Citation Nr: 0000705 Decision Date: 01/10/00 Archive Date: 01/19/00 DOCKET NO. 98-20 752 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to service connection for a liver transplant. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Cryan, Associate Counsel INTRODUCTION The veteran had active service from November 1972 to November 1975. This case is before the Board of Veterans' Appeals (Board) on appeal from a September 1998 rating decision by the Winston- Salem, North Carolina Regional Office (RO) of the Department of Veterans Affairs (VA). The veteran testified at a Video Conference hearing before a member of the Board in November 1999. FINDINGS OF FACT There is no competent medical evidence of a nexus between the veteran's currently diagnosed hepatitis and service. CONCLUSION OF LAW The claim of service connection for a liver transplant is not well-grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this case, the veteran contends that he has the hepatitis virus to which he was exposed during service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1999). The threshold question which the Board must address in this case is whether the appellant has presented a well-grounded claim. A well-grounded claim is one which is plausible. If he has not, the claim must fail and there is no further duty to assist in the development of the claim. 38 U.S.C.A. § 5107 (West 1991); Murphy v. Derwinski, 1 Vet. App. 78 (1990). This requirement has been reaffirmed by the United States Court of Appeals for the Federal Circuit, in its decision in Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). That decision upheld the earlier decision of the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter "the Court") which made clear that it would be error for the Board to proceed to the merits of a claim which is not well grounded. Epps v. Brown, 9 Vet. App. 341 (1996). The United States Supreme Court declined to review that case. Epps v. West, 118 S. Ct. 2348 (1998). The veteran has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim is well-grounded. 38 U.S.C.A. § 5107(a) (West 1991). The Court, in Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996), outlined a three prong test which established whether a claim is well-grounded. The Court stated that in order for a claim to be well-grounded, there must be competent evidence of a current disability (a 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). The Court has also stated that a claim must be accompanied by supporting evidence; an allegation is not enough. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). A claim is not well- grounded where a claimant has not submitted any evidence of symptomatology of a chronic disease within the presumptive period, continuity of symptomatology after service, or other evidence supporting direct service connection. Harvey v. Principi, 3 Vet. App. 343 (1992). Evidentiary assertions by the veteran must be accepted as true for the purposes of determining whether a claim is well- grounded, except where the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19, 21 (1993). The Board notes, however, that inasmuch as the veteran is offering his own medical opinion and diagnoses, the record does not indicate that he has any professional medical expertise. See Bostain v. West, 11 Vet. App. 124, 127 (1998) ("lay testimony . . . is not competent to establish, and therefore not probative of, a medical nexus"); Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"), aff'd sub nom. Routen v. West, 142 F.3d 1434 (1998). See also Espiritu v. Derwinski, 2 Vet. App. 492 (1992); Moray v. Brown, 5 Vet. App. 211 (1993); Grottveit v. Brown, 5 Vet. App. 91 (1993). Further, although the veteran asserts that he was exposed to the hepatitis virus during service, this assertion does not make the claim well-grounded if there is no competent medical evidence of record of a nexus between any disability in service and his alleged current disability. See Savage v. Gober, 10 Vet. App. 489 (1997); Heuer v. Brown, 7 Vet. App. at 387 (1995) (lay evidence of continuity of symptomatology does not satisfy the requirement of competent medical evidence showing a nexus between the current condition and service). As such, the Board will review the record to assess whether all three of the criteria of Caluza are met and the veteran's assertions are supported by the evidence of record. The service medical records indicate that the veteran had contact with a viral hepatitis patient in May 1974. There is no record of treatment for hepatitis in service, and the veteran's discharge examination is negative for any findings or diagnosis of hepatitis. The veteran's post-service medical records show that the veteran underwent a liver transplant in 1995 for hepatitis C infection. The veteran had a recurrence of hepatitis C and cirrhosis, and required a subsequent transplant in 1998. The veteran's physician, James F. Trotter, M.D. sent a statement to the RO in October 1998 regarding the veteran's medical history of hepatitis. Specifically, Dr. Trotter stated that the veteran had been treated for several years at Duke University for hepatitis C. Dr. Trotter stated that he did not know how the veteran contracted the hepatitis virus. The veteran did not have any of the known risk factors such as a history of blood transfusions or intravenous drug use. Dr. Trotter indicated that according to the natural course of the disease process, the veteran probably contracted it twenty to thirty years prior to progressing to cirrhosis. The veteran's first liver biopsy at Duke was performed in September 1993, at which time cirrhosis was revealed. In March 1999, the RO requested a medical opinion from the Chief Medical Officer at the Winston-Salem VA Medical Center's outpatient clinic. Specifically, the Chief Medical Officer was asked to provide a medical opinion as to whether the veteran's current liver problems, in include liver transplant, could be related "without speculation" to his contact with a viral hepatitis patient in 1974 while he was in service. In an April 1999 response, the Coordinator of Administrative Medicine at the Winston-Salem VA Medical Center stated that the veteran's C-File was reviewed, and although he agreed with Dr. Trotter's comments of October 1998, it nonetheless, could not be stated, without speculation, that the veteran's present condition is the result of his exposure to a case of viral hepatitis in 1974. In support of his claim for service connection, the veteran submitted evidence regarding the hepatitis virus, generally, as well as documents referring to well-grounded claims for hepatitis. The Board notes that the veteran did not submit any additional medical evidence specific to his case/disability. The veteran testified before a member of the Board via video conference in November 1999. At that time, the veteran testified that he was quarantined for a week as a result of a hepatitis outbreak during service in 1974. The veteran testified that he shared razor blades, C-rations and other personal items with other soldiers in the field. The veteran testified that he did not have any surgery in service, nor did he have any type of a blood transfusion. The veteran was not an intravenous drug user. The veteran also testified that he first learned of his cirrhosis of the liver in 1991. The veteran testified that he did not serve in Vietnam, but rather served overseas in the European theater. The Board notes, however, that according to the veteran's Form DD-214, he did not have any foreign or sea service. In sum, the service medical records showed that the veteran was in contact with viral hepatitis, but there is no indication that he contracted hepatitis in service. His post-service medical records clearly show that the veteran's current liver disability, to include cirrhosis and hepatitis C had its onset after the veteran's discharge from service. Although the veteran's liver transplant surgeon indicated that the veteran may have contracted the hepatitis virus 20 to 30 years prior to progressing to cirrhosis based on the natural course of the disease generally, there is no medical evidence specific to the veteran which would suggest that his current disability is related to service. Moreover, the April 1999 VA medical opinion indicated that it could not be stated, without speculation, that the veteran's present condition was the result of his exposure to a case of viral hepatitis in 1974. Although there is some evidence containing a general discussion regarding the etiology of hepatitis, there is no medical evidence, specific to the veteran, showing that there is any relationship whatsoever between the veteran's service and his two liver transplants, diagnosed hepatitis, and/or cirrhosis. Thus, as there is no competent medical evidence establishing a nexus between the current diagnosis of hepatitis and service, all of the criteria of Caluza have not been met. As such, the claim for service connection for a liver transplant is not well- grounded. Since the veteran's claim is not well-grounded, he cannot invoke the VA's duty to assist in the development of the claim under 38 U.S.C.A. § 5107(a) (West 1991). Grivois v. Brown, 6 Vet. App. 136 (1994). In claims that are not well-grounded, the VA does not have a statutory duty to assist a claimant in developing facts pertinent to his claim. However, the VA may be obligated under 38 U.S.C.A. § 5103(a) (West 1991) to advise a claimant of evidence needed to complete his application. This obligation depends upon the particular facts of the case and the extent to which the Secretary of the Department of Veterans Affairs has advised the claimant of the evidence necessary to be submitted with a VA benefits claim. Robinette v. Brown, 8 Vet. App. 69 (1995). A review of the correspondence in this case, to include the statement of the case shows that the RO fulfilled its obligation under 38 U.S.C.A. § 5103(a) (West 1991) as the veteran was fully informed of the reason for the denial of his claim and was advised of what evidence was needed in order to support his claim. ORDER The appeal as to the issue of entitlement to service connection for a liver transplant is denied as not well- grounded. LAWRENCE M. SULLIVAN Member, Board of Veterans' Appeals