Citation Nr: 1136090 Decision Date: 09/26/11 Archive Date: 10/03/11 DOCKET NO. 04-12 415 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to a disability evaluation in excess of 10 percent for residual burn scars on the neck and chest. 2. Entitlement to a compensable disability evaluation for residuals of a fracture of the fifth metacarpal in the right hand (dominant hand). 3. Entitlement to a compensable disability evaluation for residuals of a fracture of the second metatarsal head of the left foot. 4. Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: Kenneth Carpenter, attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. T. Sprague, Associate Counsel INTRODUCTION The Veteran had active service in the United States Army from February 1971 to February 1974, and from November 1990 to October 1991, to include service in Vietnam and the Southwest Asia theater of operations. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2003 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The Veteran's appeal has been before the Board on previous occasions and, in August 2006, an opinion was sought from the Veterans Health Administration (VHA) with respect to the claim for service connection for hepatitis. That opinion has been obtained. The appeal was also remanded in August 2006 to comply with procedural due process, and those actions have also been taken. Lastly, the issues currently on appeal were remanded in May 2008 for procedural and evidentiary development, and in February 2011, a new opinion from VHA was sought regarding to the issue of entitlement to service connection for hepatitis. All actions required by the Board have been accomplished. The Veteran appeared at a Videoconference hearing in June 2005 before a Veterans Law Judge who has since retired. The Veteran has indicated that he does not wish to have a new hearing. The Veteran appealed a May 2008 decision of the Board, which assigned a 70 percent rating for service-connected posttraumatic stress disorder (PTSD), to the U.S. Court of Appeals for Veterans Claims (Court). In that a September 2010 Court order determined that VA must consider the applicability of a TDIU prior to August 30, 2005, the May 2008 Board decision with respect to such a consideration was vacated. The Veteran is being represented by a private attorney for this issue, and accordingly, the remand order to effectuate the Court's order is being issued separately. FINDINGS OF FACT 1. The Veteran has burn residual scarring on his left chest and breast, with non-visible manifestations on the neck (no scars on the head, face, or upper arm); the scarring is not deep, is superficial, is currently not painful or causative of limitation of motion (although pain has been reported historically), and presents no impairment with regard to daily activities or employment. 2. The Veteran exhibits a right fifth finger which, while affected in the past by injury ("boxer's finger"), is benign in nature; there is no residual disability, fracture, degeneration, or limitation of motion noted in the joint after objective examination and radiographic testing. 3. The Veteran's second left metatarsal on the left foot has had a historical hammertoe and Colles fracture which has not needed surgery, has caused callus formation, and is clinically normal upon radiographic examination; there is no evidence of residual fracture or degeneration in the joint, no limitation of motion, and no impact on activities of daily living. 4. The Veteran served in Vietnam, where he shared razors with fellow soldiers, and had burns while serving in the Persian Gulf; the evidence of record is at least in relative equipoise as to if this in-service subcutaneous blood exposure caused current hepatitis C. CONCLUSIONS OF LAW 1. The criteria for a disability evaluation in excess of 10 percent for residual burn scars on the neck and chest. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.118 (2010); 38 C.F.R. § 4.118, Diagnostic Codes 7800-7804 (2008). 2. The criteria for a compensable disability evaluation for residuals of a fracture of the fifth metacarpal in the right hand (dominant hand) have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5227, 5230 (2010). 3. The criteria for a compensable disability evaluation for residuals of a fracture of the second metatarsal head of the left foot have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5276-5284 (2010). 4. Service connection for hepatitis C is warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA The enactment of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2010), significantly changed the law prior to the pendency of this claim. VA has issued final regulations to implement these statutory changes. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). The VCAA provisions include an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits, and they redefine the obligations of VA with respect to the duty to assist the Veteran with a claim. In the instant case, the Board finds that VA fulfilled its duties to the Veteran under the VCAA. In order to meet the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VCAA notice must (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) and, inform the claimant about the information and evidence the claimant is expected to provide. Although no longer required, in this case it was requested that the claimant provide any evidence in her possession that pertains to the claim. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). Additionally, the Court of Appeals for Veterans' Claims (Court) issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484, 486 (2006), which held that VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) mandate notification of all five elements of a service connection claim. Those five elements include (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. This notice must also inform the Veteran on how VA determines that a disability rating and an effective date for the award of benefits will be assigned if the claim is granted. Id. In this case, the Veteran received notice regarding the evidence and information needed to establish a disability rating and effective dates, as outlined in Dingess-Hartman. It is pertinent to note that the Veteran is represented by the Disabled American Veterans on the issues decided below, and that organization is presumed to have knowledge of what is necessary to substantiate claims for higher ratings and for service connection. Neither the Veteran nor his representative have pled prejudicial error with respect to the content or timing of VCAA notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The below decision represents a grant of service connection for hepatitis C. Therefore, with respect to that claim, any potential defect of VCAA notice is moot. Regarding VA's duty to assist the Veteran in obtaining evidence needed to substantiate his claims for increases in ratings, the Board finds that all necessary assistance has been provided in this case. The evidence includes service treatment records and post-service pertinent medical records, including VA examination reports. There is no indication of any additional relevant evidence that has not been obtained. With respect to the clinical examinations, the Board finds that the Veteran was provided thorough VA examinations which are adequate to resolve the issues on appeal; there is no duty to provide another examination or obtain a medical opinion. See 38 C.F.R. §§ 3.326, 3.327 (2010). Legal Criteria-Increased Ratings/General Disability ratings are determined by applying criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. For claims for an increase that do not rise out of an initial grant of service connection, the Board must consider the application of "staged" ratings for different periods from the filing of the claim forward, if the evidence suggests that such a rating would be appropriate. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In determining the disability evaluation, VA has a duty to consider all possible regulations which may be potentially applicable based upon the assertions and issues raised in the record. After such a consideration, VA must explain to the Veteran the reasons and bases utilized in the government's decision. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10 (2010). Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 38 C.F.R. § 4.40 (2010). Consideration is to be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. 38 C.F.R. § 4.45 (2010). VA must consider "functional loss" of a musculoskeletal disability separately from consideration under the diagnostic codes; "functional loss" may occur as a result of weakness, fatigability, incoordination or pain on motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). VA must consider any part of the musculoskeletal system that becomes painful on use to be "seriously disabled." Legal Criteria-Service Connection Applicable law provides that service connection will be granted if it is shown that the Veteran experiences a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury or disease occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in- service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Alternatively, the nexus between service and the current disability can be satisfied by medical or lay evidence of continuity of symptomatology and medical evidence of a nexus between the present disability and the symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495 (1997). Analysis-Increased Rating/ Burn Scars The Veteran in this case received burns to his head and chest while on active duty. He contends, in essence, that the burn residuals, which exist as scars, are of a greater severity than what is contemplated in the currently assigned 10 percent rating. The Veteran has been examined by VA on several occasions, with the earliest examination being in 2002. At that time, scars on the left chest were noted as a result of an in-service accident with fuel spillage. The Veteran was noted to have spilled fuel on his face and neck; however, upon examination, there were no visible indications of scarring on the face or neck. The Veteran was again examined, pursuant to Board remand instructions, in October 2009. In the associated report, the Veteran was found to exhibit a 21cm x 15cm scar extending from the left chest to breast, and a 7cm x 8cm scar from the breast to the left neck. These scars were identified as the burn residuals from the in-service fuel spillage. Hypopigmentation was present, with no elevation or depression noted in the scars, and the scarring on the neck was not noticeable. The chest scars were prominent; however, they were asymptomatic. That is, there was no pain in the scars, no skin breakdown, no impact on mobility, no keloid formation, and no edema. The total surface area affected by scarring was 10 percent. The Veteran filed his claim for an increase prior to October 23, 2008 (was raised by the record in November 2002), and he has not specifically requested a review under scar regulations which were revised on that date. Accordingly, the Veteran is to be rated under criteria in effect prior to the institution of that most recent revision. See 38 C.F.R. § 4.118 (2010). Under criteria in effect prior to October 2008, the Board notes that scars of the head, face, or neck are rated pursuant to Code 7800. This diagnostic code provides a 10 percent rating for a scar of the head, face, or neck with one characteristic of disfigurement. A 30 percent evaluation is assigned for visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips); or with two or three characteristics of disfigurement. 38 C.F.R. § 4.118, DC 7800 (2008). A 50 percent evaluation is assigned for visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips); or with four or five characteristics of disfigurement. Id. Finally, an 80 percent evaluation is assigned for visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips); or with six or more characteristics of disfigurement. Id. The eight characteristics of disfigurement include (1) Scar 5 or more inches (13 or more cm.) in length; (2) Scar at least one-quarter inch (0.6 cm.) wide at its widest part; (3) Surface contour of scar elevated or depressed on palpation; (4) Scar adherent to underlying tissue; (5) Skin hypo or hyperpigmented in an area exceeding six square inches (39 sq. cm.); (6) Skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); (7) Underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.); and (8) Skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). Id. The claim was originally raised with the scarring extending to the face and neck as well as the upper arm; however, upon review of the medical evidence, the residuals appear to be limited to the left chest and breast, with extension to a non-visible degree to the neck. Thus, while there are scar residuals present on the neck, there is no tissue loss or gross dyssymmetry, and three of the eight characteristics of disfigurement are not present. Hence, an increase is not warranted under this diagnostic code. See 38 C.F.R. § 4.118, DC 7800 (2008). Code 7801 provides for a rating when there are scars present in areas other than the head, face, and neck, when such scars are deep or cause limitation of motion. See 38 C.F.R. § 4.118, DC 7801 (2008). The scarring in this case is not deep, and has specifically been found to not cause limitation of motion. Hence, a rating under 7801 is also inappropriate. Code 7802 provides for a maximum 10 percent rating for scars that are superficial and do not cause limitation of motion (other than the face, head, and neck) when the area is greater than 144 square inches (or 929 sq. centimeters). Codes 7803 and 7804 provide for maximum ratings for unstable superficial scars and scars painful on examination, respectively. See 38 C.F.R. § 4.118, DC 7802-7804 (2008). The Veteran is currently in receipt of a 10 percent rating, which is evaluated under Code 7802. It would appear that this rating was given with contemplation of the scarring extension to the neck, as one disability unit, even though such scarring is not readily visible upon examination. Although the Veteran, in his most recent examination in October 2009, did not complain of pain, the fact that the issue was raised in a November 2002 VA examination does indicate that there has been pain in the scar throughout the appeal period. Thus, as the scarring area is less than 929 sq. centimeters, a rating under 7804 is more appropriate than 7802. In this case, the maximum schedular criteria under either code are 10 percent, and as noted, the Veteran's disability picture does not warrant consideration under other diagnostic criteria which do offer a higher schedular rating. Thus, the Board concludes that the 10 percent rating currently in effect is the maximum schedular rating allowed, and is adequate in contemplating the Veteran's scar residuals on his chest and breast, with non-visible extension to the neck. See 38 C.F.R. § 4.118, DC 7802-7804 (2008). There is no limitation of motion associated with the scar, and the October 2009 VA examination report specifically states that the scarring has no effect on the Veteran's employment capability. Indeed, there are large areas of asymptomatic scars over the left chest, which are not disfiguring, and are fully contemplated by the schedular criteria. There is nothing so unique as to take the disability picture outside of the norm, and thus there is no need to refer the claim for consideration of an extraschedular rating above the maximum 10 percent schedular rating currently assigned. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); see also Thun v. Peake, 22 Vet. App. 111 (2008). Accordingly, the claim for an increase is denied. Analysis-Increased Rating/ Left Foot (second metatarsal) and Right Finger (fifth metacarpal) The Veteran is currently in receipt of service connection for a fifth right metacarpal disorder and a second metatarsal disorder of the left foot. Both conditions are, at present, deemed not severe enough to warrant compensation. The Veteran contends, in essence, that these conditions have grown in severity to warrant compensable ratings. Service connection has been in effect for these disorders since 1994, and the Veteran was given a VA examination in November 2002 upon filing of his claim for an increase. A post-service fracture of the right wrist was noted; however, there was not a specific examination of the right hand and fingers. With regard to the left foot, a radiographic study conducted proximate to the time of examination was negative for any current abnormality, and no limitation of motion was present. Essentially, there was an old Colles fracture which had healed without any residual arthritis or deformity. Osteoporosis was noted to be a present disorder systemically; however, there was no impact in the left foot. In 2005, the Veteran had surgery on his fourth and fifth toes to correct hammertoe deformity. Although clinical records provide some indication that this is present in all toes, the surgical correction is not in an area that is currently subject to service connection. The Veteran, pursuant to a Board remand, was examined in October 2009 to determine the severity of both the right finger and left toe disorders. In the associated report, the right finger was examined to be a residual of a "boxer's fracture," without any actual residual disability. The finger had full range of motion, and the examiner assessed a "DeLuca factor of 0." The report went on to state that there was no evidence of reduced level of function, chronic pain, or of any issues with employment. Specifically, the examiner stated that radiographic testing showed no evidence of fracture, residual, or degeneration, and that the examination was benign. Regarding the service-connected left toe, the examiner relayed that there were no complaints about problems with locomotion, and no impairment to employability or the activities of daily living were noted. The examiner specifically stated that the examination of the left foot was entirely normal, and that a radiographic review of current and previous films showed no fracture residual, deformity, or degeneration. Again, the examiner stated that there was a "DeLuca factor of 0." No flare-ups were reported, and the Veteran was found to be asymptomatic in all joints in the foot. The Veteran's right finger disability is a disorder of the individual digit, and is rated as either based on the presence of ankylosis or limitation of motion. See 38 C.F.R. § 4.71a. Ankylosis of the ring or little finger warrants a noncompensable rating as the maximum schedular evaluation under Code 5227 (for either the dominant or non-dominant hand). With regard to limitation of motion, any limitation of motion in the dominant or non-dominant ring or little finger also warrants a noncompensable maximum schedular evaluation. The Veteran has neither limitation of motion nor ankylosis. In fact, save for the initial injury, there is virtually no disablement in the right finger. The Veteran does not complain of pain, has full use of the digit, and medical evidence indicates, via radiographic confirmation, that there is essentially no disability. Accordingly, the noncompensable rating (the maximum schedular rating allowed) is continued. With regard to the left toe, the Veteran is rated under Code 5284, pertaining to disabilities of the foot. Such a rating is appropriate, as the evidence does not show malunion or nonunion of the metatarsal (rated under Code 5283), nor has flatfoot, claw foot, metatarsalgia, or hallux valgus/halux rigidus been assessed. See 38 C.F.R. § 4.71a, Diagnostic Codes 5276-5281. There is some indication of a hammertoe deformity in all of the toes on the left foot in the clinical record, which would by necessity include the second service-connected toe. As, however, the presence of hammertoe in the one service-connected toe, regardless of the condition in nonservice-connected toes, would still only result in a maximum noncompensable rating under Code 5282, it is in the best interest of the Veteran that he be rated under the criteria established in Code 5284, which does allow for compensable ratings dependent on the severity of the service-connected foot deformity. See 38 C.F.R. § 4.71a, Diagnostic Codes 5282, 5284. In this regard, a 10 percent rating under Code 5284 is assigned when an injury to the foot is moderate in nature, with a 20 percent evaluation for a moderately severe injury, and a maximum schedular 30 percent rating for a severe injury. See 38 C.F.R. § 4.71a, Diagnostic Code 5284. The Veteran in this case has a historical Colles fracture which has been productive of some calluses, and there has been a noted hammertoe in the digit in clinical records from 2005. In a more recent examination (2009), the Veteran had a completely normal assessment of his left foot, and radiographic studies confirmed the absence of any degeneration, deformity, or residual disability. There was no limitation of motion of the digit, and like the right finger, an essentially normal finding was entered. Terms such as "moderate" and "moderately severe" are not defined by regulation, and must be applied by VA adjudicators in a manner which is "equitable and just." See 38 C.F.R. 4.6. Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Given the above, the Board cannot conclude that the Veteran's disability picture rises to the level of even moderate disablement. There is essentially no impairment experienced as a result of the left toe fracture, and while the Veteran has had surgery for other non-service connected parts of his right and left foot, he does not complain of any impairment or locomotion problems with respect to the second digit on the left toe (where surgery was not performed). Accordingly, any disability is very mild in nature, and the Board will continue the noncompensable rating currently in effect. With regard to the DeLuca factors in the finger and toe, all evidence (including the Veteran's own reports during the most recent VA examination) indicates that there is no weakness, fatigability, incoordination or pain on motion, and that there is no additional functional loss with repeated motion. See DeLuca at 202. Extraschedular Consideration-Finger and Foot The Veteran is at the maximum schedular rating for his service-connected right finger disability, and the disability picture is not so severe as to warrant a higher rating under the criteria applicable for the left foot. The October 2009 VA examination has specifically indicated that the foot and finger disabilities cause no impact with regard to employment or daily activities, and the Board finds that the disability picture is not so unique so as to warrant a referral to the Director of VA's Compensation and Pension Service for consideration of an extraschedular rating. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); see also Thun v. Peake, 22 Vet. App. 111 (2008). Accordingly, the claims for an increase in disability rating for left toe and right finger disorders are denied. Benefit of the Doubt-Increase in Rating Claims In reaching the above determinations, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable regarding the claims for higher ratings for service-connected burn residuals, left toe, and right finger conditions because the preponderance of the evidence is against the Veteran's claims. 38 U.S.C.A. § 5107(b) (West 2002); see also Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Analysis-Service Connection/Hepatitis C The Veteran contends that he developed chronic hepatitis C as a result of his active service. Specifically, he alleges that his service in Vietnam, in an area where the disease was allegedly endemic, his exposure to burns during the Gulf War, and a surgery performed on active duty caused him to be exposed to the virus through subcutaneous exposure to blood and/or blood agents. The Veteran has a rather lengthy history of post-service substance abuse, and the record does reflect usage of intranasal cocaine as well as alcohol. The Board acknowledged these risk factors, and asked for a medical opinion which addressed etiology considering both the Veteran's post-service drug abuse as well as the documented blood exposure in service. In 2006, it was determined by a Veterans Health Administration (VHA) surgeon that the Veteran most likely did not have a blood transfusion during an in-service surgical procedure. In October 2009, the returned VA medical opinion indicated that the issue of etiology of hepatitis C could not be resolved without resort to speculation. In an effort to get the best answer with regard to the etiology of hepatitis C, the Board, following receipt of the October 2009 inconclusive medical opinion, dispatched the claim again to the Veterans Health Administration for an opinion from an expert in gastrointestinal medicine. The returned report, dated in May 2011, was authored by a VA staff gastroenterologist at the Durham VA Medical Center (VAMC). It is noted that this physician is also an assistant professor of gastroenterology at the Duke University Medical Center, one of the most prominent teaching hospitals in the United States (making the opinion highly probative). Essentially, the gastroenterologist stated that he had reviewed the claims file, including the service history, and noted the Veteran's reports of sharing razors in Vietnam as well as his burn injuries during Operation Desert Storm. The physician also reviewed the Veteran's drug history, which included heroin, cocaine, LSD, and marijuana abuse. The gastroenterologist described a history of intravenous drug usage noted in 1998, when the Veteran was ordered to have a test for HIV because of this risk factor. The VHA physician stated that the Veteran was part of the group of Veterans who carried the highest risk for infection with hepatitis C. The Veteran, via shared razors, was noted to have "blood exposure" in Vietnam. The physician opined that while intravenous drug abuse, which had been noted in earlier parts of the medical history, would be a greater risk for hepatitis C than the Vietnam blood exposure of Gulf War burns, he conceded that there was conflict in the record. Accordingly, in full understanding of both the in-service history and the later drug abuse, the physician stated that the record was sufficient to show that it was at least as likely as not that current hepatitis C was caused as a result of military service. The Board does not dispute that the Veteran shared razors while serving in Vietnam, and the burns in Operation Desert Storm were productive of scars that are subject to service connection. The VHA physician's opinion considered these exposures, as well as post-service risks, and came to the conclusion that the record is at least in equipoise as to an in-service etiology of hepatitis C. Given this expert favorable medical opinion, which links current hepatitis C to service, the Board will grant service connection for the disorder. (CONTINUED ON NEXT PAGE) ORDER Entitlement to a disability evaluation in excess of 10 percent for residual burn scars on the neck and chest is denied. Entitlement to a compensable disability evaluation for residuals of a fracture of the fifth metacarpal in the right hand (dominant hand) is denied. Entitlement to a compensable disability evaluation for residuals of a fracture of the second metatarsal head of the left foot is denied. Entitlement to service connection for hepatitis C is granted. ______________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs