Citation Nr: 1211589	
Decision Date: 03/30/12    Archive Date: 04/05/12

DOCKET NO.  10-29 028	)	DATE
	)
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1. Entitlement to service connection for hepatitis C.

2. Entitlement to service connection for major depressive disorder, claimed as secondary to hepatitis C.


REPRESENTATION

Veteran represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

T. Blake, Associate Counsel




INTRODUCTION

The Veteran served on active duty from July 2007 to October 2008. 

This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO), which in pertinent part, denied service connection for hepatitis C and major depressive disorder.

In a July 2010 substantive appeal, via a VA Form 9, the Veteran requested a personal hearing before the Board at the RO then submitted a written request to withdraw his request in December 2011. The Board finds there is no hearing request pending at this time. 38 C.F.R. § 20.702(e) (2011).    

The issue of entitlement to service connection for major depressive disorder, claimed 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

1. All relevant evidence necessary for an equitable disposition of the Veteran's appeal has been obtained.

2. Hepatitis C was not noted at the time of the Veteran's examination, acceptance and enrollment for service; hence the presumption of soundness applies to this disorder.

3. In February 2008, test results were positive for the hepatitis C virus, and the Veteran was diagnosed with chronic active hepatitis C in March 2008.

4. There is no proof that hepatitis C preexisted service. 

CONCLUSION OF LAW

Hepatitis C was incurred in service. 38 U.S.C.A. §§ 1110, 1111, 5103 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2011).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. 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, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West Supp. 2011); 38 C.F.R. § 3.159(b) (2011); 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 Veterans 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; and (3) inform the claimant about the information and evidence the claimant is expected to provide.

Given the fully favorable decision discussed below for the issue of entitlement to service connection for hepatitis C, 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).

II. Decision

In a June 2009 personal statement, via a VA Form 21-4138, the Veteran reported that while completing Navy career training school he donated blood and was informed by the Keesler Air Force Base (AFB) that his blood had traces of hepatitis C. After undergoing further testing at the Gulfport Seabee Base, his test results were positive for hepatitis C. As a result, the Veteran contends that service connection is warranted for hepatitis C.

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A § 1110 (West 2002). Service connection may also be granted for any disease after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2011).

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).

When there is a chronic disease in service, or within the presumptive period under 38 C.F.R. § 3.307, subsequent manifestations of the same chronic disease at any later date, however remote, is warranted to establish service connection, unless the subsequent manifestations are clearly attributable to intercurrent causes. See 38 C.F.R. § 3.303(b) (2011); see also Savage v. Gober, 10 Vet. App. 488, 498 (1997). A chronic disease in service requires a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word 'chronic.' Id. When the disease identity is established, there is no requirement of evidentiary showing continuity; however, if a condition noted during service is not shown to be chronic or the diagnosis of chronicity may be legitimately questioned, then a showing of continuity of symptomatology after service is required to support the claim. Id.

A Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except (1) as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or (2) where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C.A. §§ 1111, 1137 (West 2002); 38 C.F.R. § 3.304(b) (2011). 

Only such conditions as recorded in examination reports are to be considered as "noted," and a history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions, but will be considered together with all other material evidence in determinations as to inception. See 38 C.F.R. § 3.304(b) (2011); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995).

Where the injury or disease at issue is noted at the time of the examination, acceptance, and enrollment for service, it is characterized as pre-existing and will be considered to have been aggravated by active service where there is an increase in disability during such service. See 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2011). The presumption of aggravation is rebutted when VA shows by clear and unmistakable evidence that the pre-existing injury or disease underwent an increase in severity due to the natural progress of the disease during wartime service or peacetime service after December 31, 1946. Id.; see also Wagner v. Principi, 370 F.3d 1089, 1094-96 (Fed. Cir. 2004).

Where the disease or injury at issue is not noted at the time of the examination, acceptance, and enrollment for service, the Veteran is presumed to have been in sound condition. See 38 U.S.C.A. §§ 1111, 1137 (West 2002); 38 C.F.R. § 3.304(b) (2011). The presumption of soundness is rebutted when VA shows by clear and unmistakable evidence (1) that the injury or disease existed prior to service and (2) that pre-existing injury or disease was not aggravated by service. Id.; see also VAOPGCPREC 3-2003 (July 16, 2003).

In order to establish service connection for hepatitis C, the evidence must show that hepatitis C infection, risk factor(s), or symptoms were incurred in or aggravated by service. 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. No compensation shall be paid if the disability resulting from injury or disease in service is a result of the Veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C.A. §§ 105, 1110 (West 2002). 

When all the evidence is assembled, 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  

After review of the evidentiary record, the Board concludes that service connection is warranted for hepatitis C.  

At the time of examination, enrollment, and acceptance for service, the examining physician marked "no" the June 2007 report of medical history after questioning the Veteran regarding his use of marijuana or alcohol or abuse of other drugs. The examining physician also documented on the June 2007 entrance examination report that the Veteran had a tattoo on his shoulder and there were no defects or diagnoses noted. Since a pre-existing disorder of hepatitis C was not noted on the June 2007 entrance examination report, the Veteran is presumed to have been in sound condition at the time of entry to service. Therefore, the question for consideration is whether VA has rebutted the presumption of soundness by presenting clear and unmistakable evidence that the Veteran's hepatitis C (1) existed prior to service and (2) that a pre-existing hepatitis C disorder was not aggravated by service. 

In a December 2007 memorandum, from the Keesler AFB, the Veteran was informed that antibody testing of his November 2007 blood donation to the Armed Services Blood Program revealed positive results for the hepatitis C virus. In January 2008, he underwent a hepatitis C panel test at the Navy Branch Health Clinic (NBHC) Gulfport outpatient facility and reported a history of tattoos and three sexual partners. February 2008 results were positive for the hepatitis C virus. The next month, he underwent a liver biopsy and was formally diagnosed with chronic active hepatitis C. After separation from service and in furtherance of his claim on appeal, the Veteran underwent a July 2009 VA liver, gall bladder, and pancreas examination. The VA examiner assessed the Veteran with chronic hepatitis C with status post treatment for four months in 2008 with normalization of his liver enzymes, currently stable. 

As such, the Board finds that VA has not shown by clear and unmistakable evidence that the Veteran's hepatitis C existed prior to his period of active service. In fact, the evidence, as noted above, shows his hepatitis C was incurred in service and that he has a current diagnosis of the chronic disorder. Therefore, the remaining question for consideration, of whether a pre-existing hepatitis C disorder was not aggravated by service, is rendered moot and service connection for hepatitis C is warranted.

Here, the (AOJ) did not address the presumption of soundness. Rather, it was concluded that the pre-service tattoo was the only possible source of the infection. However, the service department did not reach this conclusion. Furtherance, when initially evaluated it was reported that he had three sexual partners as potential contacts. The current record rises to nothing more than wild speculation and such speculation does not establish clear and unmistakable evidence of pre-service exposure.


ORDER

Service connection for hepatitis C is granted.


REMAND

The record as it stands is currently inadequate for the purpose of rendering a fully informed decision as to the claim of entitlement to service connection for major depressive disorder, claimed as secondary to hepatitis C. Where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order for VA to fulfill its statutory duty to assist the Veteran to develop the facts pertinent to the claim. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993).

The Veteran asserted in his October 2008 for Application for Compensation and/or Pension, via a VA Form 21-526, that service connection is warranted for depression due to his hepatitis C medication.

On VA examination for a mental disorder in July 2009, the Veteran was diagnosed with major depressive disorder. The examiner opined that the diagnosed disorder represented a preexisting condition because of the Veteran's long history of major depressive episodes dating back to childhood. Nonetheless, the examiner also "estimated that the long-term impact of the Veteran's hepatitis C condition on his major depressive disorder will be a mild aggravation of the Veteran's major depressive disorder."

Because VA undertook to provide an examination and medical opinion for the claim on appeal, the Board must ensure that the examination report and opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Stefl v. Nicholson, 21 Vet. App. 120 (2007) (noting that a medical opinion must describe the disability in sufficient detail so the Board can make a fully informed evaluation of the disability). In this case, the July 2009 VA medical opinion is inadequate in light of the fact the Veteran is now service-connected for hepatitis C. As a result, the Board finds that an additional VA medical opinion is necessary to ascertain whether it is at least as likely as not that the Veteran's major depressive disorder is proximately due to or aggravated by his service-connected hepatitis C.
	
Therefore, in order to give the Veteran every consideration with respect to the present appeal and to ensure due process, this matter is REMANDED for the following actions:  
	
1. Obtain and associate with the claims file any outstanding treatment records pertaining to the Veteran's major depressive disorder and service-connected hepatitis C from May 2009, the date of the most recent treatment record, to the present. If any requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file, and the Veteran and his representative should be informed in writing.

2. Obtain all service personnel records and associate those records with the claims file

3. Afford the Veteran the appropriate VA examination to determine the etiology of his major depressive disorder. All efforts made to schedule this examination should be documented and associated with the claims file. The claims file must be made available to the examiner for review, and the examination report should reflect that such review has been accomplished. All appropriate testing should be conducted, if necessary. 

The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's major depressive disorder is proximately due to or aggravated by his service-connected hepatitis C. If the examiner finds that the Veteran's major depressive disorder was aggravated by the service-connected hepatitis C, he/she should indicate the degree of disability before it was aggravated and its current degree of disability. If the major depressive disorder is not proximately due to or aggravated by hepatitis C, the examiner must explicitly state so.  

The VA examiner must provide a full explanation for all opinions rendered, and include notation of the facts, medical evidence, and/or medical principles used to reach such conclusions. If the examiner cannot provide the requested information without resort to speculation, it must be so stated with reasons why. 

4. Thereafter, the remaining issue on appeal should be readjudicated on a secondary basis. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate time period within which to respond thereto.

The Veteran has the right to submit additional evidence and argument on the matter 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 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 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2011).


_________________________________________________
H. N. SCHWARTZ 
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2011).






Department of Veterans Affairs