Citation Nr: 1040154 Decision Date: 10/26/10 Archive Date: 11/01/10 DOCKET NO. 07-03 974 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for hepatitis C, on a direct basis and as secondary to service-connected infectious hepatitis. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran served on active military duty from September 1972 to February 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating action by the above-referenced RO. In June 2009, the Board remanded the Veteran's service connection claim for further evidentiary development. In April 2010, the Board obtained a Veterans' Health Administration (VHA) advisory opinion. See 38 U.S.C.A. § 7109 (West 2002); 38 C.F.R. § 20.901(a) (2009). The resulting VHA opinion, dated in September 2010, was received by the Board in October 2010. FINDING OF FACT Resolving all reasonable doubt, the Veteran's service-connected infectious hepatitis caused or contributed to his development of hepatitis C. CONCLUSION OF LAW The criteria for service connection for hepatitis C have been met. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.310 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist a claimant in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2009). The VCAA applies in the instant case. However, as the decision below constitutes a full grant of the benefits sought in the present appeal with regard to the Veteran's claim for service connection for hepatitis C, any deviation in the execution of the VCAA requirements by the RO constituted harmless error, and does not prohibit consideration of this matter on the merits. II. Pertinent Law and Regulations for Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Where there is a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). Service connection may also 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). As pertinent in this matter, disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310 (2009). When aggravation of a veteran's non-service connected disability is proximately due to or the result of a service-connected disease or injury, it too shall be service connected to the extent of the aggravation. See Allen v. Brown, 7 Vet. App. 439, 446 (1995) (en banc). The Board notes that effective October 10, 2006, 38 C.F.R. § 3.310 was amended. However, based upon the facts in this case, the regulatory change does not adversely impact the outcome of the appeal. After considering all information and lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. III. Factual Background and Analysis The Veteran is seeking service connection for hepatitis C. The risk factors for hepatitis C include intravenous (IV) drug use, blood transfusions before 1992, hemodialysis, intranasal cocaine abuse, high-risk sexual activity, accidental exposure while a health care worker, and various percutaneous exposures such as tattoos, body piercing, acupuncture with non-sterile needles, shared toothbrushes, or razor blades. See Veterans Benefits Administration All Station Letter 98-110 "Infectious Hepatitis" (Nov. 30, 1998). In a November 2005, statement in support of his claim, the Veteran reported that as a corpsman he was exposed to several bloody cuts and wounds from fights and accidents. Most recently he has asserted that he developed hepatitis C as a result of his service-connected infectious hepatitis. Service records show the Veteran served as a medic, and was treated for infectious hepatitis in April 1973. In September 1973, he was evaluated for drug and alcohol abuse. The remaining records are otherwise negative for complaints or symptoms suggestive of hepatitis C. Further review of the claims file indicates that hepatitis C was first noted in a December 2003 VA treatment record. Other post- service evidence includes a March 2005 VA outpatient treatment record, which indicates the Veteran had a positive test for hepatitis C antibodies in 2002. These records also confirm a history of cocaine and intravenous drug use in the 1990s, with the last use in 2000. Hepatitis C was confirmed by liver function tests during an August 2005 VA examination. In a January 2006 addendum to that report, the examiner concluded that it was very difficult to state whether the Veteran's current hepatitis C was related to being a first aid attendant during service or was more likely due to post-service drug addiction without resorting to mere speculation. She noted that, as both were risk factors for contracting hepatitis C, she was not able to render an opinion as the specific etiology. However, in a second addendum dated in March 2006, the same VA examiner concluded that the Veteran's hepatitis C was less likely related to his 1-1/2 years of exposure as a first aid attendant in service, but rather was more likely related to his 20-year history of IV drug abuse. She explained that the Veteran's in- service diagnosis of infectious hepatitis was mostly likely hepatitis A as evidenced by symptoms of abdominal pain, jaundice, and an inability to digest food. Supporting documentation consisted of an April 1973 treatment note, in which the Veteran denied drug use, thus making it more likely that he contracted hepatitis A, not hepatitis C while in service. In June 2009, the Board remanded this case for a VA examination addressing the question of secondary service connection. The requested examination was conducted in November 2009, by the same VA examiner. On this occasion she noted the Veteran's risk factors of a tattoo prior to service, blood exposure and shared razors during service, and IV drug use after service. Consequently, the examiner was unable to resolve the issue of whether hepatitis C was due to or a result of infectious hepatitis without resorting to mere speculation. Her only rationale was that the etiology of hepatitis C could not be isolated to one specific cause as the Veteran had multiple risk factors for the disease. For further medical comment on this issue, the Board requested a VHA medical expert opinion in April 2010 from a hepatologist. The Board received the expert medical opinion in September 2010. After reviewing the claims folder, the hepatologist concluded that it was at least as likely as not that the Veteran's service- connected infectious hepatitis was associated with an acute hepatitis C infection and caused his current chronic hepatitis C infection. In discussing the rationale of the opinion, the hepatologist noted that the infectious hepatitis of April 1973 became chronic, i.e. there was evidence of persistent abnormality in his liver enzymes ("abnormal laboratory exam, an elevated SGOT of 148) a year later in August 1974. He also noted that the Hepatitis A virus does not cause a chronic hepatitis infection. In addition, the Veteran was diagnosed with drug abuse in September 1973, admitting to smoking hash and drinking alcohol. The hepatologist went on to explain that, regardless of the Veteran's report of lack of exposure to needlesticks or intravenous drug abuse, it was his opinion that the acute hepatitis infection in April 1973 was at least as likely as not acute hepatitis C and that the subsequent natural history would be the development of a chronic hepatitis C infection in most affected individuals. The physician also noted that the diagnosis of drug abuse a few months later, signaled that a long future of drug addiction was to follow. In this case there are several medical opinions regarding the Veteran's claimed hepatitis C, and whether it may be related to service or the service-connected infectious hepatitis. Where the record contains both positive and negative evidence, it is the responsibility of the Board to weigh the credibility and probative value of the medical opinions, 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)); see also Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (it is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons and bases for doing so). The positive evidence of record consists primarily of the VHA medical opinion, from a board-certified hepatologist, which reflects a full review of all medical evidence of record, including the prior VA opinions, and bases his opinion on professional and personal experience, as well as the traditional risk factors for hepatitis C. On the other hand, the negative evidence of record consists of a January 2006 addendum in which a VA nurse practitioner was unable to provide a definitive opinion. However, in a March 2006 opinion, the same VA medical professional determined that the Veteran's service-connected infectious hepatitis did not play a significant role in the development of the current hepatitis C. She articulated a credible opinion regarding etiology, and supported that opinion with clinical rationale and citation to the Veteran's medical history. In this regard, the Board acknowledges that neither the negative March 2006 VA opinion nor the September 2010 positive VHA opinion referenced medical literature to support the medical conclusions contained therein or to reject any opposing conclusion but that both opinions were based upon a complete and thorough review of the claims folder. However, the March 2006 negative VA opinion was rendered by an advanced registered nurse practitioner, and the September 2010 positive VHA opinion was rendered by a doctor who specializes in gastroenterology and hepatology (indeed the Chief of the Gastroenterology and Hepatology Department at a medical facility). Accordingly, under these circumstances, the Board finds that, at the very least with respect to the matter of secondary service connection, the evidence is in equipoise. Therefore, the Board concludes that service connection for hepatitis C, as secondary to service-connected infectious hepatitis, is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for hepatitis C, as secondary to service- connected infectious hepatitis, is granted. ____________________________________________ THERESA M. CATINO Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs