Citation Nr: 1801879 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 12-11 417A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for hepatitis C. 2. Entitlement to service connection for a back condition. 3. Entitlement to service connection for an acquired psychiatric disorder, claimed as a mental condition. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Showalter, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from September 1972 to June 1975. These matters are before the Board of Veterans' Appeals (Board) on appeal from June 2011 and November 2011 rating decisions of the Newington, Connecticut and Baltimore, Maryland Department of Veterans Affairs (VA) Regional Offices (RO). The Board remanded the claims in September 2016 to obtain a hearing. The Veteran was afforded a videoconference hearing in May 2017. A transcript of those proceedings has been associated with the claims file. FINDINGS OF FACT 1. The Veteran's post-service activities, such as intravenous drug use and a 1979 blood transfusion, were greater risks for acquiring hepatitis C than in-service events, such as rectal examinations, sexual activities, jet injector usage, clipper haircuts, hospitalization from an altercation, and dental surgery. 2. In May 2017, prior to promulgation of a decision in the matters, the appellant indicated in his hearing that he wished to withdraw the appeal seeking service connection for a back condition. There is no question of fact or law remaining before the Board in these matters. 3. In May 2017, prior to promulgation of a decision in the matters, the appellant indicated in his hearing that he wished to withdraw the appeal seeking service connection for an acquired psychiatric disorder, claimed as a mental condition. There is no question of fact or law remaining before the Board in these matters. CONCLUSIONS OF LAW 1. The criteria for service connection for hepatitis C have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 2. The criteria for withdrawal of an appeal are met as to the claim seeking back condition; the Board has no further jurisdiction in these matters. 38 U.S.C. §§ 7104, 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 3. The criteria for withdrawal of an appeal are met as to the claim seeking acquired psychiatric disorder, claimed as a mental condition; the Board has no further jurisdiction in these matters. 38 U.S.C. §§ 7104, 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawal The Board has jurisdiction where there is a question of law or fact in a matter on appeal to the Secretary. 38 U.S.C. § 7104. Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 C.F.R. § 20.202. The withdrawal of an appeal must be either in writing or on the record at a hearing. 38 C.F.R. § 20.204. If the appeal involves multiple issues, the withdrawal must specify that the appeal is withdrawn in its entirety, or list the issue(s) withdrawn from the appeal. Id. In the present case, the Veteran perfected an appeal as to the issue of entitlement to an acquired psychiatric disorder and a back condition. At the May 2017 hearing, the Veteran stated that he wished to withdraw the pending appeal regarding those conditions before the Board, leaving only the issue hepatitis C on appeal. The Board finds that there remain no allegations of error of fact or law for appellate consideration. Accordingly, the Board has no further jurisdiction to review the appeal with respect to an acquired psychiatric disorder and a back condition and the appeal for those two issues must be dismissed. Duty to Notify and Assist The notice requirements have been met. VA's duty to notify was satisfied by a letter dated April 2011. See 38 U.S.C. § 5102, 5103, 5103A; 38 C.F.R. § 3.159. That letter notified the Veteran of the information needed to substantiate and complete his service connection claim, including notice of information that he was responsible for providing and of the evidence that VA would attempt to obtain. Regarding the duty to assist, the Veteran's service treatment records (STRs) and relevant post-service treatment records have been obtained. The agency of original jurisdiction (AOJ) arranged for an appropriate VA examination which was held in May 2011. The Board finds that the clinical findings and informed discussion of the history and cause of the Veteran's hepatitis C in the examination are sufficient for rating purposes. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 299-300 (2008). The Board also finds that there has been substantial compliance with the prior September 2016 remand. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran was provided a hearing in May 2017 pursuant to that remand. The Veteran has not identified any available, outstanding records that are relevant to the claims decided herein. Since the Board concludes that VA has fulfilled the duty to assist the Veteran in this case, there is no error or issue that precludes the Board from addressing merits of this appeal. The Board finds that the record as it stands includes adequate, competent evidence to allow the Board to decide the matter on appeal, and that no further evidentiary development is necessary. See generally 38 C.F.R. § 3.159(c)(4). Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met and, accordingly, the Board will address the merits of the claim. Legal Criteria Initially, the Board notes that it has reviewed all of the evidence in the record, with an emphasis on the evidence relevant to this 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). 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 being decided. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for a 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). To establish a right to compensation for a present disability, a Veteran must show: (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, the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Competent (that is, qualified) medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may include statements contained in medical treatises, scientific articles, or research reports. 38 C.F.R. § 3.159(a)(1). Competent (that is, qualified) lay evidence means evidence not requiring that the person providing it have specialized education, training, or experience. Lay statements are qualified to establish than an event or circumstance occurred if the statements are provided by a person who has personal knowledge of matters that can be observed and described by a non-expert. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing observable symptoms or reporting that a medical provider gave them a diagnosis in the past. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay evidence may be qualified to establish that an event or injury occurred during service, or that a chronic disability began during service. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Board will grant the Veteran's claim if the evidence supports the claim or is in relative equipoise. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Factual Background STRs show in June 1973, October 1973, April 1974, and April 1975, the Veteran had a venereal disease. Treatment records show that the Veteran was diagnosed with hepatitis C in March 2011. He reported that while he had used intravenous drugs in the past, he had not shared needles. Beginning in 2011, the Veteran took regular medication for his hepatitis C. In June 2012, a physician stated that he informed the Veteran that "it is very difficult now to pinpoint with any degree of marginal certainty to the possible etiology of his infection." The physician noted that the Veteran could have acquired hepatitis C from any of the events the Veteran reported that occurred in service. In correspondence dated April 2011, the Veteran reported that he had not had an organ transplant before 1992, that he had not received a blood transfusion before 1992, that he had not undergone hemodialysis, that he had not engaged in "high risk sexual activity," and that he had only occasionally used intravenous or intranasal drugs between his separation from service and 1979. In a May 2011 examination, the examiner found that the Veteran's hepatitis C was less likely than not related to events in service. She stated that the hepatitis C virus was most commonly transmitted in blood transfusions before 1992 and in sharing of contaminated needles among injection drug users. She noted that while the disease can be transmitted sexually, and that the Veteran had documented venereal diseases associated with sexual activity while in service, his burn injury sustained in 1979 likely required a blood transfusion and his admitted intravenous drug abuse were more likely the cause for his hepatitis C. She opined that "even a needlestick injury or a healthcare occupation has lower odds" of acquiring hepatitis C than "IV drug use and blood transfusions." In correspondence dated July 2011, the Veteran reported that he only had "a few girlfriends" after he left service. Further he stated that his wife has tested negative for hepatitis C. The Veteran reported that a potential source of his infection could have also been from the razor haircut he and other service members received that lasted "30 seconds" and could have caused "abrasions and small cuts." He reported that he had several instances of venereal disease that was from sexual relations he had while he was in service, that he had two dental surgeries while in service, and also was subject to rectal examinations. He also reported that the examiner incorrectly indicated that he had multiple sex partners and intravenous drug usage before service, neither of which were true. Private treatment records received in July 2011 show that the Veteran received a blood transfusion in September 1979 after a burn incident. In January 2012, the Veteran's private physician noted that the Veteran was exposed to blood and body fluids that could have caused hepatitis C during his time in service. Additionally, the physician noted that the Veteran had several other activities that were risk factors for hepatitis C, including rectal examination and medical procedures. The physician stated that the Veteran "probably contracted hepatitis C while in the service." In correspondence dated May 2014, the Veteran reported that his contracture of hepatitis C was "biologically plausible" and likely that he contracted the disease from the risk-associated activities in service. In his hearing dated May 2017, the Veteran reported that there were several activities in service that could have exposed him to hepatitis C. He stated he received medical injections from a jet injector while he was in service that caused "blood splatter." He reported that during service he had his wisdom teeth removed. He stated that he was involved in a physical altercation while in service and while he didn't know if blood was involved, he stated "a lot of times there is blood involved in a fight." The Veteran reported that he had several sexual experiences that resulted in venereal disease while he was in service. Finally, the Veteran also stated he had to undergo rectal searches while he was in service. The Veteran also discussed several activities that occurred after service that could have exposed him to hepatitis C. The Veteran reported that he did use intravenous drugs at a party in 1976 and also had a blood transfusion in 1979. The Veteran reported however that he had no activities after 1979 that would have exposed him to risk for hepatitis C. In correspondence dated June 2017, the Veteran's treating physician stated that after reviewing the Veteran's treatment record and consulting the Veteran about his experiences in service, "it is as likely as it is not, that he contracted hepatitis C while serving in the military." In June 2017, a physician from the Veteran's religious congregation stated even though she couldn't say with absolute certainty "where his contracture of hepatitis C occurred," events the Veteran experienced in service "certainly put him at risk of contracting the disease and should be taken into consideration in his case." Analysis The main question to address in this case is whether or not the Veteran acquired hepatitis C during his time on active duty. Both private and VA physicians have stated that it is nearly impossible to determine which activity caused the Veteran's hepatitis C or when the Veteran acquired the disease. These physicians have noted that several of the Veteran's activities during service and after service are all possible incidents that could have infected him with hepatitis C. Without having a clear indication that one of these events was the cause, the Board instead must weigh the possibilities to determine which is more likely: that he acquired hepatitis C from activities in service or from activities after service. Turning to the activities that could have caused the Veteran's infection in service, the Veteran has shown that there were several incidents that could have led to his infection: two dental surgeries while in service, inoculation with a jet injector that might have caused blood splatter, several rectal examinations, a physical altercation that resulted in hospitalization, haircuts involving clippers, and several unprotected sexual experiences. The Board finds the Veteran credible that all of these events occurred, whether shown by STRs or through the Veteran's own testimony at his hearing. Furthermore, VA and private medical physicians have opined that it is "biologically possible" that all of these incidents could have caused the Veteran's hepatitis C. On the other hand, there were two main activities after service that could have also caused the Veteran's infection: intravenous drug use and a blood transfusion after a burning incident. Again, VA and private physicians have stated that these incidents could have also caused the Veteran's drug use. In determining which set of incidents had a greater probability in causing the Veteran's hepatitis C, the Board relies on the medical opinions provided that spoke to this question. The most persuasive opinion provided came from the May 2011 examiner, who compared the Veteran's in-service and post-service activities and provided a detailed rationale to support the ultimate conclusion. Specifically, the examiner opined that the Veteran's hepatitis C was less likely than not related to events in service because the disease was most commonly transmitted in blood transfusions before 1992 and in sharing of contaminated needles among injection drug users. She explained that, while the disease can be transmitted sexually, the Veteran's 1979 burn injury (which likely required a blood transfusion) and his admitted intravenous drug abuse were more likely the cause for his hepatitis C. She did not specifically acknowledge the in-service incidents that could have caused the disease, but she did explain that "even a needlestick injury or a healthcare occupation ha[ve] lower odds" of acquiring hepatitis C than "[intravenous] drug use and blood transfusions." Based on this opinion, the Board concludes that even the cumulative risk of the Veteran's in-service risk factors does not rise "at least as likely as not" to have caused hepatitis C, especially when compared to the cumulative risk of the post-service risk factors. In other words, the May 2011 opinion shows that most of the Veteran's hepatitis C risk factors occurred after service in the form of his intravenous drug use and his pre-1992 blood transfusion. The Veteran has provided three different medical opinions that tie the Veteran's in-service incidents to his hepatitis C. These opinions, however, do not provide a rationale as to how or why the in-service events have an equal or greater chance of causing hepatitis C than the post-service intravenous drug use or 1979 blood transfusion. The treatment note from January 2012 states that the Veteran "probably contracted hepatitis C while in the service" (emphasis added) but the physician did not address the post-service risk factors and, therefore, it is not clear that the opinion is based on an accurate factual premise. Likewise, the two June 2017 private opinions neither address the Veteran's post-service hepatitis C risk factors nor compare the relative risk of the post-service and in-service activities. In comparing the private positive opinions and the negative VA opinion, the Board must weigh these opinions based on their factual predicate and their rationale to determine which is more persuasive in their findings. See Evans v. West, 12 Vet. App. 22, 30 (1998). As the three private opinions do not provide a rationale as to how in-service events could be as much or greater risk to acquiring hepatitis C than intravenous drug use and a blood transfusion, the opinions are given less probative weight than the detailed VA opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The detailed VA opinion provided insight into the relative risk of the Veteran's in-service activities and post-service activities and even provided a reference point as to how great a risk the intravenous drug use and blood transfusion were. Accordingly, the competent and probative evidence of record compels the Board to finding that it is not "at least as likely as not" that the Veteran's hepatitis C was caused by or acquired during service. The Board understands that the Veteran has had many difficulties, not only with the hepatitis C diagnosis, but also in understanding the actual cause of the disease. The Board is sympathetic to the Veteran's situation. Unfortunately, the evidence does not allow the Board to find that the Veteran is entitled to service connection for hepatitis C. The Board is grateful for the Veteran's honorable service and regrets that a more favorable outcome could not be reached. ORDER Service connection for hepatitis C is denied. Service connection for a back condition is dismissed. Service connection for an acquired psychiatric disorder, claimed as a mental condition, is dismissed. ____________________________________________ VICTORIA MOSHIASHWILI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs