Citation Nr: 1806698	
Decision Date: 02/01/18    Archive Date: 02/14/18

DOCKET NO.  12-25 100	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUE

Entitlement to service connection for hepatitis C.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

R. Walker, Associate Counsel



INTRODUCTION

The Veteran served on active duty from December 1955 to December 1958.

This matter came to the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky.

At his request, the Veteran was scheduled for a Board hearing at the RO to be held in September 2016.  However, the Veteran failed to report for the hearing, and neither furnished an explanation for his failure to report, nor requested a postponement or another hearing.  As such, the Veteran's hearing request is deemed withdrawn.  38 C.F.R. § 20.704 (d) (2017).

In January 2017, the Board remanded the matter for further evidentiary development.  The issues then on appeal were entitlement to service connection for residuals of a right leg fracture, and entitlement to service connection for hepatitis C.

While the matter was in remand status, in a June 2017 rating decision, the RO granted service connection for residuals of a right leg fracture and assigned an initial 10 percent rating, effective January 28, 2011.  The grant of service connection for that disability constitutes a full award of the benefits sought on appeal with respect to the claim of service connection for residuals of a right leg fracture.  See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997).  The record currently available to the Board contains no indication that the Veteran has disagreed with the initial rating or effective date assigned; thus, those matters are not in appellate status.  

Pursuant to its January 2017 remand instructions, the RO also developed additional evidence in connection with the claim of service connection for hepatitis C, to include obtaining a March 2017 VA examination and opinion.  Following that additional development, the RO apparently issued a Supplemental Statement of the Case [SSOC] to the Veteran and his representative in July 2017.  Unfortunately, the Board has been unable to locate the actual SSOC in VBMS or Virtual VA, although the record does contain a July 2017 SSOC response from the Veteran's representative acknowledging receipt of the SSOC and requesting that the Veteran's case be returned to the Board without further delay.  In addition, in September 2017 written arguments, the Veteran's representative indicated that the Veteran wished to waive initial RO review of additional evidence and he requested that the Board take jurisdiction and decide the appeal on its merits without further delay.  Under these circumstances, the Board will proceed with consideration of the appeal without further delay to the Veteran.  

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) (West 2014).


FINDING OF FACT

The Veteran does not currently have hepatitis C.  


CONCLUSION OF LAW

The criteria for an award of service connection for hepatitis C have not been met.  38 U.S.C.A. §§ 1110, 5107 (2012); 38 C.F.R. § 3.303 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

Neither the Veteran nor his representative has raised any 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 a duty to assist argument).  


Applicable Law

Service connection may be established for a disability resulting from a personal injury suffered or a disease contracted in the line of duty in the active military, naval, or air service.  38 U.S.C. § 1110.  Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d).

The standard of proof to be applied in a decision on claims for VA benefits is set forth in 38 U.S.C. § 5107(b).  Under that provision, VA 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 a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107(b); see also 38 C.F.R. § 3.102. 


Analysis

The Veteran contends that he contracted hepatitis C during service.  He reports that he became ill while on active duty and was hospitalized at Tokyo General Hospital for four months.  During his period of hospitalization there, he recalls that an Army doctor advised him that he had hepatitis as a result of "dirty needles."  He also recalls that he was thereafter transferred to San Fransisco, California, and Portsmouth Naval Hospital in Virginia where he received additional treatment.

After carefully considering the evidence of record, the Board concludes that the preponderance of the evidence is against the claim of service connection for hepatitis C.

In order to establish service connection, the record must show "(1) the existence of a present disability; (2) the 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.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

In this case, the most probative evidence establishes that the first element necessary to establish service connection, a current disability, has not been met.  

Pursuant to the Board's January 2017 remand instructions, the appellant was afforded a VA medical examination in March 2017.  At that time, the examiner conducted an in depth review of the Veteran's medical history.  In the examination report, he noted that the Veteran had reported that during his period of active duty, he contracted hepatitis and "turned yellow."  The Veteran reported that he became quite ill and was sent to Tokyo General Hospital for four months, where an Army physician advised him that his illness "was likely due to 'dirty needles.'"  The VA examiner also noted that the Veteran recalled that he was thereafter transferred from Tokyo to San Francisco then to Portsmouth Naval Hospital for additional treatment of hepatitis.  

The examiner correctly noted that the Veteran's service treatment records were unavailable.  (The service department has advised VA that such records were destroyed in the 1973 fire at the National Personnel Record Center).  As a result, the examiner indicated that there were no clinical records documenting the type of hepatitis the Veteran had contracted in service.  Accordingly, the examiner indicated that he had had an "in-depth discussion" with the Veteran as an alternative method to ascertain the details of his in-service illness.  Based on that discussion, the examiner indicated that he "highly suspect[ed]" that the Veteran had had "infectious hepatitis" in service which is Hepatitis A, an acute form of hepatitis that was not chronic like Hepatitis B or Hepatitis C.  Given that conclusion, the examiner indicated that as part of the examination, he had administered a hepatitis panel for A, B, and C to determine if the Veteran currently had any form of hepatitis as a result of the appellant's episode of in-service hepatitis.

The examiner explained that upon the return of the requested hepatitis labs, he had concluded that the Veteran did currently not have either Hepatitis B or Hepatitis C, nor did he have acute hepatitis A.  The examiner indicated that a reasonable explanation for the negative test results was the Veteran had had acute hepatitis A back in 1957 and, though very severe when infected, his in-service acute hepatitis A infection fully resolved without residual disability as he now exhibited normal hepatic functions on liver functions tests.  The examiner further explained that the Veteran exhibited no current clinical signs or symptoms attributable to chronic or infectious liver diseases, had not been diagnosed as having hepatitis C, did not have signs or symptoms of cirrhosis of the liver, and exhibited no hepatosplenomegaly, scleral icterus, or jaundice.  He explained that all laboratory studies had been normal, including for the hepatitis C genotype, hepatitis C viral titers, hepatitis A panel, hepatitis B panel, hepatitis C panel.  Further AST, ALT, alkaline phosphatase, bilirubin, and creatinine had all been within normal ranges.  The examiner also noted that a review of the Veteran's post-service clinical records showed that he had had no treatment for or diagnosis of hepatitis.  

The Board finds that the March 2017 examination report is highly probative as to the question of whether the Veteran currently exhibits hepatitis C.  The examiner fully considered the Veteran's medical history of treatment for hepatitis in service.  Nonetheless, the examiner explained that laboratory testing and a clinical evaluation had established that the Veteran did not currently exhibit any residuals of that acute episode of in-service infectious hepatitis.  The Board has considered an August 2004 VA clinical record which notes that the Veteran reported that he had been diagnosed with hepatitis C.  The Board finds that the objective laboratory testing and the March 2017 examination are far more probative than one clinical record which records a history reported by the Veteran, particularly as the remaining clinical evidence is silent for any evidence of a clinical diagnosis of hepatitis C.  

The Board wishes to assure the Veteran that his in-service treatment for infectious hepatitis has been carefully considered.  As explained above, however, that an illness occurred during service is not enough to establish service connection.  Rather, there must be chronic disability resulting from that in-service illness.  In this case, the record contains no probative evidence of a current disability which is associated with the in-service hepatitis.  Rather, the record establishes that the in-service hepatitis resolved without residual disability.  

The existence of a current disability is the cornerstone of a claim for VA disability compensation.  Degmetich v. Brown, 104 F. 3d 1328 (1997); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992).  In the absence of proof of a present disability, there can be no valid claim or the grant of the benefit.  Rabideau v. Derwinski, 2 Vet. App. 141 (1992); see also McLain v. Nicholson, 21 Vet. App. 319, 321 (2007).

In this case, the record on appeal contains no probative evidence establishing that the Veteran currently has, or has ever had, hepatitis C for any period of the claim.  McLain, 21 Vet. App. at 321.  Again, the March 2017 VA examination, which included laboratory studies, indicated that although the Veteran suffered from infectious hepatitis during active duty, that condition resolved without residual disability and the Veteran did not currently have hepatitis A, B, or C, or any residuals thereof such as liver pathology.  The appellant's description of his in-service hepatitis, as discussed above, is not enough to establish service connection absent proof of a current disability.

In this case, for the reasons discussed above, the most probative evidence reflects that the Veteran does not currently have hepatitis C.  In view of the foregoing, the Board finds that the preponderance of the evidence is against the claim of service connection for hepatitis C.  The benefit of the doubt doctrine is not for application where the clear weight of the evidence is against the claim.  See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).



ORDER

Entitlement to service connection for hepatitis C is denied.  





____________________________________________
K. Conner
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs