Citation Nr: 18153711 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 16-56 035 DATE: November 28, 2018 ISSUE Entitlement to service connection for a liver disability, claimed as hepatitis C. ORDER Entitlement to service connection for a liver disability, claimed as hepatitis C is denied. FINDING OF FACT A liver disability, to include hepatitis C was not manifest in service, and was not otherwise attributable to service. CONCLUSION OF LAW A liver disability, to include hepatitis C was not incurred in or aggravated by service. 38 U.S.C. §§ 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1977 to April 1980. This matter is before the Board of Veterans Appeals (Board) on appeal from a December 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (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 [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Entitlement to service connection for a liver disability, claimed as hepatitis C To establish service connection a Veteran must generally 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.” Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. The Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Veteran contends that he is entitled to service connection for hepatitis C. The Service Treatment Records (STRs) include a February 1977 Report of Medical Examination from enlistment. They show a clinically normal evaluation of the endocrine system and abdomen and viscera. There is no separation examination of record. Service Personnel Records (SPRs) show that the Veteran was hospitalized from June 6, 1978 to June 7, 1978. They do not show a specific related diagnosis. Years later, private treatment records from April 3, 2013 and July 11, 2013 from Atlantic Medical Imaging shows that the Veteran had a history of hepatitis C. They show that a CT scan of the abdomen was conducted on January 23, 2012. There were impressions of liver pathology, including 3 lesions in the liver which were likely perfusion anomalies. Additional private treatment records show diagnostic impressions of hepatitis C and end-stage liver disease. A private treatment record from Jersey Shore University Medical Center shows that the Veteran presented on November 25, 2013 with reports of abdominal pain. It shows, “He has a known Barrett’s diagnosis as well as worsening liver disease due to HepC.” A March 2014 private treatment record from DR. L. M. shows an active problem list that includes “Hepatitis Type C (chronic).” Additional private treatment records show diagnostic impressions of and treatment for hepatitis C, and are substantially the same. A November 20, 2014 Statement in Support of Claim shows: Medic came to post. Captain told us if we donate blood the rest of the day we had off. We jumped on it and donate[d] blood. As time went by, I felt sick went to the medics. They sent me to NurmenBurg Hospital (sic). Told me I have hepatietis (sic). Doctor at the time told me not to worry about the liver will regenerated itself (sic). I guess it was a lie. Now it’s 38 years later and I’m in the trouble I’m in. If I would of know[n] in 1980 when I got out I would of signed up with the V.A. The Veteran filed a timely Notice of Disagreement (NOD) in January 2015. He asserted in part, “If someone reviews my medical records from my time in service they will see it is clearly documented that I was in the hospital for two weeks with Hepatitis in 1978. I have been ill for many years since then and did not know that I could go back to the Veteran ’s Administration for benefits since I contacted Hepatitis from the Army. Once I was given this information, I filed the claim.” The Veteran then submitted a timeline of events. He reported that he donated blood based upon Army solicitation and was subsequently hospitalized in 1978. The Veteran was afforded an October 2016 VA examination. The VA examiner found that the Veteran was hospitalized in 1978, but there was no discharge diagnosis or summary of events that had transpired during hospital course. There was no record or history of hepatitis documented in STRs or in the hospital papers. The VA examiner highlighted that the Veteran was diagnosed with hepatitis C long after leaving service. The VA examiner also noted that the Veteran was a mechanic in service, which has low probability of exposure to blood. The VA examiner ultimately rendered a negative nexus opinion. The Veteran perfected his appeal in November 2016. He avers that VA failed to adequately investigate his claim. He has a confirmed diagnosis of hepatitis C by VA. He was at a hospital in Germany in June of 1978. The Veteran also reports that VA found in error that he was only hospitalized for two days, when in fact he was hospitalized for more than a week. He repeats his theory of entitlement that he contracted hepatitis C in service following the Army soliciting a blood donation, and was subsequently hospitalized, at which point the disease entity was identified. The Veteran contends that he is entitled to service connection for hepatitis C. The Veteran is competent to provide evidence of that which he experiences, including his symptomatology and medical history. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran is competent to report giving blood, being hospitalized, and abdominal pain. The Veteran is competent to relate what he has been told by a professional. He is competent to report when he began receiving treatment for a liver disability, and when hepatitis C was first identified. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the Veteran’s own lay opinions as to the diagnosis and cause of hepatitis C are not probative evidence, although the Veteran’s observed symptoms described may be useful to an expert in evaluating whether the Veteran has a disability and in determining the etiology thereof. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). Because the record does not indicate that the Veteran has medical expertise, the Veteran’s lay opinion beyond a description of his symptoms is of limited probative value. The most probative evidence is the contemporaneous treatment records, including the STRs, and the opinion of the October 2016 VA examiner. First, there are no notations of liver disability in service. Furthermore, the SPRs reflect only one day of hospitalization. This is in contrast to the period of hospitalization for more than a week claimed by the Veteran. Later, the first documentation of the Veteran having a liver disability was in 2012, with a diagnostic impression of hepatitis C. Second, the Board assigns significant probative weight to the detailed opinion of the October 2016 VA examiner. The physician reviewed the entire claims file, and provide detailed reasons and bases. The physician rendered a negative nexus opinion. The physician based this on a review of the claims file, including the Veteran ’s contentions. The VA examiner also noted the diagnosis of hepatitis C “long after” discharge. The Board assigns significant probative weight to the findings of the October 2016 VA examiner. Here, we find that the Veteran did not have the characteristic manifestations necessary to identify the disease entity in service. A liver disability, including hepatitis C, was not manifest in service and is not attributable to service. There is no probative evidence to the contrary. Although there is a notation of hospitalization in service, there is no diagnostic discharge, and an earlier diagnosis is not noted in the private treatment records. The Veteran’s theory of entitlement is largely based upon conclusory statements. While competent to report pain and hospitalization, the weight of the probative evidence of record is against the claim. The Board observes that the Veteran and his representative have indicated that other relevant evidence exists to support his claim. However, review of the evidence of record shows that the Veteran has not furnished this evidence. Here, the Board notes that the RO has assisted the Veteran in obtaining private treatment records. The Board observes, “The duty to assist is not always a one-way street. If a veteran wants help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.” Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran has had several years to cure the critical evidentiary defect of showing a diagnosis in service during the pendency of this appeal. We also note that a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Consequently, service connection for a liver disability claimed as hepatitis C is not warranted. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). (Continued on the next page.) In reaching this conclusion, the Board finds that the preponderance of the evidence is against this claim. As such, the benefit of the doubt rule is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs