Citation Nr: 0001272 Decision Date: 01/14/00 Archive Date: 01/27/00 DOCKET NO. 95-37 144A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for hepatitis C and cirrhosis of the liver, claimed as secondary to Agent Orange exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N.J. Ferrante, Associate Counsel INTRODUCTION The veteran served on active duty from July 1969 to July 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Oakland, California Regional Office (RO) of the Department of Veterans Affairs (VA). The veteran is currently service connected for post-traumatic stress disorder (PTSD) and assigned a 100 percent evaluation. FINDINGS OF FACT 1. There is no evidence of record which demonstrates that the veteran had hepatitis C or cirrhosis during active duty or that tends to show that the veteran's currently diagnosed hepatitis C or cirrhosis of the liver is related to his military service, including any exposure to herbicide agents in service. 2. There is no evidence of record which demonstrates that the veteran's cirrhosis of the liver manifested to a compensable degree within one year of separation from active military service. CONCLUSION OF LAW The veteran has not submitted evidence of a well-grounded claim for service connection for hepatitis C and cirrhosis of the liver. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background Service medical records show that the veteran provided a positive response regarding a history of stomach, liver or intestinal trouble at his separation examination. The examiner's notes indicate a history of occasional epigastric distress. Service medical records also contain results of a chemical profile test which is dated in June but no year is indicated. All results, including those relevant to liver function, were within normal limits. Also of record is a Health Record - Abstract of Service which indicates that some of the veteran's service medical records were lost in Vietnam. A private hospital discharge summary from July 1982 indicates that the veteran's history included alcohol and substance abuse. VA clinical records from September and November 1982 showed recent slightly elevated liver function tests. Subsequent notes indicated positive hepatitis B core tests and noted treatment for jaundice in Vietnam, although the source of the history is unclear. The impression is hyper-transaminase. The veteran filed his original claim for service connection for liver problems in December 1982. Minimally elevated liver function tests and a positive hepatitis B core test was again noted in March 1983. The veteran underwent a May 1983 VA examination which included a diagnosis of hepatic dysfunction - etiology unclear? Alcohol related. A November 1986 VA psychiatric examination found that the veteran had a "very severe" alcohol problem which was kept in check with medication. Reports of subsequent VA examinations afforded the veteran noted continuing alcohol dependency and abuse, and at least one incident of intravenous drug use which the veteran described as a suicide attempt. Private hospital records from December 1991 show that the veteran received inpatient treatment including esophagogastroduodenoscopy (EGD). Among the discharge diagnoses was cirrhosis with ascites probably secondary to chronic hepatitis C. Etiology not definitely established. Subsequent private medical records from A.H.K., M.D. suggested that cirrhosis was most likely due to hepatitis C. A February 1992 record from A.H.K., M.D. noted no known risk factors, although the veteran may have used drugs or may have had exposure to hepatitis during the Vietnam Conflict. At a follow-up visit the veteran was scheduled to have an EGD and sclerotherapy, however the procedures were canceled because the veteran had a blood alcohol level of 0.05%. At that time the veteran was counseled that he should not use alcohol for the rest of his life. The veteran applied to reopen his claim for service connection for hepatitis C in September 1992. In October 1992 the veteran submitted a VA Form 21-4138 which included the statement that he had never had a blood transfusion prion to December 1991. The RO denied service connection for hepatitis C with cirrhosis in May 1993 and October 1994. In February 1995 the veteran submitted materials in support of his claim. Included was a copy of published letter to the editor from the November 1979 issue of The Journal of the American Medical Association which summarized a study wherein hepatitis was reported in 10 percent of the participants who were Vietnam veterans claiming exposure to Agent Orange. Also submitted was a copy of a footnote from the book A Bitter Fog; Herbicides and Human Rights by Carol Van Strum. The footnote is a summary of study results outlined in the previously mentioned letter to the editor. September 1997 clinical records from the San Francisco VA Medical Center (MC) describe the veteran as a 46 year old male with chronic hepatitis C virus/alcohol cirrhosis. The veteran's representative submitted a March 1998 letter which contended that the veteran contracted hepatitis C as a result of a blood transfusion received while he was on active duty. In a July 1998 statement in support of his case the veteran took the position that his liver illness was the result of exposure to both Agent Orange and contaminated blood. In October 1998 the veteran was granted a hearing at the RO. The veteran testified that while in Vietnam in 1969, he was inserted into a landing zone which had just been sprayed with defoliant when he began bleeding from the nose and vomiting blood. He was taken to the battalion aid station where he received a pint of blood. The veteran contended that the initial exposure to Agent Orange, combined with the subsequent transfusion which he believed was tainted with hepatitis, as well as living in the North highlands of Vietnam, resulted in him contracting hepatitis C. See transcript, p.2. The veteran's position was that his hepatitis was a rare tropical form of the disease, and infection must have occurred in Vietnam. Tr. at p. 4. The remainder of the testimony was consistent with evidence previously of record. Analysis The threshold question that must be resolved with regard to a claim is whether the veteran has presented evidence of a well-grounded claim. See 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). A well-grounded claim is a plausible claim that is meritorious on its own or capable of substantiation. Murphy at 81. An allegation of a disorder that is service connected is not sufficient; the veteran must submit evidence in support of a claim that would "justify a belief by a fair and impartial individual that the claim is plausible." See 38 U.S.C.A. § 5107(a); Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). The quality and quantity of the evidence required to meet this statutory burden of necessity will depend upon the issue presented by the claim. Grottveit v. Brown, 5 Vet.App. 91, 92-93 (1993). 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). Caluza v. Brown, 7 Vet.App. 498 (1995). Where the determinant issue involves a question of medical diagnosis or medical causation, competent medical evidence to the effect that the claim is plausible or possible is required to establish a well-grounded claim. Grottveit at 93. Lay assertions of medical causation cannot constitute evidence to render a claim well grounded under 38 U.S.C.A. § 5107(a); if no cognizable evidence is submitted to support a claim, the claim cannot be well grounded. Id. Accordingly, to establish a well-grounded claim, there must be competent evidence of incurrence or aggravation of a disease or injury in service, of a current disability and of a nexus between the inservice injury or disease and the current disability. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Certain chronic diseases, including cirrhosis of the liver may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991): 38 C.F.R. §§ 3.307, 3.309. In addition, regulations pertaining to Agent Orange exposure, now expanded to include all herbicides used in Vietnam, provide for a presumption of exposure to herbicide agents for veterans who served on active duty in Vietnam during the Vietnam era and have a disability listed in 38 C.F.R. § 3.309(e). 38 C.F.R. § 3.307(a)(6)(iii). These regulations also stipulate the diseases for which service connection may be presumed due to an association with exposure to herbicide agents. The specified disease shall have become manifest to a degree of 10 percent or more at any time after service, except that acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military service. 38 C.F.R. §§ 3.307, 3.309. With regard to presumptive service connection for hepatitis C and cirrhosis of the liver, the Board notes that the earliest diagnosis of cirrhosis was several years after the veteran's period of active duty. Further, although the veteran's period of service included a tour of duty in Vietnam during the Vietnam era, neither hepatitis nor cirrhosis is among the diseases listed at 38 C.F.R. § 3.309(e). Accordingly, presumptive service connection is not appropriate in this case. The provisions for presumptive service connection notwithstanding, the United States Court of Appeals for the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984), does not preclude a claimant from establishing service connection with proof of actual direct causation under 38 U.S.C.A. §§ 1110, 1131, and 38 C.F.R. § 3.303(d). Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Although this holding pertained to compensation due to exposure to ionizing radiation, the Board finds that this judicial construction is equally applicable when the issue involves compensation due to exposure to Agent Orange. See Brock v. Brown, 10 Vet. App. 155, 160 (1997) (citing Combee, supra; Cosman v. Principi, 3 Vet. App. 503, 505 (1992)). To support direct service connection of hepatitis C and cirrhosis of the liver due to herbicide exposure competent medical evidence is needed to provide an etiological link between the veteran's liver disorders and service or exposure to herbicide agents. Upon review of the record, the current medical evidence does not suggest any relationship between any present active hepatitis C and cirrhosis and service or exposure to herbicide agents. The medical evidence does show that the currently diagnosed cirrhosis is likely due to the veteran's hepatitis C, however no nexus to active military service for the hepatitis C is evident. The Board has considered the scenario being advanced by the veteran of receiving a tainted transfusion at a Battalion Aid station in Vietnam, and that the infected blood, in combination with exposure to Agent Orange resulted in the present liver disorders. However, there is no qualified evidence of such a connection and the veteran has not been shown to posses the medical expertise necessary to establish a nexus between the currently diagnosed liver disorders and service. See Jones v. Brown, 7 Vet. App. 134, 137 (1994); Espiritu v. Derwinski, 2 Vet. App. 492, 494-495 (1991). The Board notes the veteran's June 1997 claim that a VA physician informed him that his liver was damaged by exposure to Agent Orange, however the Court of Appeals for Veterans Claims (known as the Court of Veterans Appeals prior to March 1, 1999) (Court) has held that the statements of the appellant as to what a doctor told him are not competent evidence. Warren v. Brown, 6 Vet. App. 4, 6 (1993). The materials, including results of a medical study, are general and have not been applied to the veteran's specific situation. The treatise evidence does not suggest that hepatitis C, as opposed to other forms of the disease, results from herbicide exposure, does not distinguish from Vietnam veterans exposed to herbicides and those who were not, and does not indicate whether the number of hepatitis cases for Vietnam veterans is higher than from non Vietnam veterans. It is of no probative value for determining the etiology of the veteran's disability. Because the medical evidence does not establish a nexus between active service and the current disability, the claim is not well-grounded. Rabideau v. Derwinski, 2 Vet.App. 141, 143-44 (1992). Given the veteran's failure to submit a well-grounded claim, the Board need not reach the benefit of the doubt doctrine. 38 U.S.C.A. § 5107. ORDER Entitlement to service connection for hepatitis C and cirrhosis of the liver, claimed as secondary to Agent Orange exposure is denied THOMAS J. DANNAHER Member, Board of Veterans' Appeals