Citation Nr: 0511450	
Decision Date: 04/22/05    Archive Date: 05/03/05

DOCKET NO.  03-22 186	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office and Insurance 
Center in Philadelphia, Pennsylvania

THE ISSUES

1.  Entitlement to service connection for hepatitis C.

2.  Entitlement to service connection for diabetes mellitus 
as secondary to 
hepatitis C.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

K. Fitch, Associate Counsel




INTRODUCTION

The veteran served on active duty from November 1974 to 
November 1977, with additional service in the reserves.

This case comes before the Board of Veterans' Appeals (the 
Board) on appeal from an April 2002 rating decision of the 
Hartford, Connecticut, Department of Veterans Affairs (VA) 
Regional Office and Insurance Center (RO) in Philadelphia, 
Pennsylvania that denied entitlement to service connection 
for hepatitis C and diabetes mellitus, secondary to hepatitis 
C.  The veteran filed a Notice of Disagreement with respect 
to these claims in February 2003.  The RO issued a Statement 
of the Case with respect to the claim of entitlement to 
service connection for hepatitis C and the veteran filed his 
Substantive Appeal with respect to this issue in July 2003.

In his July 2003 Substantive Appeal, the veteran requested 
the opportunity to testify at a hearing held before a 
Veterans Law Judge (formerly known as a Member of the Board) 
at the local VA regional office and in Washington, DC.  In an 
August 2003 letter, the RO sought clarification of the 
veteran's request for a hearing.  The same month the veteran 
responded, requesting instead a hearing with an RO Decision 
Review Officer.  This hearing took place in June 2004.  Since 
that time, the veteran has not requested the opportunity to 
testify at another Board hearing.  In light of the above, the 
Board finds that the veteran's request to testify at a Board 
hearing has been withdrawn.  See 38 C.F.R. § 20.704 (2003).

Subsequent to the June 2004 Supplemental Statement of the 
Case, the veteran submitted additional evidence.  This 
evidence was not accompanied by a waiver of RO consideration.  
These documents, however, do not contain evidence relevant to 
this appeal and will therefore not be considered by the Board 
in adjudicating this claim.  

The issue of entitlement to service connection for diabetes 
mellitus as secondary to hepatitis C 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.


FINDINGS OF FACT

Hepatitis C had its onset during service.


CONCLUSION OF LAW

Hepatitis C was incurred in service.  38 U.S.C.A. §§ 1110, 
1131, 5107 (West 2002); 38 C.F.R. §§ 3.303 (2004).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  VCAA

The Veterans Claims Assistance Act of 2000 (VCAA), codified 
in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 
38 C.F.R. § 3.159, amended VA's duties to notify and to 
assist a claimant in developing the information and evidence 
necessary to substantiate a claim.  

Under 38 U.S.C.A. § 5103, VA must notify the claimant of the 
information and evidence not of record that is necessary to 
substantiate the claim, which information and evidence that 
VA will seek to provide and which information and evidence 
the claimant is expected to provide.  Furthermore, in 
compliance with 38 C.F.R. § 3.159(b), the notification should 
include the request that the claimant provide any evidence in 
the claimant's possession that pertains to the claim.  

In the present case, the RO, in letters dated in July and 
October 2001, provided the veteran with the required notice 
under 38 U.S.C.A. § 5103 and 38 C.F.R. § 3.159(b).  
Specifically, the veteran was furnished notice of the types 
of evidence needed in order to substantiate his claim of 
service connection, as well as the types of evidence VA would 
assist him in obtaining.  The veteran was informed of his 
responsibility to identify, or submit directly to VA, medical 
evidence that shows a currently disability, evidence of a 
disease or injury in service, and medical evidence of a link 
between his current disability and service.  The veteran was 
also informed that this evidence could consist of medical 
records or medical opinions.  Moreover, the RO specifically 
requested that the veteran provide to VA information 
describing additional evidence or the evidence itself.  

By way of an April 2002 rating decision, a June 2003 
Statement of the Case, and a June 2004 Supplemental Statement 
of the Case, the RO advised the veteran and his 
representative of the basic law and regulations governing 
service connection claims, and the basis for the denial of 
the veteran's claim of service connection for hepatitis C.  
These documents, as well as the RO's July and October 2001 
letters, also specifically informed the veteran of the 
cumulative information and evidence previously provided to 
VA, or obtained by VA on the veteran's behalf.

For the reasons above the Board finds that the RO 
substantially complied with the specific requirements of 
Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying 
evidence to substantiate the claim and the relative duties of 
VA and the claimant to obtain evidence); Charles v. Principi, 
16 Vet. App. 370 (2002) (identifying the document that 
satisfies the VCAA notice); and 38 C.F.R. § 3.159(b) (the 
content of the notice requirement, pertaining to the evidence 
in the claimant's possession or a similar request to that 
effect).  In this context, it is well to observe that the 
VCAA requires only that the duty to notify be satisfied, and 
that claimants be given the opportunity to submit information 
and evidence in support of their claims.  Once this has been 
accomplished, all due process concerns have been satisfied.  
See Bernard v. Brown, 4 Vet. App. 384 (1993).  Sutton v. 
Brown, 9 Vet. App. 553 (1996).

The Board also finds that VA has made reasonable efforts to 
assist the veteran in obtaining evidence necessary to 
substantiate his claim of entitlement to service connection.  
38 U.S.C.A. § 5103A (West 2002).  In particular, the 
information and evidence associated with the claims file 
consists of the veteran's service medical records; post-
service medical evidence, including private and VA 
examination reports and records; testimony at a hearing 
before the RO, and statements submitted by the veteran and 
his representative in support of his claim.  In this regard, 
the Board notes that the veteran cooperated with the RO in 
developing and attempting to retrieve medical and treatment 
records from physicians and medical facilities identified by 
the veteran.  

Based on the foregoing, the Board concludes that there is no 
identified evidence that has not been accounted for with 
respect to the veteran's claim.  Moreover, the veteran's 
representative has been given the opportunity to submit 
written argument.  Therefore, under the circumstances of this 
case, VA has satisfied its duty to assist the veteran in this 
case.  Accordingly, further development and further expending 
of VA's resources is not warranted.  See 38 U.S.C.A. § 5103A.

II.  Entitlement to service connection for hepatitis C.

Service connection may be established for disability 
resulting from personal injury suffered or disease contracted 
in the line of duty, or for aggravation of a pre-existing 
injury suffered or disease contracted in line of duty.  38 
U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  The law also 
provides 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).  If a 
condition noted during service is not shown to be chronic, 
then generally a showing of continuity of symptomatology 
after service is required for service connection.  38 C.F.R. 
§ 3.303(b) (2003).  

In determining whether service connection is warranted for a 
disability, VA is responsible for determining whether the 
evidence supports the claim or is in relative equipoise, with 
the veteran prevailing in either event, or whether a 
preponderance of the evidence is against the claim, in which 
case the claim is denied.  38 U.S.C.A. § 5107; Gilbert v. 
Derwinski, 1 Vet. App. 49 (1990).

In addition, in adjudicating a claim, the Board is charged 
with the duty to assess the credibility and weight given to 
evidence.  Wensch v. Principi, 15 Vet. App. 362, 367 (2001); 
Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  Indeed, the 
Court has declared that in adjudicating a claim, the Board 
has the responsibility to do so.  Bryan v. West, 13 Vet. 
App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. 
App. 614, 618 (1992).  

Following a careful review of the record, the Board finds 
that the evidence is in favor of granting the veteran's claim 
of service connection for hepatitis C.

Here, it is clear that the veteran suffers from hepatitis C.  
The Board will therefore focus on the evidence that relates 
to whether the veteran's hepatitis C was incurred in or 
aggravated by the veteran's military service.  See Gonzalez 
v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and 
Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

The veteran was afforded a VA examination in August 2001 in 
connection with his claim.  The examiner noted that the 
veteran was hospitalized in service for an unknown febrile 
illness that was later concluded to be hepatitis.  He has 
since been service-connected for this condition.  However, 
because the viral studies conducted at the time were less 
sophisticated than they are at present, the examiner 
concluded that is not clear what type of hepatitis the 
veteran had at the time.  The examiner went on to note that 
there is no history of blood transfusions, tattoos or 
intravenous drug use with an unclean or shared needle.  The 
veteran did note, however, and also later testified as such 
to the RO, that he was exposed to blood during vigorous war 
games while in the service.  Upon examination, the veteran 
was noted to have an enlarged liver.  Lab results indicated 
HCV viral load 366,000 I.U./ml., exposures to hepatitis A and 
B without sequelae, normal LTFs.  The examiner went on to 
note that the illness that the veteran was hospitalized for 
in service was either hepatitis A or B.  On the question of 
the veteran's hepatitis C and its connection to service, the 
examiner stated "[I]t remains unclear when he acquired Hep 
C, but if he was exposed to blood during war games, it is as 
likely as not that Hep C was acquired in service."

In light of the foregoing, the Board finds that the evidence 
is in favor of finding service connection for hepatitis C.  
In reaching this determination, the Board notes that the 
veteran is competent to report experiences that happened to 
him in service.  See Charles v. Principi, 16 Vet. App. 370 
(2002).  In this regard, the veteran testified before the RO, 
and also repeatedly indicated in statements submitted to the 
RO and to his physicians upon examination, that he was 
exposed to blood during war games in service.  The Board 
finds no reason to indicate that the veteran's statements in 
this regard are untrue.  In addition, the VA examiner who 
conducted the August 2001 examination, specifically stated, 
after reviewing the veteran's history, that "if he was 
exposed to blood during war games, it is as likely as not 
that Hep C was acquired in service."  And here the Board 
notes that there is no contrary opinion regarding connection 
to service in the record.

In light of the foregoing therefore, and resolving all 
reasonable doubts in the veteran's favor, the Board finds 
that the preponderance of the evidence supports the veteran's 
claim of entitlement to service connection for hepatitis C.


ORDER

Service connection for hepatitis C is granted.


REMAND

In an April 2002 decision, the RO denied service connection 
for hepatitis C and diabetes mellitus as secondary to 
hepatitis C.  In a February 2003 statement, the veteran's 
representative expressed the veteran's disagreement with the 
RO's April 2002 determinations.  Specifically, the statement 
referred to an attached medical statement that opined that 
the veteran's hepatitis C may have played a role in the 
causation of the veteran's diabetes mellitus.  The Board 
interprets this reference as a challenge to the RO's denial 
of secondary service connection for diabetes mellitus.  The 
representative's statement also indicated that the veteran 
wished to challenge the April 2002 rating decision, "which 
denied service connection for hepatitis c."  In light of the 
above, the Board accepts the February 2003 statement as a 
Notice of Disagreement (NOD) pursuant to 38 C.F.R. § 20.201 
with respect to both issues denied in the April 2002 rating 
decision.  However, the RO has not issued the veteran a 
Statement of the Case (SOC) with respect to the claim of 
secondary service connection for diabetes mellitus.  Under 
these circumstances, the Board must remand this issue to the 
RO for the issuance of a Statement of the Case (SOC).  See 
Manlincon v. West, 12 Vet. App. at 240-41; Holland v. Gober, 
10 Vet. App. 433, 436 (1997).

Accordingly, the Board hereby REMANDS the case to the RO for 
the following action:

1.  The RO should issue the veteran a 
Statement of the Case with respect to the 
veteran's claim of entitlement to service 
connection for diabetes mellitus as 
secondary to hepatitis C, to include 
notification of the need, and the 
appropriate time period, in which to file 
a substantive appeal to perfect his 
appeal on this issue. 

The appellant has the right to submit additional evidence and 
argument on the matter or matters the Board has remanded.  
Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law 
requires that all claims that are remanded by the Board of 
Veterans' Appeals or by the United States Court of Appeals 
for Veterans Claims for additional development or other 
appropriate action must be handled in an expeditious manner.  
See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 
707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 
U.S.C. §§ 5109B, 7112).




	                     
______________________________________________
	DEBORAH W. SINGLETON
	Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs