Citation Nr: 1816500 Decision Date: 03/14/18 Archive Date: 03/23/18 DOCKET NO. 06-35 973 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for Hepatitis C. 2. Entitlement to service connection for a prostate disability, to include as due to genitourinary disorder. REPRESENTATION Veteran represented by: Ralph J. Bratch, Attorney ATTORNEY FOR THE BOARD G. Morales, Associate Counsel INTRODUCTION The Veteran had active service in the United States Army from January 1977 to December 1979. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2009, the United States Court of Appeals for Veterans Claims (Court) entered an order vacating the Board's August 2008 decision denying the issues, and remanded the case to the Board for further development consistent with its decision. Subsequently, in March 2012, the Board remanded the Veteran's claim for an addendum opinion and to associate outstanding records with the file. The matter has now returned to the Board for appellate consideration. The Board finds there has been substantial compliance with its prior remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand). Specifically, the records have been associated with the claims file, and an addendum opinion was issued in May 2012. The issue of service connection for a prostate disability, to include as due to genitourinary disorder, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The weight of the competent and probative medical evidence is against finding the Veteran's Hepatitis C had its onset or was incurred in active service. CONCLUSION OF LAW The criteria for service connection for Hepatitis C have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VA will assist a claimant in obtaining evidence necessary to substantiate a claim, but it is not required to provide assistance to a claimant if there is not a reasonable possibility that assistance would aid in substantiating the claim. VA must notify the claimant of any information, and any medical or lay evidence, not previously provided to VA, that is necessary to substantiate the claim. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). The Veteran has alleged an inadequate VA examination concerning his prostate, which is addressed further in the remand portion. See 5/8/2012, VA 21-4138, at p. 6. As such, the Board will proceed with consideration of the Veteran's appeal concerning service connection for Hepatitis C. Legal Analysis and Criteria Service Connection The Veteran contends that his Hepatitis C is a result of air gun injections in service, and from blood running off other individuals' arms as the moved from station to station. See 11/02/2010, Correspondence; see also, 6/16/2010, VA Examination, at p. 2. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2017). In order to establish entitlement to service connection, there must be 1) evidence of a current disability; 2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and 3) causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). The Veteran has a current diagnosis of Hepatitis C. See 6/14/2015, Medical Treatment Records - HCV Diagnosis, at p. 82. ("HCV since 2005."). The Board acknowledges the Veteran's belief that he has Hepatitis C because of injections during his active service. However, in this regard, as a layperson, he lacks the medical expertise to attribute his Hepatitis C to his in-service injections. Rather, the issues of diagnosis and etiology are within the province of medical professionals. In this case, the competent and probative medical evidence weighs against a link between the current diagnosis of Hepatitis C and the Veteran's service as discussed below. A VA examination in June 2010 addressed the Veteran's contention that his Hepatitis C is a result of air gun inoculations in service. See 6/16/2010, VA Examination at p. 2. The examiner reviewed the Veteran's service treatment records, risk factors, and medical records from the correctional facility where the Veteran currently resides. The examiner opined that it was less likely than not that the Veteran's Hepatitis C was related to his military service. Id. at p. 10. The examiner noted the Veteran had risk factors for Hepatitis C, including a history of intravenous (IV) drug use and intranasal and crack cocaine use. Id. The examiner also took into account the Veteran's statements that he only used clean, new and unused needles, for his IV drug use. Id. With respect to the Veteran's contention for how he contracted Hepatitis C, the examiner stated that there is no association found with military related exposure by air gun injection according to VA Cooperative Study CSP #488. Id. The examiner also included pertinent medical sources and studies, in particular, ones that showed how Hepatitis C can be passed when individuals take cocaine intra-nasally or use injection-drugs. Id. at p. 10-11. The examiner concluded that IV drugs were the most likely cause of infection, or alternatively that intranasal cocaine use was a more likely source of infection. Id. at p. 10. In response to the Board's March 2012 remand, an addendum was provided in May 2012, which in part, addressed why a liver biopsy was not needed. See 5/25/2012, C&P Examination. The examiner explained that a liver biopsy was not needed because the Veteran does not have detectable levels of the Hepatitis C virus in his blood, and that a biopsy would not corroborate his claims. Id. at p. 2. Additionally, the examiner stated that there is no credible medical evidence that demonstrates a relationship between inoculation with an air gun injection and Hepatitis C. Id. In this regard, the Board acknowledges the Veterans Benefits Administration's Fast Letter 04-13 (06/29/2004) that recognizes a biologically plausible relationship between air gun inoculations and hepatitis-C. This letter was not cited by the examiner. However, in light of the fact that the examiner identified intranasal drug use as a likely causative factor in this case, it does not appear that additional development would serve any useful purpose here. The June 2010 VA examination and May 2012 addendum are highly probative. They were given following a thorough review of the record, addressed the Veteran's contentions, and cited medical evidence supporting the opinions given. The examiner also provided a more likely alternative cause of the Veteran's Hepatitis C - drug use - that is supported by medical research and literature. Moreover, they were accompanied by clear rationale. For these reasons, they are considered highly probative. Again, the Board acknowledges the Veteran's belief that he contracted Hepatitis C through air gun inoculations while in service. However, the highly probative medical evidence states that it is less likely than not related to the inoculation. The examiner provided more likely alternative causes of his Hepatitis C contraction. In light of the evidence above, the Board concludes that the preponderance of the evidence is against a finding of service connection for Hepatitis C. For the above reasons, the preponderance of the evidence is against the claim and the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107(b). ORDER Entitlement to service connection for Hepatitis C is denied. REMAND The Board finds that a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. Specifically, a remand is necessary to afford the Veteran a new VA examination for his prostate disability. The Veteran has been consistent in his complaints regarding his prostate symptoms, as well as penile discharge dating back to his time in service. During service, his records indicate that he was treated for urethral discharge, and a boggy prostate. 6/13/2015, STR - Medical - Prostate, at p. 17, 23. Additionally, his medical records from the correctional facility also demonstrate complaints for the same condition, in addition to an enlarged prostate. See 6/14/2015, Medical Treatment Record, HCV Diagnosis, at p. 75, 88-89. Moreover, the Veteran has asserted the VA examination from October 2010 was inadequate. 5/8/2012, VA 21-4138, at p. 5. ("examiner's conclusion failed and/or ignored to review prostate complaints along with genitourinary disease"). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding treatment records. All requests and responses for the records must be documented. If any identified records cannot be obtained, notify the Veteran of the missing records, the efforts taken and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records. 2. Thereafter, schedule the Veteran for an examination with an appropriate VA examiner to assess the nature and severity of his prostate disability and alleged genitourinary disease. The examiner should record all subjective complaints, objective findings, review the claims file, and address the following: a) Does the Veteran have a current diagnosis for a prostate disorder or genitourinary disease? b) If yes, is it as least as likely as not (50 percent or greater) that it is related to his service, including his documented prostate problems and penile discharge noted in his service treatment records? If any requested opinion cannot be provided without resort to speculation, court cases require the examiner to explain why the opinion cannot be offered, and state whether the inability is due to the absence of evidence or to the limits of scientific or medical knowledge. 3. Thereafter, if any benefit sought on appeal remains denied, issue a supplemental statement of the case and return the case to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ Eric S. Leboff Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs