Citation Nr: 0815224 Decision Date: 05/08/08 Archive Date: 05/14/08 DOCKET NO. 94-17 492 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: Robert W. Legg, Attorney at Law WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Kristi L. Gunn, Associate Counsel INTRODUCTION The veteran served on active duty from January 1976 to November 1976 and from November 1977 to February 1978. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 1992 rating decision of the Houston, Texas, Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for hepatitis C as secondary to surgery for the veteran's service-connected cholecystectomy. In a November 1996 decision, the Board denied service connection for hepatitis secondary to surgery for the veteran's service-connected gallbladder disability. The veteran appealed the Board's November 1996 decision to the United States Court of Appeals for Veterans Claims (Court). By Order dated September 1998, the Court granted a Joint Motion for Remand, vacated the November 1996 Board decision, and remanded the case for compliance with the terms of the joint motion. The Board notes specifically that the Joint Motion for Remand requested that the veteran's claim for benefits also be adjudicated under 38 U.S.C.A. § 1151. Per the request in the September 1998 Joint Motion for Remand, the Board remanded the veteran's claim so that the claim could be adjudicated under 38 U.S.C.A. § 1151. Subsequently thereafter, the Board remanded the veteran's claim again in February 2001 for VA treatment records and to afford the veteran a VA examination to determine the etiology of the veteran's hepatitis C. Additional clarification of the VA examination report was deemed necessary and the Board remanded the matter again in July 2003. In December 2004, the Board denied service connection for hepatitis C secondary to surgery for the veteran's service- connected gallbladder disability and entitlement to compensation benefits for hepatitis C under 38 U.S.C.A. § 1151. The veteran appealed the December 2004 decision to the Court, and by Order dated May 2006, the Court granted a Joint Motion for Remand, vacated the December 2004 Board decision, and remanded the case for compliance with the terms of the joint motion. The Joint Motion stated that the veteran's claim for service connection should be adjudicated on a direct service connection basis. In December 2006, a Veterans Health Administration (VHA) medical opinion was obtained and associated with the record. The case has been returned to the Board for appellate review. The Board notes that a hearing was held before a Veterans Law Judge in December 2000. The Veterans Law Judge who conducted the hearing subsequently left the Board. In August 2006, the veteran was notified that the Veterans Law Judge was no longer employed by the Board and was offered the opportunity to have another hearing before a member of the Board. The veteran informed the Board that she did not wish to have another Board hearing. In November 2007, the veteran submitted additional medical evidence with a waiver of initial RO review. No additional action in this regard is needed. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. Resolving doubt in the veteran's favor, competent evidence of a nexus between the post service diagnosis of hepatitis/non-alcoholic sclerotic hepatitis (NASH) and service is of record. CONCLUSION OF LAW Hepatitis C is related to the veteran's active military service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Decision In June 2006 personal statement, the veteran explains that she was exposed to blood during her active military service. The veteran stated that when she entered Army medical training, she was assigned on a pediatrics rotation through the "[b]lood room." She indicated that while on pediatrics rotation, she was involved in total care of patients, one- time special duty isolation, assisting in muscle biopsy, and working in the blood room drawing blood from patients. The veteran contends that it was a very busy assignment and "stuck" herself several times while working with patients and blood. During her time on the reserve unit, the veteran administered shots and was a medic in the field. The veteran contends that service connection is warranted for her hepatitis C due to her position as a medical specialist during her active military service. As previously mentioned, in a May 2006 Joint Motion for Remand, the Court noted that the Board has previously adjudicated the veteran's claim of service connection for hepatitis C based upon direct service connection, secondary service connection, and a claim pursuant to 38 U.S.C.A. § 1151. However, the Court determined that throughout the pendency of this appeal, no examiner has been specifically requested to determine whether the veteran's inserivce exposure to blood and blood products as a medical specialist during her active military service caused her current hepatitis C. As such, the Court requested that a medical opinion be elicited to determine whether the veteran's hepatitis C is due to her work in the medical field during her military service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131. 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). The Court has held that in order to prevail on the issue of service connection on the merits, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The Board points out that risk factors for hepatitis C include intravenous (IV) drug use, blood transfusions before 1992, hemodialysis, intranasal cocaine, high-risk sexual activity, accidental exposure while a health care worker, and various kinds of percutaneous exposure such as tattoos, body piercing, acupuncture with non-sterile needles, shared toothbrushes, or razor blades. See VBA letter 211B (98-110) November 30, 1998. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As noted above, in December 2006, the Board requested a VHA opinion in connection with the veteran's claim. In April 2007, the physician reviewed the claims file and acknowledged that occupational exposure is one of the risk factors for hepatitis C, but concluded that it "seems unlikely to be the cause of exposure in the [veteran] . . . ." The physician also noted that the result of liver serology could be secondary to NALF (non-alcoholic fatty liver) or NASH (non- alcoholic steatohepatitis). The major risk factors for NASH and NALF are: obesity, hypertriglyceridemia and diabetes. In support of the veteran's claim, a November 2007 private medical statement was submitted by H.R., M.D. Dr. H.R. stated that he reviewed the veteran's records and noted that the veteran was first diagnosed with non A - non B hepatitis. Thereafter, she was diagnosed with hepatitis C, and her present diagnosis is non-alcoholic sclerotic hepatitis (NASH). He noted according to the Mayo Clinic, the top research center in the United States, the cause of NASH is unknown. He then opined that "it is likely as not that [the] [veteran] acquired the NASH during the time she was a Clinical Specialist (nurse) [i]n the [Army]." It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in so doing, the Board may accept one medical opinion and reject others. Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board is mindful that we cannot make our own independent medical determinations, and that we must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another. Evans v. West, supra; see also Rucker v. Brown, 10 Vet. App. 67, 74 (1997), citing Colvin v. Derwinski, 1 Vet. App. 171 (1991). Thus, the weight to be accorded the various items of evidence in this case must be determined by the quality of the evidence, and not necessarily by its quantity or source. The evidence establishes that the veteran has or has had diagnoses of hepatitis C and NASH. It also establishes that her military occupational specialty (MOS) was a medical specialist during her active service, and that she was exposed to blood from patients. The veteran is medically trained and is competent to describe her exposure to blood as a medical specialist during her active service. Then, there is positive and negative evidence with regard to whether the veteran's current disease is related to active service. In April 2007 a VA physician opined that it was not service- related and in November 2007 a private physician opined that it was service-related. Both opinions were rendered after a review of the claims files, and in November 2007, the private physician indicated that he had examined the veteran. Given that these medical statements are equally competent and credible, the Board finds that the evidence is in equipoise in this regard. After resolving doubt in the veteran's favor, the competent evidence etiologically relates her hepatitis to service. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one that exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. 38 C.F.R. § 3.102. See also 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Given the facts of this case, and with resolution of all reasonable doubt in the veteran's favor, the Board finds that entitlement to service connection for hepatitis is warranted. The appeal is allowed. II. Duty to Notify & Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, or any information and 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) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the United States Court of Appeals for Veteran Claims (Court) held that VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. Given the fully favorable decision discussed above, the Board finds that any issue with regard to the timing or content of the VCAA notice provided to the veteran is moot or represents harmless error. As to additional notice regarding the effective date to be assigned, the RO will address this matter in effectuating the award. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Furthermore, as a result of the decision to award service connection for hepatitis C, the claims of entitlement to service connection for hepatitis C on a secondary basis and pursuant to 38 U.S.C.A. § 1151 are moot. Thus, any error by VA in complying with the requirements of VCAA with respect to those claims is also harmless. ORDER Entitlement to service connection for hepatitis C is granted. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs