Citation Nr: 1628180 Decision Date: 07/14/16 Archive Date: 07/28/16 DOCKET NO. 10-43 551 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION The appellant is the surviving spouse of a veteran (the Veteran) who had active duty service from May 1969 to May 1971. The Veteran died in May 2013. The appellant is pursuing this appeal as a substitute claimant. This appeal comes before the Board of Veterans' Appeals (Board) from an October 2008 rating decision of the RO in St. Petersburg, Florida. The appellant did not report for a Board hearing that was scheduled to be conducted at the RO in April 2014. Because the appellant has neither submitted good cause for failure to appear, or requested to reschedule the hearing, the request for a hearing is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2015) (failure to appear for a scheduled hearing treated as withdrawal of request). In May 2015, the Board remanded this appeal for additional evidentiary development. The appeal has since been returned to the Board for further appellate action. FINDING OF FACT Hepatitis C is not related to service CONCLUSION OF LAW Hepatitis C was not incurred in service. 38 U.S.C.A. §§ 1110, 1116, 1154(b), 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(d) (2015). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant contends that the Veteran's hepatitis C is related to his exposure to Agent Orange during his service in Vietnam. VA law provides that, for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, or other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation, except if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C.A. §§ 1110, 1131 (West 2014). Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For specific enumerated diseases designated as "chronic" there is a presumption that such chronic disease was incurred in or aggravated by service even though there is no evidence of such chronic disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). The presumptive diseases do not include hepatitis C. VA has established a presumption of herbicide exposure applicable to veterans who served in Republic of Vietnam during the Vietnam War, and a presumption of service connection applicable to veterans who are either presumed to have been exposed to herbicide agents, or who are shown to have been actually exposed to herbicide agents during service. However, the presumption of service connection applies only to certain specified diseases and hepatitis C is not among the herbicide-presumptive diseases. See 38 C.F.R. § 3.307(a), 3.309(e). VA has issued guidance on claims involving hepatitis C. 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 VA 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; nevertheless, it is biologically plausible. 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. The Veteran's service treatment records reveal no treatment for or diagnosis of hepatitis of any description and no complaint of symptoms subsequently attributed to hepatitis C. Service treatment records also do not substantiate any of the risk factors for hepatitis C as set out in the VBA letters. The Veteran was examined at service separation in April 1971, and his genito-urinary system was clinically normal. He also completed a report of medical history on which he reported no history of, or current, liver trouble. Post-service clinical records reveal the initial diagnosis of hepatitis C in 2004. The Veteran did not contend that his hepatitis actually began in service. His assertions were centered on in-service exposure to, what he believed to be potential causes of hepatitis C. On the VA Form 9, he described living in the jungle and constantly being in contact with dirty water and engaging in fire fights. He described carrying a wounded soldier from the jungle to base camp. However, the Veteran's essential contention was that hepatitis was related to herbicide exposure. The Veteran was afforded a VA examination August 2010. At that time, he reported a history of sharing toothbrushes and razors, blood exposure, and high risk sexual practices in the service and a history of intranasal cocaine use after service. The examiner essentially declined to offer an opinion, finding: "[I]t is not possible to provide an opinion as to whether it is as likely as not that the Veteran's current hepatitis C is related to [IN-SERVICE EVENT OR RISK FACTOR] without resort to mere [sp]eculation... [P]er Veteran statement, there are multiple risk factors for development of hepatitis C and it is not possible to isolate any one factor as the factor that led to develop[me]nt of hepatitis C." The Veteran submitted a September 2010 letter from his private psychologist, L. Bernstein, PhD, wherein she opined that the Veteran's diabetes and hepatitis C were most likely the result of his herbicide exposure during military service. No explanation was provided by Dr. Bernstein. The Board remanded this appeal in May 2015 to obtain a medical opinion based on claims file review. In a December 2015 report, a VA clinician provided the opinion that the Veteran's hepatitis C less likely than not (less than 50 percent) began in or was otherwise the result of military exposure, to include exposure to Agent Orange or other tactical herbicides during military service. The rationale for the December 2015 VA opinion included a detailed discussion of the various risk factors present in this case. To summarize this extensive discussion, the VA clinician assigned percentages to each method of transmission and concluded that there was a higher likelihood that the Veteran acquired hepatitis C outside the service. The VA clinician specifically noted that there is no medical consensus demonstrating a causal relationship between exposure to Agent Orange or other tactical herbicide and the transmission of Hepatitis C. The VA clinician also found it less likely than not that the Veteran's hepatitis C was caused or aggravated by his service-connected diabetes mellitus, noting that the diabetes predated the hepatitis C, and that there was no appreciable increase in his Model for End-Stage Liver Disease (MELD) scores in the interim between onset of diabetes and onset of hepatitis C. Finally, the VA clinician found it less likely than not that hepatitis C was caused or aggravated by the Veteran's service-connected PTSD, noting that PTSD is not a recognized risk factor for hepatitis C, and again noting the lack of appreciable increase in the MELD score during the interim between onset of PTSD and the onset of hepatitis C. The Board acknowledges that there is a conflict in the medical opinion evidence. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993). The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App 171 (1991). Here, the Board assigns greater probative weight to the December 2015 opinion than to the opinion of Dr. Bernstein. In so finding, the Board notes that the purported relationship between hepatitis C and herbicide exposure is unexplained by Dr. Bernstein. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Sklar v. Brown, 5 Vet. App. 140 (1993) (the weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated). Moreover, the opinion appears inconsistent with the medical research underlying VA law regarding herbicide exposure, in that the list of herbicide-presumptive diseases, which does not include hepatitis C, is based on research conducted by the National Academy of Sciences. See Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2010, 77 Fed. Reg. 47,924-47,928 (Aug. 10, 2012). The Board has considered the fact that the August 2010 VA examiner believed that an opinion could not be reached on the very question at issue. This raises the question of whether either of the remaining opinions is valid. However, as acknowledged by the Veterans Court, there can be many reasons for the failure of a given clinician to formulate an opinion. Therefore, before the Board can rely on the August 2010 examiner's conclusion that an etiology opinion is not possible, it is incumbent on that examiner to adequately explain the basis for such a conclusion; or, the basis must otherwise be apparent in the Board's review of the evidence. Cf. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Moreover, the examiner must clearly identify precisely what facts cannot be determined. For example, it should be clear in the examiner's remarks whether it cannot be determined from current medical knowledge that a specific in-service injury or disease can possibly cause the claimed condition, or that the actual cause cannot be selected from multiple potential causes. See Jones v. Shinseki, 23 Vet. App. 382 (2010). In this case, the August 2010 examiner's only explanation was that there are multiple risk factors for development of hepatitis C and it is not possible to isolate the causal factor. This is not an explanation as much as it is a restatement of the assertion that a non-speculative opinion is not possible. The Board notes that a clinician asked to provide an opinion may have an obligation to conduct research in the medical literature depending on the evidence in the record at the time of examination. See Wallin v. West, 11 Vet. App. 509, 514 (1998). The phrase "without resort to speculation" should reflect the limitations of knowledge in the medical community at large and not those of a particular examiner. A review of the December 2015 opinion reflects an extensive review of the evidence and the medical literature which is not apparent in the August 2010 statement. Accordingly, the Board finds that the August 2010 examiner's statement does not reduce the probative weight of the December 2015 opinion. The Board has considered the Veteran's assertions relating hepatitis C to herbicide exposure, as well as those of the appellant. Generally, lay evidence is competent with regard to identification of a disease with unique and readily identifiable features which are capable of lay observation. See Barr, 21 Vet. App. at 308-09. A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. See Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. Lay persons may also provide competent evidence regarding a contemporaneous medical diagnosis or a description of symptoms in service which supports a later diagnosis by a medical professional. However, a lay person is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation. Lay statements are not competent evidence regarding diagnosis or etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); Jandreau, at 1377, n. 4 ('sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer'); 38 C.F.R. § 3.159(a)(2). The Board finds that relating a current diagnosis of a disease process such as hepatitis C to temporally remote events in service, such as herbicide exposure or exposure to other risk factors, is not the equivalent of relating a broken bone to a concurrent injury to the same body part (Jandreau, at 1377). Such an opinion requires knowledge of the potential causes of hepatitis C, and the inherently medical question of how a specific event in service may have contributed to bring about temporally remote hepatitis C. These are not matters which are capable of lay observation. Accordingly, the Veteran's lay statements, and those of the appellant, are not competent evidence of an etiologic relationship between the claimed hepatitis C and service. The Board has considered the assertion made on the appellant's behalf that the Veteran engaged in combat with the enemy and that the combat rule substantiates the incurrence of hepatitis C due to service. The combat rule states that, in the case of a veteran who engaged in combat with the enemy in a period of war, lay evidence of in-service incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation. See 38 U.S.C.A. § 1154(b); Libertine v. Brown, 9 Vet. App. 521, 524 (1996); Collette v. Brown, 82 F.3d 389, 392-94 (Fed. Cir. 1996). The standard used to determine whether a veteran engaged in combat with the enemy is reasonable doubt, which is to be resolved in a veteran's favor. See VAOPGCPREC 12-99. The provisions of 38 U.S.C.A. § 1154(b) can only provide a factual basis upon which to establish the occurrence of a particular disease or injury in service; they cannot be used to link the claimed disease or injury etiologically to a current disability. See Libertine, 9 Vet. App. at 522-23. The provisions of 38 U.S.C.A. § 1154(b) do not establish service connection for a combat veteran; rather, they relax the adjudicative evidentiary requirements for determining what happened in service. Clyburn v. West, 12 Vet. App. 296, 303 (1999). Here, while there is no dispute that the Veteran engaged in combat during his service, the very exposures identified by the Veteran were submitted for a medical opinion, which found it less likely than not that his hepatitis C was related to such exposures. The Veteran's assertions of exposure were accepted as true for purposes of this opinion. The question remaining concerns the link between hepatitis C and the events of service, a fact which cannot in this case be substantiated by the combat rule. Libertine, 9 Vet. App. at 522-23; Clyburn, 12 Vet. App. at 303. There can be no doubt from review of the record that the Veteran rendered honorable and admirable service and that the appellant is sincere in her belief that the Veteran's incurrence of hepatitis C was related to this service. In the final analysis, competent medical opinion, which is well-explained and informed by the record, has been adduced, and does not support her assertions. Simply put, the weight of the competent evidence does not substantiate her contention that the Veteran's incurrence of hepatitis C is related to his service, to include herbicide exposure or combat exposures therein. In sum, the Board finds that a preponderance of the evidence is against any etiologic relationship between the Veteran's hepatitis C and service. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Duties to Notify and Assist VA's duty to notify was satisfied by a letter in June 2008. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The RO has obtained pertinent medical records including the service treatment records, VA outpatient treatment reports, records from the Social Security Administration, and private treatment reports identified by the appellant. The appellant has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of this claim that has not been obtained. The RO has also obtained a thorough medical examination regarding the claim, as well as a medical opinion. The appellant has made no specific allegations as to the inadequacy of any opinion. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). As noted above, this appeal involves a remand by the Board for additional evidentiary development. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). While substantial compliance is required, strict compliance is not. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In this case, the RO substantially complied with the Board's remand instructions by obtaining additional VA treatment records and affording the appellant an opportunity to identify and/or submit additional private treatment records. The RO also obtained a medical opinion regarding whether the Veteran's hepatitis C was related to service, to include multiple potential exposures therein, and/or whether hepatitis C was related to or aggravated by a service-connected disability. ORDER Service connection for hepatitis C is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs