Citation Nr: 18105547 Decision Date: 05/24/18 Archive Date: 05/24/18 DOCKET NO. 14-38 700 DATE: May 24, 2018 ORDER Service connection for hepatitis C (claimed as hepatitis non-A / non-B), to include as due to exposure to herbicide agents, is denied. REMANDED Service connection for a liver mass / lesion, to include as due to exposure to herbicide agents, is remanded. FINDING OF FACT It is undisputed that the Veteran has no current diagnosis of hepatitis C; and there is no competent evidence to suggest that he has any hepatitis C symptoms that have resulted in functional impairment in earning capacity.   CONCLUSION OF LAW The criteria for service connection for hepatitis C (claimed as hepatitis non-A / non-B), to include as due to exposure to herbicide agents, have not been met. 38 U.S.C. §§ 1110, 1131, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1964 to January 1968 and from June to August 1969 with the U.S. Navy, and from October to November 1990 with the U.S. Air Force. He also had many years of additional service with the U.S. Navy Reserve and the U.S. Air Force Reserve. The Veteran testified before the undersigned Veterans Law Judge during an March 2018 video conference hearing. A transcript of that proceeding is associated with the claims file. A waiver of initial Regional Office (RO) review of additional evidence submitted by the Veteran is automatic in substantive appeals filed after February 2, 2013, unless the claimant or claimant’s representative requests in writing that the RO initially review such evidence. See 38 U.S.C. § 7105(e). Here, the Veteran and his representative submitted additional, pertinent evidence since the September 2014 Statement of the Case (SOC) and have not requested RO initial review of such evidence. The Veteran’s representative also expressly indicated the Veteran’s desire to waive RO consideration of this evidence. See March 2018 hearing transcript and March 2018 correspondence. Therefore, the Board may proceed with a decision on the claim denied below. The Board has thoroughly reviewed all the evidence in the Veteran’s VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board’s decision, as well as to facilitate review by the Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, supra. Pertinent regulations for consideration were provided to the Veteran in the September 2014 SOC and will not be repeated here in full. The Veteran claims service connection for hepatitis C (claimed a hepatitis non-A / non-B). He concedes that while he has been diagnosed with a liver mass / lesion – the basis of a separate service connection claim on appeal that is addressed in the remand below – he has no current diagnosis of hepatitis C. See 2018 Board hearing transcript. After a full review of the record, the Board finds that the claim must be denied. It is undisputed that the Veteran has neither a current diagnosis of hepatitis C nor current hepatitis C symptoms that have resulted in functional impairment in earning capacity. Accordingly, he has no current disability for which service connection may be granted. The Veteran’s private treatment records show ongoing treatment for and monitoring of his liver mass / lesion. However, none of those private treatment records show a current diagnosis of hepatitis C – which, as noted above, he expressly acknowledged during the 2018 Board hearing. The Board considered Saunders v. Wilkie, 2018 U.S. App. LEXIS 8467 (Fed. Cir. Apr. 3, 2018) (holding U.S. Court of Appeals for Veterans Claims erred as matter of law in finding veteran’s pain alone, absent specific diagnosis or otherwise identified disease or injury, could not constitute a disability under 38 U.S.C. § 1110 (2016)) and other relevant authorities. These authorities do not support a finding that the Veteran has a current hepatitis C disability here. He notably has not made any specific contentions of any alleged current, subjective hepatitis C symptoms, or how he believes any such symptoms have resulted in specific functional impairments. Cf. Read v. Shinseki, 651 F.3d 1296, 1301 (Fed. Cir. 2011) (“disability” in VA regulations is “generally associated with the veteran’s inability to perform certain acts”). The presence of a disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). However, Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. Hence, where the evidence does not support a finding of a current disability upon which to predicate a grant of service connection, there can be no valid claim for that benefit. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Therefore, service connection for hepatitis C is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist regarding the claim denied above. 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). Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R.§ 3.103(c)(2), and neither has identified any prejudice in the conduct of the Board hearing. As the issue has not been raised, there is no need for the Board to discuss compliance with Bryant v. Shinseki, 23 Vet. App. 488 (2010). See Dickens, supra. (As discussed further in the remand below, the Veteran identified relevant, outstanding private treatment records regarding his liver conditions in various releases. However, during the 2018 Board hearing, he expressly conceded that he has no current diagnosis of hepatitis C. Accordingly, a remand of the hepatitis C claim to obtain such private treatment records is unnecessary.) REASONS FOR REMAND Initially, the Board notes that the Veteran filed a service connection claim for an unspecified liver condition in addition to his service connection claim for hepatitis “non-A / non-B” denied above. He clarified during the 2018 Board hearing that the former claim referred to his current liver mass / lesion. The Board has characterized the issue accordingly. The liver mass / lesion claim is remanded for the following additional development. First, a VA examination and medical opinion are needed prior to adjudication of the claim. Second, the Veteran identified multiple private providers in completed releases. However, it appears that the RO made no attempts to obtain these records. (The private treatment records currently in the claims file relevant to the remanded liver mass claim were submitted by the Veteran and his representative.) On remand, the RO must obtain updated releases and request all identified private treatment records. If they are not available, then the RO must advise the Veteran accordingly and give him an opportunity to submit the records himself. Finally, the Board concedes that the Veteran was diagnosed with and hospitalized for hepatitis “non-A / non-B” during his April 1982 Reserve service; however, the nature of that Reserve service is unclear. During the 2018 Board hearing, he suggested that this hospitalization may have been during a period of active duty for training (ACUDTRA) or inactive duty for training (INACDUTRA). See 2018 Board hearing transcript at 1 (referencing 1982 “reserve weekend”). For a claimant to obtain service connection for a disability related to a period of service other than active duty, it must be shown that he became disabled from a disease or injury incurred or aggravated in the line of duty during a period of ACDUTRA, or that he became disabled from an injury incurred or aggravated in the line of duty (or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident) occurring during INACDUTRA. See 38 U.S.C. § 101; 38 C.F.R. §§ 3.1(d), 3.6(a, c, d). On remand, the RO must attempt to verify the nature of the Veteran’s April 1982 period of Reserve service; the Veteran also may submit any evidence he may have in his possession relevant to that issue. (The Board notes that it would be futile to attempt to request the inpatient treatment records from the Veteran’s April 1982 hospitalization for hepatitis because the Veteran and Dr. J.K. Cherry both stated that the hospital is closed and the records are no longer available. See 2018 Board hearing transcript; see also 2014 Dr. Cherry statement. This will not prejudice the Veteran here because the Board concedes that during his April 1982 Reserve service, he was hospitalized for and diagnosed with hepatitis “non-A / non B” based on the very credible, detailed statement by Dr. Cherry, who admitted the Veteran and served in his unit.) The matters are REMANDED for the following action: 1. Send the Veteran and his representative a letter asking the Veteran to submit the following (and affording him a reasonable time to respond): (a.) any evidence he may have in his possession verifying the nature of his April 1982 “Reserve weekend” service (i.e., ACDUTRA or INACDUTRA). (b.) updated releases so the RO can attempt to obtain relevant private / non-VA treatment records from the following identified medical providers: i. Dr. Y. Kono; ii. Scripps Green Hospital (Dr. D. Halbeck and Dr. Fischer); iii. Arch Health Partners (Dr. B.C. Joswif, primary care provider); iv. Scripps Health Clinic; v. University of California, San Diego (Dr. T. Hassanein) – Note: In July 2014, Veteran’s representative submitted relevant evidence from this facility from approximately 2004 to 2014; if there are any additional treatment records from this facility relevant to the remanded claim, then the Veteran should submit an updated release so the RO can request those records. 2. After obtaining the necessary releases from the Veteran per Step 1 above, request all outstanding medical records from the identified private / non-VA providers listed above, and all other private / non-VA provider(s) who treated the his liver mass / lesion that the he may identify in any submitted releases. If additional care relevant to the remanded issue is referenced in these private / non-VA treatment records, then the RO should attempt to obtain records of that care as well. 3. Attempt to verify the nature of the Veteran’s Reserve service in April 1982 (i.e., ACDUTRA or INACDUTRA) when it is conceded that he was hospitalized for and diagnosed with hepatitis “non-A / non-B,” including but not limited to directly contacting his U.S. Air Force Reserve unit, Squadron 414 Medical Service (which was assigned to 452 Air Mobility Wing at March Air Force Base in Riverside, California in April 1982). See letter from Dr. J.K. Cherry received in November 2014. Document all such attempts and any negative responses. 4. DO NOT PROCEED WITH THE FOLLOWING INSTRUCTIONS UNTIL ALL ACTIONS AND DEVELOPMENT REQUESTED ABOVE HAVE BEEN COMPLETED TO THE EXTENT POSSIBLE. 5. Schedule the Veteran for a VA examination by an appropriate clinician who is a physician, given the medical complexity of this condition, to determine the nature and etiology of his liver mass / lesion. In the examination / opinion request, please expressly inform the VA examiner whether the Veteran’s April 1982 Reserve service, when the Veteran concededly was diagnosed with and hospitalized for hepatitis “non-A / non-B,” was a period of ACDUTRA or INACDUTRA. The examiner must note his or her review of the complete claims file, including this remand. Then, the examiner should opine as to the following, with full supporting rationales: (a.) Please list each of the Veteran’s current diagnoses for his liver mass / lesion, including all differential diagnoses (i.e., from October 2012 to the present). (b.) As to each current diagnosis, is it at least as likely as not (50 percent probability or more) that the condition had its onset during active duty service? Please expressly consider the Veteran’s conceded exposure to herbicide agents during active service in Vietnam during the Vietnam Era (despite whether this is a presumptively service-connected condition). (c.) As to each current liver mass / lesion diagnosis, is it a “disease” or an “injury”? (d.) ONLY ANSWER THIS QUESTION IF APRIL 1982 RESERVE SERVICE WAS ACDUTRA - Is it at least as likely as not (50 percent probability or more) that the Veteran was disabled from a disease or an injury incurred in or aggravated in the line of duty? Please expressly consider the Veteran’s conceded diagnosis of and hospitalization for hepatitis “non-A / non-B” during April 1982 Reserve duty. See statement by Dr. J.K. Cherry received in November 2014 (physician who admitted Veteran to hospital in April 1982; explained he [Dr. Cherry] served in Veteran’s unit when Veteran, another fellow unit member, and Dr. Cherry himself each were treated for and/or diagnosed with hepatitis “non-A / non-B” around the same period in April 1982); multiple Reserve service treatment records documenting Veteran’s consistent reports of April 1982 hospitalization for hepatitis. (e.) ONLY ANSWER THIS QUESTION IF APRIL 1982 RESERVE SERVICE WAS INACDUTRA - Is it at least as likely as not (50 percent probability or more) that the Veteran was disabled from an injury incurred or aggravated in line of duty? Please expressly consider the Veteran’s conceded diagnosis of and hospitalization for hepatitis “non-A / non-B” during April 1982 Reserve duty. See statement by Dr. J.K. Cherry received in November 2014 (summarized above). MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Janofsky, Associate Counsel