97-07 964

Citation Nr: 1101581

Decision Date: 01/13/11 Archive Date: 01/20/11

DOCKET NO. 97-07 964 ) DATE

)

)

On appeal from the

Department of Veterans Affairs Regional Office in St. Louis,

Missouri

THE ISSUES

1. Entitlement to service connection for hepatitis C.

2. Entitlement to an effective date prior to March 20, 2007 for

the grant of service connection for prostate cancer.

REPRESENTATION

Appellant represented by: Virginia A. Girard-Brady,

Attorney at Law

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

C. M. Powell, Counsel

INTRODUCTION

The Veteran had active service from February 1970 to August 1971.

These matters come to the Board of Veterans' Appeals (Board) on

appeal from two rating decisions of the St. Louis, Missouri,

Regional Office (RO) of the Department of Veterans Affairs (VA).

In an April 2005 rating decision, the RO denied service

connection for hepatitis C. The Veteran perfected an appeal as

to the RO's decision and in August 2008, the Board remanded the

issue for further development. The requested development has

been completed and the issue is again before the Board for

further appellate consideration.

In a May 2007 rating decision, the RO granted service connection

for prostate cancer and assigned a 100 percent rating, effective

March 20, 2007. The Veteran perfected an appeal as to the

effective date assigned. However, the Board affirmed the

effective date assigned by the RO in a decision dated in August

2008. The Veteran appealed the August 2008 Board decision to the

United States Court of Appeals for Veterans Claims (Court), which

in an January 11, 2010 Order, granted a Joint Motion for Partial

Remand of the case to the Board. The Board notes that the motion

only pertained to the claim for entitlement to an effective date

earlier than March 20, 2007 for the grant of service connection

for prostate cancer and that the Veteran expressly abandoned his

appeal for those portions of the Board decision that denied

entitlement to an effective date prior to May 13, 2004 for a 60

percent rating for bronchial asthma and the propriety of the

reduction of compensation due to incarceration. Although not

specifically stated in the Court's Order, such Remand action

serves to vacate that portion of August 2008 Board decision that

denied entitlement to an effective date earlier than March 20,

2007 for the grant of service connection for prostate cancer .

In March 2008, the Veteran testified at a personal hearing before

the undersigned Veterans Law Judge with respect to the issues on

appeal. A transcript of that hearing has been associated with

the claims file.

The issue of entitlement to an effective date prior to March 20,

2007 for the grant of service connection for prostate cancer is

addressed in the REMAND portion of the decision below and is

REMANDED to the RO via the Appeals Management Center (AMC), in

Washington, DC.

FINDING OF FACT

An etiological relationship between the Veteran's hepatitis C and

air gun injector inoculations in active service has been shown to

be biologically plausible, and such etiology has not been

definitively excluded by competent medical evidence of record.

CONCLUSION OF LAW

Hepatitis C was incurred in active service. 38 U.S.C.A. §§ 1110,

5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2010).

REASONS AND BASES FOR FINDING AND CONCLUSION

VCAA

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's

duty to notify and assist claimants in substantiating a claim for

VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126

(West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and

3.326(a) (2010).

Upon receipt of a complete or substantially complete application

for benefits, VA is required to notify the claimant and his or

her representative, if any, of any information, and any medical

or lay evidence, that is necessary to substantiate the claim. 38

U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2010);

Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA

notice must inform the claimant of any information and evidence

not of record (1) that is necessary to substantiate the claim;

(2) that VA will seek to provide; and (3) that the claimant is

expected to provide in accordance with 38 C.F.R. § 3.159(b)(1).

VCAA notice should be provided to a claimant before the initial

unfavorable agency of original jurisdiction (AOJ) decision on a

claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also

Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

Further regarding notice, on March 3, 2006, the United States

Court of Appeals for Veterans Claims (Court) issued its decision

in the consolidated appeal of Dingess/Hartman v. Nicholson, 19

Vet. App. 473 (2006). The Court in Dingess/Hartman holds that

the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R.

§ 3.159(b) apply to all five elements of a "service connection"

claim. As previously defined by the courts, those five elements

include: (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. Upon receipt of an application for "service

connection," therefore, the Department of Veterans Affairs (VA)

is required to review the information and the evidence presented

with the claim and to provide the claimant with notice of what

information and evidence not previously provided, if any, will

assist in substantiating or is necessary to substantiate the

elements of the claim as reasonably contemplated by the

application. This includes notice that a disability rating and

an effective date for the award of benefits will be assigned in

the award of the benefit sought.

With respect to the issue on appeal, the agency of original

jurisdiction (AOJ), issued VCAA notice letters to the appellant

in June 2004 and March 2006 that informed him of what evidence

was required to substantiate the claim and of his and VA's

respective duties for obtaining evidence and notified him of the

elements for consideration in the assignment of a disability

rating and/or effective date in the event of award of the benefit

sought, per Dingess/Hartman.

In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the U.S. Court

of Appeals for Veterans Claims held, in part, that a VCAA notice,

as required by 38 U.S.C.A. § 5103(a), must be provided to a

claimant before the initial unfavorable agency of original

jurisdiction (AOJ) decision on a claim for VA benefits. In the

present case, complete VCAA notification was not achieved until

after the initial AOJ adjudication of the claim. Nevertheless,

the Court in Pelegrini noted that such requirement did not render

a rating decision promulgated prior to providing the veteran full

VCAA notice void ab initio, which in turn would nullify the

notice of disagreement and substantive appeal filed by the

veteran. In other words, Pelegrini specifically noted that there

was no requirement that the entire rating process be reinitiated

from the very beginning. Rather, the claimant should be provided

VCAA notice and an appropriate amount of time to respond and

proper subsequent VA process.

Here, the Board finds that any defect with respect to the timing

of any VCAA notice letter was harmless error. Although the

notice was provided to the appellant after the initial

adjudication, the case was readjudicated thereafter, and the

appellant has not been prejudiced thereby. The content of the

notice provided to the appellant fully complied with the

requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)

regarding VA's duty to notify. Not only has the appellant been

provided with every opportunity to submit evidence and argument

in support of his claim and to respond to VA notices, but the

actions taken by VA have essentially cured the error in the

timing of notice. Further, the Board finds that the purpose

behind the notice requirement has been satisfied because the

appellant has been afforded a meaningful opportunity to

participate effectively in the processing of his claim. For

these reasons, it is not prejudicial to the appellant for the

Board to proceed to finally decide this appeal.

With regard to the duty to assist, the claims file contains the

Veteran's service treatment records, private treatment records,

and a report of VA examination. Additionally, the claims file

contains the Veteran's statements in support of his claim. The

Board has carefully reviewed such statements and concludes that

he has not identified further evidence not already of record.

The Board has also perused the medical records for references to

additional treatment reports not of record, but has found nothing

to suggest that there is any outstanding evidence with respect to

the Veteran's claim.

A VA examination and opinion with respect to the issue on appeal

was obtained. 38 C.F.R. § 3.159(c) (4). To that end, when VA

undertakes to provide a VA examination or obtain a VA opinion, it

must ensure that the examination or opinion is adequate. Barr v.

Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that

the VA examination and opinion obtained in this case is more than

adequate, as it is based on detailed and thorough physical

examination and the examiner provided a well-supported rationale

for his stated opinion. Nieves-Rodriguez v. Peake, 22 Vet App

295 (2008). Accordingly, the Board finds that VA's duty to

assist with respect to obtaining a VA examination and opinion

with respect to the issue on appeal has been met. 38 C.F.R.

§ 3.159(c) (4).

Thus, based on the foregoing, the Board finds that all relevant

facts have been properly and sufficiently developed in this

appeal and no further development is required to comply with the

duty to assist the Veteran in developing the facts pertinent to

his claims. Essentially, all available evidence that could

substantiate the claim has been obtained.

Legal Criteria

The Board has reviewed all of the evidence in the Veteran's

claims folder. Although the Board has an obligation to provide

reasons and bases supporting this decision, there is no need to

discuss, in detail, the extensive evidence of record. Indeed,

the Federal Circuit has held that the Board must review the

entire record, but does not have to discuss each piece of

evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir.

2000). Therefore, the Board will summarize the relevant evidence

where appropriate, and the Board's analysis below will focus

specifically on what the evidence shows, or fails to show, as to

the claim.

The standard of proof to be applied in decisions on claims for

veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West

2002). A veteran is entitled to the benefit of the doubt when

there is an approximate balance of positive and negative

evidence. See 38 C.F.R. § 3.102 (2009). When a veteran seeks

benefits and the evidence is in relative equipoise, the veteran

prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The

preponderance of the evidence must be against the claim for

benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518

(1996).

Service connection may be granted for disability resulting from

disease or injury incurred in or aggravated by active service.

38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304

(2010).

Regulations also provide that service connection may 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) (2010).

Present disability resulting from disease or injury in service is

required to establish entitlement to service connection.

Degmetich v. Brown, 104 F. 3d 1328 (Fed. Cir. 1997). To

establish service connection for a disability, there must be

competent evidence of a current disability (medical diagnosis),

of incurrence or aggravation of a disease or injury in service

(lay or medical evidence), and of a nexus between the in-service

injury or disease and the current disability (medical evidence).

Caluza v. Brown, 7 Vet. App. 498, 507 (1995).

The isolated and infrequent use of drugs by itself will not be

considered willful misconduct; however, the progressive and

frequent use of drugs to the point of addiction will be

considered willful misconduct. Where drugs are used to enjoy or

experience their effects and the effects result proximately and

immediately in disability or death, such disability or death will

be considered the result of the person's willful misconduct.

Organic diseases and disabilities which are a secondary result of

the chronic use of drugs and infections coinciding with the

injection of drugs will not be considered of willful misconduct

origin. (See 38 C.F.R. § 3.301(d) regarding service connection

where disability or death is a result of abuse of drugs.) Where

drugs are used for therapeutic purposes or where use of drugs or

addiction thereto, results from a service-connected disability,

it will not be considered of misconduct origin. 38 C.F.R. §

3.301(c)(3).

An injury or disease incurred during active military, naval, or

air service shall not be deemed to have been incurred in line of

duty if such injury or disease was a result of the abuse of

alcohol or drugs by the person on whose service benefits are

claimed. For the purpose of this paragraph, alcohol abuse means

the use of alcoholic beverages over time, or such excessive use

at any one time, sufficient to cause disability to or death of

the user; drug abuse means the use of illegal drugs (including

prescription drugs that are illegally or illicitly obtained), the

intentional use of prescription or non-prescription drugs for a

purpose other than the medically intended use, or the use of

substances other than alcohol to enjoy their intoxicating

effects. 38 C.F.R. § 3.301(d). See also 38 U.S.C.A. § 105; 38

C.F.R. §§ 3.1(m) (2002). VA's General Counsel has confirmed that

direct service connection for a disability that is a result of a

claimant's own abuse of alcohol or drugs is precluded for

purposes of all VA benefits for claims filed after October 31,

1990. See VAOPGCPREC 7-99 (1999), published at 64 Fed. Reg.

52,375 (June 9, 1999); VAOPGCPREC 2-98 (1998), published at 63

Fed. Reg. 31,263 (February 10, 1998).

Legal Analysis

The Veteran asserts that service connection is warranted for

hepatitis C. In order to establish service connection on a

direct-incurrence basis, the Veteran must provide evidence of a

current disability, an in-service injury or disease, and a nexus

between the current disability, and an in-service injury or

disease. With respect to a current disability, post-service

treatment records show that the Veteran has been diagnosed with,

and treated for, hepatitis C since 2003. With respect to an in-

service injury or disease, the Veteran contends that he was

exposed to blood (a hepatitis C risk factor) in service as a

result of being immunized with an injector air gun while at Ft.

Leonardwood, Missouri. (Transcript (T.) at page (pg.) 16-17.)

The Veteran's service treatment records indeed show that he was

immunized on numerous occasions between 1970 and 1971. He also

contends that he displayed hepatitis C symptoms while in service.

(Transcript (T.) at page (pg.) 18-20.)

The Board notes that the record reflects that the Veteran has

referenced hepatitis C risk factors other than exposure to blood

during immunization in service. For example on a hepatitis

questionnaire that he submitted in June 2004, the Veteran

indicated that he had shared toothbrushes or razor blades.

However, the record does not show that the Veteran has alleged

that he shared toothbrushes or razor blades during service.

Additionally, the record demonstrates that the Veteran has a

history of drug abuse. Specifically, a December 1990 clinic note

from the Texas Department of Corrections shows that drug use was

a chronic illness or disability. Further, during his March 2008

Travel Board hearing, the Veteran reported a history of

intravenous drug use. (Transcript (T.) at page (pg.) 21.)

However, the competent evidence of record does not show that the

Veteran ever used drugs during service.

With respect to the etiology of the Veteran's hepatitis C, in

October 2008, a VA examiner, after an examination of the Veteran

and a review of his claims file, opined that it was less likely

than not that the Veteran's hepatitis C was service-related. In

reaching this conclusion the examiner noted that:

Certain factors go against the Veteran's

hepatitis C being related to his service.

There was a greater than 30 years interval

between the possible exposure and the

diagnosis of hepatitis C. During this

interval, there was no indication that the

Veteran had hepatitis C. As noted above,

multiple liver function tests were normal.

There is evidence that during these 30

years, the Veteran was constantly receiving

medical attention. In the BVA hearings,

the Veteran has admitted that he has used

drugs intravenously and also has used

cocaine by nasal inhalation. At the

present time, there is no presumption of

regular transmission of hepatitis C by jet

air injections either by the Veteran's

Administration or the Department of

Defense.

However, the October 2008 VA examiner further stated that a

relationship between the Veteran's hepatitis C and air gun

injections in service cannot be excluded without resorting to

speculation. Such clinical statements lend toward an

interpretation that it is biologically plausible that the

Veteran's hepatitis C was transmitted in service by air gun

injector inoculations.

The Board notes that to the extent that the October 2008 VA

examiner suggests that the Veteran's hepatitis C is due to drug

use, 38 U.S.C.A. § 1110 states that "no compensation shall be

paid if the disability is the result of the person's own willful

misconduct or abuse of alcohol or drugs." See also 38 C.F.R. §

3.1(n), 3.301. Thus, the law clearly states that for claims

filed after October 31, 1990, direct service connection for

disability that is a result of the claimant's own use of drugs is

precluded for purposes of all VA benefits. See 38 C.F.R. §

3.301(a).

In adjudicating a claim, including as to continuity of

symptomatology, the Board must assess the competence and

credibility of the veteran. See Buchanan v. Nicholson, 451 F.3d

1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362,

368-69 (2005). The Board also has a duty to assess the

credibility and weight given to evidence. Madden v. Gober, 125

F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet.

App. 362, 367 (2001). Although the Veteran asserts that his

current hepatitis C is related to service, he is not competent to

provide an opinion requiring medical knowledge, such as a

question of medical causation. Espiritu v. Derwinski, 2 Vet.

App. 492 (1992). However, he is competent to give evidence about

what he experienced; for example, he is competent to report that

he experienced certain symptomatology in service- i.e. fatigue

and dark brown urine. See, e.g., Layno v. Brown, 6 Vet. App. 465

(1994). The Board acknowledges that it cannot determine that lay

evidence lacks credibility merely because it is unaccompanied by

contemporaneous medical evidence. See Buchanan v. Nicholson, 451

F.3d 1331, 1337 (Fed. Cir. 2006). However, such lack of

contemporaneous evidence is for consideration in determining

credibility. In this case, the Veteran's service treatment

records are devoid of objective evidence (including on laboratory

testing) of hepatitis C in service. However, at the time of the

Veteran's military service in 1970 and 1971, a test for

antibodies of hepatitis C was not available. The Board

acknowledges that the October 2008 VA examiner indicated that

there was no indication that the Veteran had hepatitis C in the

more than 30 year interval between the possible exposure and the

diagnosis of hepatitis C and that multiple liver function tests

were normal. However, it is observed that the record does not

establish that a test of the Veteran for antibodies of hepatitis

C had been made prior to 2003.

In summary, the evidence of record establishes that the Veteran

received inoculations by air gun injectors in service, a VA

examiner's statement in October 2008 may be interpreted as

establishing that it is biologically plausible for the Veteran's

hepatitis C to have been transmitted by air gun injectors in

service, and such relationship has not been definitively excluded

by competent clinical evidence of record. As such, the Board

finds that the evidence of record is in equipoise as to the issue

on appeal. With resolution of doubt in the Veteran's favor, the

Board finds that the evidence of record supports service

connection for hepatitis C. 38 U.S.C.A. § 5107 (West 2002);

38 C.F.R. § 3.102 (2010.

ORDER

Entitlement to service connection for hepatitis C is granted.

REMAND

VA must make reasonable efforts to assist the veteran in

obtaining evidence necessary to substantiate the claim for the

benefit sought unless no reasonable possibility exists that such

assistance would aid in substantiating the claim. 38 U.S.C.A. §

5103A(a)(West 2002); 38 C.F.R. § 3.159(c)(d) (2010). Such

assistance shall include providing a medical examination or

obtaining a medical opinion when such an examination or opinion

is necessary to make a decision on the claim. 38 U.S.C.A. §

5103A(d)(West 2002); 38 C.F.R. § 3.159(c)(4) (2010).

The Veteran asserts that an effective date earlier than March 20,

2007 is warranted for the grant of service connection for

prostate cancer. The record reflects that the March 20, 2007

effective date was assigned because it was the date that a VA

pathology report showed a diagnosis of adenocarcinoma of the

prostate. However, although the record shows that the Veteran

may have been first diagnosed with prostate cancer in the March

20, 2007 VA pathology report, private treatment records

(including laboratory test reports) show that the Veteran had

elevated PSA levels that ranged between 5.7 to 7.6 ng/mL on

several occasions between 2002 and 2004. Nevertheless, the

record does not demonstrate that the Veteran has been provided a

VA opinion to determine the clinical significance of such

findings and to determine if such findings were, in fact,

manifestations of the Veteran's prostate cancer. Therefore,

because this case presents certain medical questions which cannot

be answered by the Board, the Board finds that a VA opinion is

warranted to determine whether it is at least as likely as not

that the Veteran's elevated PSA levels found in private treatment

records dated between 2002 and 2004 were manifestations of his

current prostate cancer. See Colvin v. Derwinski, 1 Vet. App.

191, 175 (1999) [the Board is prohibited from exercising its own

independent judgment to resolve medical questions].

Accordingly, the case is REMANDED for the following action:

1. Contact the Veteran and request that he

furnish the names, addresses, and dates of

treatment of all medical providers from

whom he has received treatment for a

prostate disability, to include elevated

PSA levels and prostate cancer, since his

military service. After securing the

necessary authorizations for release of

this information, seek to obtain copies of

all treatment records referred to by the

Veteran, not already of record.

2. Following completion of the above,

including affording the appropriate period

for response, the Veteran's claims file

should be forwarded to the appropriate VA

clinician who should provide an opinion as

to the date of onset of the Veteran's

prostate cancer. The examiner should

specifically be requested to comment on the

clinical significance of the elevated PSA

levels (between 5.7 to 7.6 ng/mL) reported

in private treatment records dated between

2002 and 2004. The examiner should also be

requested to furnish an opinion concerning

whether it is at least as likely as not

that any such elevated PSA levels were

manifestations of the prostate cancer that

the Veteran was diagnosed with in a March

20, 2007 VA pathology report. If it is

found that the elevated PSA levels were

manifestations of prostate cancer, the

examiner should also indicate what specific

date represented the earliest manifestation

of the Veteran's prostate cancer.

The rationale for all opinions expressed

should be set forth. All necessary tests

should be performed. The claims file and a

separate copy of this remand must be made

available to and reviewed by the examiner

prior, and pursuant, to conduction and

completion of the examination. The

examiner must annotate the examination

report that the claims file was in fact

made available for review in conjunction

with the examination.

3. Following completion of the above,

readjudicate the issue on appeal. If the

benefit sought on appeal is not granted,

the Veteran and his attorney should be

furnished an appropriate Supplemental

Statement of the Case and be provided an

opportunity to respond.

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).

_____________________________________________

U. R. POWELL

Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs