Citation Nr: 1125743 Decision Date: 07/08/11 Archive Date: 07/15/11 DOCKET NO. 09-33 635 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUES 1. Entitlement to service connection for hepatitis C. 2. Entitlement to service connection for psychiatric disability, to include on a secondary basis REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Heather M. Gogola, Counsel INTRODUCTION The Veteran served on active duty from June 1971 to December 1973. These matters are before the Board of Veterans' Appeals (Board) on appeal from April and August 2008 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire. The issue of entitlement to service connection for psychiatric disability is addressed in the REMAND that follows the below ORDER. FINDING OF FACT The Veteran's hepatitis C is etiologically related to his active service. CONCLUSION OF LAW Hepatitis C was incurred in active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION As a preliminary matter, the Board notes that the Veteran has been provided all required notice, to include notice pertaining to the disability-rating and effective-date elements of his claim. In addition, the evidence currently of record is sufficient to substantiate his entitlement to service connection for hepatitis C. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2009) or 38 C.F.R. § 3.159 (2010). Legal Criteria 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; 38 C.F.R. § 3.303. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary 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 Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2009); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis The Veteran contends that his hepatitis C is related to his active service, specifically to a tattoo he received in Thailand during his active service. Service treatment records are negative for any evidence of hepatitis C. The Veteran submitted photos revealing a tattoo on his left upper arm. Additionally, the Veteran submitted statements from his brothers and a friend indicating that prior to military service the Veteran did not have any tattoos, but when he returned to the States on leave from his tour of duty in Southeast Asia, he had a tattoo on his arm. The Veteran has indicated that he has never used intravenous drugs or intranasal cocaine, received a blood transfusion, participated in high risk sexual activity, undergone hemodialysis, shared toothbrushes or razor blades, or undergone acupuncture with non-sterile needles. Post service treatment records indicate that the Veteran was first diagnosed with hepatitis C in October 2004 and reflect continued treatment for his hepatitis C. A March 2005 VA consultation report indicates that the Veteran reported some past experimentation with cocaine and cannabis but was not a regular user of the substances. A June 2005 VA infectious disease consultation noted that the Veteran had a history of intranasal cocaine use with other risk factors of intravenous drug use or blood transfusions being negative. The Veteran submitted a May 2008 VA treatment record that indicates that the Veteran denied using intravenous or intranasal drugs and that his only risk factor was a tattoo done while he served in Southeast Asia. The nurse practitioner stated that the tattoo clearly could have been the source of the Veteran's hepatitis C. The Veteran was afforded a hearing before a Decision Review Officer in April 2009. During his hearing he reported that he acquired a tattoo while he was on leave during the time he was stationed in Thailand. He further denied risk factors including using intravenous drugs or receiving blood transfusions. The Veteran was afforded a VA examination in June 2009. The examiner indicated that the Veteran denied any risk factors for hepatitis C other than the tattoo he reported acquiring in Thailand during his service. The examiner noted that while the Veteran denied intranasal cocaine and that while the denial was documented in multiple treatment notes, there was a report of intranasal cocaine use on occasion. The Veteran otherwise denied past or present intravenous drug use, accidental blood exposure, blood transfusions, hemodialysis, or body piercings. The examiner provided a diagnosis of hepatitis C. After review of the file, the examiner opined that if the Veteran's denial of intranasal cocaine use was found to be true, it was more likely than not that the hepatitis C was related to exposure from a tattoo obtained during the Veteran's service in Thailand. However, the examiner stated that if the Veteran's use of intranasal cocaine use could be confirmed, he would change his opinion to it is at least as likely as not that the hepatitis C is related to the tattoo. The examiner explained that if the risk factor of the use of intranasal cocaine was confirmed in addition to the tattoo, it would be impossible to determine by which route the hepatitis C was acquired, though literature would suggest that it would be more likely due to the cocaine. In the Board's opinion, the evidence supportive of the Veteran's claim is in equipoise with that against the claim. While there are some indications that the Veteran's risk factors included not only a tattoo acquired in Thailand during service, but also some experimentation with intranasal cocaine, the Board finds that the medical evidence addressing the etiology of the Veteran's hepatitis C supports the claim. Particularly, the VA examiner opined that even if intranasal cocaine use could be confirmed, it was at least as likely as not that the Veteran's current hepatitis C was related to his tattoo in service. Therefore, the Board resolves reasonable doubt in the Veteran's favor and concludes that service connection is warranted for hepatitis C. ORDER Entitlement to service connection for hepatitis C is granted. REMAND The Veteran claims that he has depression as the result of his service-connected hepatitis C. The Board notes that the Veteran was provided with a VA examination in March 2008. The examiner stated that the Veteran described signs and symptoms of depression, and that a diagnosis of depressive disorder, not otherwise specified, best fit his presentation of symptoms. The examiner further stated that it was possible that some of the Veteran's depressive symptomatology was secondary to his medical conditions resulting in anemia and fatigue. Unfortunately, the Board finds that the opinion did not address whether the Veteran's service-connected disabilities, including his hepatitis C, caused or aggravated the Veteran's depression. As such, a VA examination and opinion should be obtained in order to address these assertions. See 38 U.S.C.A. § 5103A(d)(2). Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The Veteran should be afforded a VA examination to determine the etiology of each acquired psychiatric disorder present during the pendency of this claim. The claims files must be provided to and reviewed by the examiner. Any indicated evaluations, studies, and tests should be accomplished. With respect to each acquired psychiatric disorder present at any time during the period of the claim, the examiner should state an opinion as to whether there is a 50 percent or better probability that the disorder is etiologically related to the Veteran's service-connected hepatitis C and/or recurrent furunculosis, to include whether the psychiatric disorder was permanently worsened by one or both of the service-connected disabilities. If aggravation is found, the examiner must identify the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of the disorder by the service-connected disability. A complete rationale for all opinions expressed must be provided. If the examiner cannot respond without resorting to speculation, he or she should explain why a response would be speculative. 2. The RO or the AMC should also undertake any other development it determines to be warranted. 3. Then, the RO or the AMC should readjudicate the Veteran's claim. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be provided a supplemental statement of the case and given the requisite opportunity to respond. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs