Citation Nr: 1827240 Decision Date: 05/01/18 Archive Date: 05/14/18 DOCKET NO. 09-31 199 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Veteran represented by: Harry Binder, Attorney at Law WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C.S. De Leo, Associate Counsel INTRODUCTION The Veteran had active service from October 1968 to July 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Denver, Colorado. In March 2014, the Veteran testified at a personal hearing over which the undersigned presided while at the RO. A transcript of that hearing has been associated with his claims file. This matter was previously before the Board in April 2014 at which time it was remanded for additional development. It is now returned to the Board. As will be discussed further herein, the Board finds that the agency of original jurisdiction (AOJ) substantially complied with the remand orders, and no further action is necessary in this regard. There are pending appeals for entitlement to an increased disability rating for service-connected posttraumatic stress disorder (PTSD) and entitlement to a TDIU. In this regard, in the October 2016 Appeal To Board Of Veterans' Appeals (VA Form 9), the Veteran requested a Board hearing. As the requested hearing has yet to be scheduled, the issues will be the subject of a separate Board decision. The Veteran's claims file has been converted into a paperless claims file via the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. All records in such files have been considered by the Board in adjudicating this matter. FINDING OF FACT The Veteran does not have hepatitis C that is attributable to his active service. CONCLUSION OF LAW The criteria for service connection for hepatitis C have not been met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C. §§ 5100, 5102-5103A, 5106, 5107, 5126 (2012), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. By letter dated in October 2007 the Veteran was notified of the evidence not of record that was necessary to substantiate his claim. He was told what information that he needed to provide, and what information and evidence that VA would attempt to obtain. He was also provided with the requisite notice with respect to the Dingess requirements. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran's relevant service, VA, Social Security Administration, and private medical treatment records have been obtained. There is no indication of any additional, relevant records that the RO failed to obtain. The Board further observes that this case was most recently remanded in August 2014 in order to obtain additional treatment records and to afford the Veteran an additional VA examination. Thereafter, additional VA outpatient treatment records and a VA examination report dated in June 2016 were associated with the Veteran's claims file. As such, the Board finds that the AOJ has substantially complied with the remand directives such that no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). In sum, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandates of the VCAA. Service Connection Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Service connection for certain chronic diseases, such as cirrhosis of the liver, may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. The Veteran contends that the viral hepatitis for which he was diagnosed after service is related to certain episodes of exposure during his period of active service. He asserts that he contracted hepatitis C as a result of being inoculated with air guns during service. During the Board hearing, he testified that he watched people in front of him get cut by the air guns, resulting in blood splatter. He said no one made efforts to clean or sterilize the guns between injections and that without the sterilization, the blood could have transmitted the virus. He explained that he had symptoms of hepatitis C, including abnormal bowel movements, darkened colored urine, fatigue, and stomach cramps during service. The Veteran also testified that while in combat, he had a shrapnel wound and that a medic in the field removed the shrapnel with forceps and placed a band aid over the wound. Moreover, he added that he was not exposed to any hepatitis C risk factors following separation from active service. In general, for service connection to be granted for hepatitis C, the evidence must show that a Veteran's hepatitis C infection, risk factor(s), or symptoms were incurred in or aggravated by service. The evidence must further show by competent medical evidence that there is a relationship between the claimed in-service injury and the Veteran's hepatitis C. 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. A VA Fast Letter (FL) issued in June 2004 (FL 04-13, June 29, 2004) identified "key points" that included the fact that hepatitis C is spread primarily by contact with blood and blood products, with the highest prevalence of hepatitis C infection among those with repeated, direct percutaneous (through the skin) exposure to blood (i.e., intravenous drug users, recipients of blood transfusions before screening of the blood supply began in 1992, and hemophiliacs treated with clotting factor before 1987). Another "key point" was the fact that hepatitis C can potentially be transmitted with the reuse of needles for tattoos, body piercing, and acupuncture. It was concluded in FL 04-13 that the large majority of hepatitis C infections can be accounted for by known modes of transmission, primarily transfusion of blood products before 1992, and injection drug use. The service treatment records do not document any complaints, findings or diagnoses pertaining to hepatitis C. In this regard, consistent with the Veteran's reports, service treatment records show that in August 1969, he sought treatment after having stuck himself in the finger with a sewing needle, and, in January 1971, he was treated for a superficial shrapnel wound on the leg, which was cleaned and dressed. Post-service treatment records do include a diagnosis of hepatitis C, which resolved following antiviral treatment. Pertinent post-service evidence consists of VA treatment records, VA examination report, and private treatment records. Specifically, VA treatment records dated in April 2013 show that the Veteran's primary care practitioner noted that hepatitis C was treated and cured, with minimal viral load on the last check. Private treatment records indicate treatment for hepatitis C. Specifically, a statement dated in July 1997 from C.M., RN of the University of Colorado Health Sciences Center, states the Veteran was a participant in the Intron A / Alferon N treatment protocol for hepatitis C, in which he enrolled in November 1996. After six doses he had an episode of chest tightness and difficulty breathing, for which he sought treatment in the emergency room at the University Hospital and thereafter was followed by Dr. L.S. The Veteran is noted to have continued the interferon therapy and completed the protocol's six-month follow-up period with lab work. Private treatment records from Dr. L.S. dated from 1994 to 2015 indicate the Veteran was diagnosed and treated for hepatitis C, which resolved in 2003. Specifically, private treatment records dated in 1995 show the Veteran was diagnosed with hepatitis C and had elevated liver enzymes in 1996 treated with interferon. During this time, he experienced chest pain, and stopped interferon. Since his decision to stop the interferon the Veteran reported that chest pain has gone completely away and he was concerned with his symptoms being a result of interferon. A February 2001 private treatment record from Dr. L.S. indicates the Veteran had a history of hepatitis C, with routine blood work every six to eight months, most recently two months earlier, which he was normal. Private treatment records dated in March 2001 and April 2002 indicated hepatitis C was now stable. A subsequent January 2002 private treatment record indicated the Veteran had a history of hepatitis C for the preceding six, with an allergy to interferon. Treatment records dated in 2003 indicate the Veteran had routine blood draw for viral count of hepatitis C. An October 2003 private treatment record indicates hepatitis C is resolving and near cure. A September 2004 treatment record indicates the Veteran had lab worked performed to test for hepatitis C since it had been some time. Lab results dated through 2015 indicate no finding of hepatitis C. A December 2012 statement from B.C.P., MD, indicates that the records of Peak Gastroenterology Associates document the Veteran was seen for hepatitis C from February 22, 2001, until January 20, 2004, and the origin of the disease is unknown. The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Moreover, the Board errs in failing to address pre-claim evidence in assessing whether a current disability existed, for purposes of service connection, at the time the claim was filed or during its pendency. See Romanowsky v. Shinseki, 26 Vet. App. 289, 293(2013). Significantly, in this case, the Veteran filed a claim of service connection in September 2007. Thus, in order to meet the current disability requirement, the asserted disability must be present at any time since September 2007. In considering whether the Veteran has had a disability of the liver during this time period, the Board must consider that a "disability" for the purposes of awarding VA disability benefits is not only a disease or an injury, but also any "other physical or mental defect." 38 U.S.C. § 1701 (1); Allen v. Brown, 7 Vet. App. 439, 444-45 (1995). In order for the Veteran to qualify for entitlement to compensation under the pertinent statutes and regulations pertaining to direct service connection, he must prove the existence of disability that has resulted from a disease or injury that occurred in service. See Sanchez-Benitez v. Principi, 259 F.3d 1356, 1361-1362 (Fed. Cir. 2001). Based on the above principles, the Board finds that service connection for hepatitis C is not warranted. The June 2016 medical opinion reflect conclusions by a competent medical professional that weigh against a finding of service connection. In this opinion, the practitioner concluded that the evidence of record shows hepatitis C was completely eradicated after six months of antiviral therapy in 2003. The practitioner explained that this means that the Veteran's hepatitis C has been cured. The practitioner also confirmed he had no liver residual or disability related to his previous history of hepatitis C. Additionally, concerning the Veteran's reported symptoms in service of hepatitis C, including abnormal bowel movements, darkened colored urine, fatigue, and stomach cramps, the June 2016 VA examiner noted that the Veteran's service treatment records were silent for any of the reported symptoms. In so finding, the examiner explained that although dark urine and chronic fatigue maybe symptoms of acute hepatitis, these are non-specific symptoms and may be related to gastroenteritis and are not specific or diagnostic of viral hepatitis. Such opinion clearly was based on examination of the Veteran, full consideration of the Veteran's medical history and assertions, and supported by clearly-stated rationale. As such, the Board accepts the opinion as probative of the existence of a current disability and medical etiology questions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Significantly, there is no contrary medical evidence or opinion of record-i.e., that in fact, establishes a current hepatitis C related to an in-service event, injury, or disease-and neither the Veteran nor his representative has presented or identified any such supporting evidence or opinion. Given the above, the Board finds that the most probative evidence of record shows that the Veteran has not had hepatitis C during the duration of the period on appeal, but that it had been cured in 2003. The practitioner concluded by indicating that the Veteran's resolved hepatitis C has not resulted in any current disability. The practitioner also confirmed that the Veteran had no liver residual or disability related to his previous history of hepatitis C, which is also consistent with lab results for five years thereafter. The June 2016 examination report weighs against the claim. Post-service treatment records also document treatment for hepatitis C, which is shown to have resolved. There is no associated medical opinion linking any current disability to active service. In this regard, the Board acknowledges the Veteran's statements as noted on the VA examination report and medical evidence of record but finds that they provide no persuasive support for the claim. The June 2016 VA medical opinion concludes that the Veteran's lab work since May 2003 is consistent with resolved hepatitis C, which has not result in any residual conditions. The opinion is adequate and well supported by rationale. The Board has considered the Veteran's statements with respect to his symptoms and medical history. Lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a Veteran's particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In this case, the Veteran's testimony as to hepatitis C is testimony as to an internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Compare Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-9 (2007); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); Jandreau, 492 F.3d 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"). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). The Veteran's statements in this regard are, therefore, of limited probative value. Given the medical evidence against the claim, for the Board to conclude that the Veteran has current hepatitis C that was incurred during service would be speculation, and the law provides that service connection may not be based on a resort to speculation or remote possibility. 38 C.F.R. § 3.102 (2017); Obert v. Brown, 5 Vet. App. 30, 33 (1993). As the preponderance of the evidence reflects that the Veteran has not established an essential element of his claim for service connection for hepatitis C, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. ORDER Service connection for hepatitis C is denied. ______________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs