confirmed the diagnosis of hepatitis C and noted that recent lab work for the Veteran showed a weak ab titre hepatitis B.  The examiner concluded that it is less likely as not that the Veteran's current hepatitis C is etiologically related to his in-service treatment for acute hepatitis.  The examiner stated that the in-service treatment for acute hepatitis is more consistent with hepatitis B.  As to the etiology of hepatitis C, the examiner stated he could not provide an opinion without resort to speculation.  The Board found that this opinion was inadequate for evaluation purposes.  See January 2013 Board remand.
      
The Veteran was afforded his most recent VA examination in March 2013.  The examiner diagnosed acute HBV infection with recovery in 1983, and no evidence of chronic hepatitis C.  He explained that the Veteran may have been exposed to hepatitis C at the same time he was exposed to hepatitis B, but identification and testing for hepatitis C was not available at that time.  He noted further that lab work drawn in 1989 revealed what appeared to be an acute hepatitis episode, possibly related to hepatitis C exposure, but again, testing for HCV was not available at that time.  Additionally, there is no documentation as to an associated illness at that time, which is not unusual with hepatitis C, as an associated physical illness during the time of exposure is usually not present.  The examiner ultimately concluded that an opinion regarding the Veteran's exact exposure to hepatitis C could not be resolved without resort to mere speculation.

The Board finds that the March 2013 examiner's opinion is not perfect, in that he states that he could not determine without resort to speculation exactly when the Veteran was initially exposed to hepatitis C.  However, overall, the Board finds that as he stated that the Veteran may have been exposed to hepatitis C at the same time he was exposed to hepatitis B (in service), and that the testing for hepatitis C was not available at that time, the evidence is in at least equipoise as to whether or not the Veteran contracted hepatitis C in service.  Resolving reasonable doubt in the Veteran's favor, service connection for hepatitis C is warranted. 38 U.S.C.A. § 5107(b) (West 2014).


ORDER

Service connection for hepatitis C is granted.





____________________________________________
GAYLE E. STROMMEN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs