Citation Nr: 1801585 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-03 740 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for hepatitis B. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Gillian A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1974 to April 1977 and April 1979 to January 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Board previously denied the claim in February 2010. The RO reopened the claim in February 2012 after the Veteran submitted new and material evidence. In September 2017, the Veteran testified during a video conference Board hearing before the undersigned Veterans Law Judge and a transcript of that hearing is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT Hepatitis B was incurred in service. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for hepatitis B have been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has a duty to notify a Veteran of the information and evidence necessary to substantiate a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). VA also has a duty to assist Veterans in the development of claims. 38 U.S.C. §§ 5103, 5103A (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C. § 5103(a) (2012); 38 C.F.R. § 3.159(b) (2017); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will to provide; and (3) that the claimant is expected to provide. The notice should be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between service and the disability; (4) degree of disability; and (5) effective date of the disability. The notice should include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Correspondence dated December 2006 and February 2012 provided all necessary notification to the Veteran. VA has done everything reasonably possible to assist the Veteran with respect to the claims for benefits. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2017). The service medical records have been associated with the claims file. All identified and available treatment records have been secured, which includes VA examinations and VA health records. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). When the VA provides an examination, the VA must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran was provided with VA examinations in July 2008 and November 2011. The examiners reviewed the claims file and past medical history, and made appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The Board concludes that the examination reports are adequate for the purpose of making a decision. 38 C.F.R. § 4.2 (2017); Barr v. Nicholson, 21 Vet. App. 303 (2007). Service Connection The Veteran contends that he is entitled to service connection for hepatitis B. Specifically, the Veteran asserts that when he incurred hepatitis during service it was misdiagnosed as hepatitis A instead of hepatitis B. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017). In addition, disabilities diagnosed after discharge may also be service-connected if all the evidence, including pertinent service records, establishes the disability was incurred in service. 38 C.F.R. § 3.303(d) (2017); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1363 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). While the Board must provide reasons and bases supporting a decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on behalf of the Veteran. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence of record. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not given to each piece of evidence contained in the record. Every item of evidence does not have the same probative value. For example, a layperson generally is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997); Bostain v. West, 11 Vet. App. 124 (1998); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). When the evidence is assembled, the Board 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 a claim, in which case the claim is denied. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A May 1975 treatment record notes a diagnosis of infectious hepatitis. According to a July 1975 treatment record, the Veteran was hospitalized for infectious hepatitis A. A February 1979 enlistment examination record notes that the Veteran was treated for acute hepatitis in 1975. At that examination, the Veteran otherwise was found to be in good health and qualified for enlistment. A June 1979 in-service examination noted that the Veteran had no trouble since hepatitis in 1975 and he had no sequelae. If there is no evidence of a chronic condition during service, or during an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support a claim. 38 C.F.R. § 3.303(b) (2017). Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. Savage v. Gober, 10 Vet. App. 488 (1997). In addition, medical evidence must relate this chronic symptomatology to the Veteran's present condition. Savage v. Gober, 10 Vet. App. 488 (1997). The Veteran's post-service treatment records do not support a finding that the Veteran has had chronic symptomatology of hepatitis since separation from active duty. The first evidence of hepatitis after service is the Veteran's claim that was received by VA in November 2006. When considering whether or not to grant a claim for service connection, the Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue. Maxson v. West, 12 Vet. App. 453 (1999); Forshey v. West, 12 Vet. App. 71 (1998). Here, the absence of any evidence of symptomatology of hepatitis for approximately 29 years after separation from service tends to establish that the Veteran has not experienced chronic symptomatology since separation from active duty. At a July 2008 VA examination, blood work found that the Veteran had hepatitis B. The examiner concluded that it was less likely than not that the Veteran's hepatitis B was related to active service. The examiner noted that the Veteran was diagnosed with hepatitis A during service, and hepatitis A does not have a chronic carrier state. A November 2013 VA examination report confirmed that the Veteran currently has hepatitis B, but noted that the service medical records showed he incurred hepatitis A in service. The examiner concluded that the existence of hepatitis A antibodies in service, with evidence of an acute onset, indicated that it was less likely than not that the Veteran's current chronic hepatitis B was related to in-service acute hepatitis A illness or other in-service event. The examiner also noted that acute hepatitis A does not cause chronic hepatitis B. The Veteran submitted a May 2017 private medical opinion by Dr. Daniel J. Scott, who opined that the Veteran's current hepatitis B disability was incurred in service. The doctor stated that lab reports showed that the Veteran only had positive antibodies for hepatitis B and had no antibodies for hepatitis A. Therefore, as he had only had hepatitis once, the doctor opined must have contracted hepatitis B in service. At the September 2017 hearing, the Veteran argued that his hepatitis illness was misdiagnosed in 1975 as shown by a current lack of positive antibodies for hepatitis A. The Board recognizes that the Veteran believes his hepatitis B is related to his service. However, as a layperson, the Veteran is not competent to provide that etiological opinion. Routen v. Brown, 10 Vet. App. 183 (1997); Bostain v. West, 11 Vet. App. 124 (1998); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Therefore, the Veteran's testimony on the matter is of no probative value. The Board notes that the Veteran indicated in a December 2007 notice of disagreement that he was told during service that he had chronic hepatitis that would remain with him the rest of his life. However, that statement does not suggest continuous symptomatology of a disorder since it is contradicted by the evidence of record. The Veteran's service treatment records describe the Veteran's hepatitis A as "acute," and according to a June 1979 examination, the Veteran had no more problems related to hepatitis. The July 2008 VA examiner also noted that hepatitis A does not have a chronic carrier state. That evidence directly contradicts the Veteran's claim, and the Board does not find that statement of December 2007 to have less probative value. As a final matter, the Board notes that the Veteran argued in the October 2008 appeal to the Board that testing for hepatitis B was not performed in 1975, and that is why the disease was not recorded in his service treatment records. However, without addressing the factual validity of such a claim, the Board notes that the Veteran has submitted no evidence to corroborate the claim. Therefore, his statement does not obviate the need for evidence of an in-service disease or injury to substantiate the claim. Resolving reasonable doubt in favor of the Veteran, the Board concludes that the Veteran is entitled to service connection for hepatitis B. While the VA examiners found that the current hepatitis B was less likely related to service, that was based on the diagnosis of hepatitis A during service. However, the private doctor stated that lab results indicated that there were no hepatitis A antibodies, and the Veteran had only one previous episode of hepatitis. That doctor opined that the lack of hepatitis A antibodies indicated that the Veteran had not previously had hepatitis A. Therefore, the diagnosis of hepatitis A during service was incorrect and the current hepatitis B represented the same hepatitis during service. The Board finds that doctor's rationale more persuasive as he relied on laboratory results of blood tests to determine that the Veteran never had hepatitis A. Accordingly, resolving reasonable doubt in favor of the Veteran, service connection for hepatitis B is granted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2016). ORDER Entitlement to service connection for hepatitis B is granted. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs