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BVA Decision-6/30/2006

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Category: What NOT to do filing a VA claim
Date: 09/10/08

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Citation Nr: 0618424 Decision Date: 06/22/06 Archive Date: 06/30/06 DOCKET NO. 00-11 430 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse INTRODUCTION The veteran served on active duty from June 1968 to August 1969. He served in the Oklahoma National Guard from January to May 1964, and on active duty for training from May to November 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2000 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, wherein the RO denied service connection for hepatitis C. The veteran timely appealed this determination to the Board. Most recently, in January 2004, the Board remanded the veteran's claim to the RO for additional development. The requested development has been completed and the case is ready for appellate review. FINDING OF FACT Hepatitis C was not present in service, nor may currently identified hepatitis C be attributed to the veteran's military service. CONCLUSION OF LAW Hepatitis C was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2005). The Board observes that the RO apprised the veteran of VA's duties to both notify and assist in correspondence, dated in March 2004 and January 2005 in letter. In particular, the letters informed the veteran that to substantiate his claim for service connection for hepatitis C, he must demonstrate that he has a current diagnosis that is related to service. The veteran was instructed to submit or identify evidence relevant to his claim, to include a statement from a doctor, private or VA. The letter advised the veteran that VA must make reasonable efforts to assist him in getting evidence, including service medical records, VA out-patient treatment records and examination reports, or relevant records held by any government agencies. The veteran was told that it was his responsibility to submit all records not in the possession of a Federal agency, which includes records in his possession. In addition, supplemental statement of the cases, issued by the RO in December 2005 and February 2006, informed the veteran of the laws and regulations governing service connection claims, and the basis for the denial of the hepatitis C claim. These documents also specifically informed the veteran of the cumulative information and evidence previously submitted to, or obtained by, VA on the veteran's behalf. III. Factual Background The veteran maintains that his current hepatitis C had its onset during service. He contends that a physician told him that he had jaundice as a child and that he had an illness during his service. While the veteran has denied having undergone blood transfusions and using intravenous drugs, he admits that he got a tattoo at the age of 14 years. The veteran also contends that he might have contracted hepatitis C after he received immunization shots through "air guns" during service. An August 2000 VA fee basis examination report reflects that the appellant related a history of premature birth and jaundice at the age of 12 years; he denied any history of intravenous drug use and did not recall any transfusions. He stated that he was diagnosed with hepatitis C in 1998, which caused him to fatigue easily. Laboratory testing revealed hepatitis C. The diagnoses included hepatitis C based on history. During a June 2001 hearing at the RO in Muskogee, Oklahoma, the veteran testified concerning the onset of his hepatitis C, which is consistent with that previously reported in the decisions herein. In addition, he denied any current treatment for hepatitis C, although he recalled medical professionals discussing the use of Interferon or the need for a liver biopsy. He testified that he had gone to a doctor who diagnosed lichens planus and told him that skin disorder is associated only with hepatitis C. The veteran indicated that he had been granted Social Security disability, and that it was not granted on the basis of hepatitis C. He provided a copy of a November 14, 2000, notice of favorable decision with a decision from the Office of Hearings and Appeals finding the veteran disabled as a result of disabilities other than those here in issue. The veteran's wife testified that the veteran had complications when he had some teeth pulled, and the dentist said he only saw that type of complication in a person who had hepatitis C. In July 2001, the Board received from the appellant's representative additional evidence, including a notice of disability benefits from the Social Security Administration; a declaration of status of dependents; medical treatment records dated September 1998 through June 1999 from Jeff Endsley, D.O (containing a diagnosis of lichen planus, which was noted to have been more difficult to treat when combined with hepatitis C); VA laboratory reports, dated in July and October 1998 (reflecting that a hepatitis C test was not performed in July 1998, and in October 1998, the test was canceled at the request of the doctor); Wagoner Community Hospital laboratory reports, dated in April 2001, for Frederick M. Gise, M.D (showing hepatitis C virus Ab repeatedly reactive and hepatitis C virus Ab, RIBA 3.0 to be positive); and dental treatment records of Thomas Been, D.D.S, which do not contain any reference to hepatitis C. On the contrary, an April 2004 VA physician who reviewed the veteran's entire claims file and medical history, concluded that it was more likely that the veteran's hepatitis was related to his pre- service tattoo and that it was not likely to have had its onset during service or within a year of service discharge. This is the only medical opinion of record specifically addressing the etiology of the veteran's hepatitis C. The Board has found it to be persuasive since it is based on an examination of the veteran and a review of his medical history, and is properly supported. The lack of competent nexus evidence between the veteran's hepatitis C and his military service is a factor that weighs against his claim. Under such circumstances, the Board can not ignore the fact that there is no competent evidence of liver pathology either during service or for quite a few years thereafter. While the veteran has submitted medical literature regarding the risk factors associated with hepatitis C, the Board points out that the medical literature presented by the appellant is general in nature, and does not address the specific situation involving the veteran's condition and a possible link to his period of service. Based on a review of the relevant evidence in this case, and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the veteran's claim for service connection for hepatitis C. The veteran's statements and testimony to the effect that his hepatitis C is etiologically related to his military service are of no probative value since as a lay person he is not competent to provide opinions concerning medical causation. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Unfortunately, the clear weight of the evidence is against the veteran's claim for service connection for hepatitis C and his appeal must be denied. This is what most claims today look like. You have here a vet who went active for a year and basically did stateside service. He claimed to have had hep before service and claimed he was sick in service with hep C as well. He has no medrecs to support his claim. Most importantly the VA asked him to submit evidence that would show his hep was SC, a nexus, something anything. He gave them SSA records that said he was disabled - but not by HCV. Dentist medrecs simply said he was difficult to treat because of hep. Not one bit of evidence he submitted said it was SC and no nexus. He gave them the pics of air guns, the internet stuff, and more. Not one thing said he got hep in service. Most notably, VA was quick to step in with a NEXUS of their own that said it was "not likely" he got it in service and that it was "most likely" due to his tattoo marks which he got before service. So, the VET got HCV when he was 14(in 1964) in Muskogee, Oklahoma from tattoos . It didn't get worse and he was never ill during service. It got worse in 1997 and it has absolutely nothing to do with the VA. The last phrase of the VLJ is very telling of so many VA claims. In essense, what he said is that you the VET, cannot play doctor and diagnose yourself. You cannot repeat what the doctor told you about your illness. You can testify about nothing medical-period. Zip. Zero. NADA. Your VSO should know this. Most don't seem to get it. It's useless. The VLJ will let you sit there and testify until you are blue in the face and then say "Thank you for your testimony today, sir." You get to read about Espiritu vs. Derwinski (CAVC- 1992) and how you wasted your time when they mail this decision back to you 6 months later. This gentleman had a shaky claim to begin with as he freely admits to hep before service. If that is true, the law(38 CFR) say the hep must have gotton worse in service or that service made the hep worse medically. He also would need a doctor to state that in a nexus letter. He tried to make a case with the jet guns but his doctor didn't mention that. This claim mirrors lots of others you will read. I hope this helps more VETS get educated on this process and get the win ratio up to 50% successful.

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