Citation Nr: 1214105 Decision Date: 04/18/12 Archive Date: 04/27/12 DOCKET NO. 08-18 716 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for hepatitis B, also claimed as chronic liver disease. 2. Entitlement to service connection for hepatitis C. 3. Entitlement to special monthly compensation for loss of use of a creative organ. 4. Entitlement to an initial increased rating for damage to muscle groups I & II, evaluated as noncompensable prior to May 28, 2008, and as 10 percent disabling from May 28, 2008. 5. Entitlement to an initial compensable rating for scar, left anterior chest. 6. Entitlement to an increased rating for penetrating shell fragment wound with damage muscle group XXI, retained foreign bodies, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran and Spouse ATTORNEY FOR THE BOARD J. N. Moats, Counsel INTRODUCTION The Veteran had active duty service from May 1969 to April 1971. The increased rating issues come before the Board of Veterans' Appeals (Board) on appeal from an August 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The issues pertaining to service connection for hepatitis B and hepatitis C come before the Board on appeal from a November 2006 rating decision by the RO. Lastly, the issue of entitlement to special monthly compensation comes before the Board on appeal from a February 2009 rating decision issued by RO. The Board acknowledges that a prior rating action in March 2006 denied service connection for hepatitis B and hepatitis C. The RO then issued another rating decision in November 2006. The Veteran's notice of disagreement was received in November 2007. However, while not timely as to the March 2006 rating decision, the matter may still be adjudicated on a de novo basis because the March 2006 rating decision did not become final. Indeed, a July 2006 VA examination is deemed to constitute new and material evidence received within a year of the March 2006 denial. See 38 C.F.R. § 3.156(b) By rating decision in June 2009, the RO increased the muscle groups I & II disability rating to 10 percent, effective May 28, 2008. However, where there is no clearly expressed intent to limit the appeal to entitlement to a specified disability rating, the RO and Board are required to consider entitlement to all available ratings for that condition. AB v. Brown, 6 Vet.App. 35, 39 (1993). The issue therefore remains in appellate status. The Veteran testified before the undersigned Veterans Law Judge at a Board hearing at the Oakland, California, RO in February 2012. A transcript of the hearing has been associated with the claims file. The Veteran submitted additional evidence at the Board hearing along with a signed waiver of RO consideration of such evidence. The issue of entitlement to an earlier effective date for a compensable evaluation for damage to muscle groups I & II was also on appeal. However, prior to certification to the Board, in a November 2011 statement, the Veteran withdrew his appeal of this issue. Thus, there remain no allegations of errors of fact or law for appellate consideration of this issue. See 38 C.F.R. § 20.204 The issues of entitlement to service connection for hepatitis C, entitlement to special monthly compensation for loss of use of a creative organ, entitlement to an initial increased rating for damage to muscle groups I & II, entitlement to an initial compensable rating for scar, left anterior chest, and entitlement to an increased rating for penetrating shell fragment wound with damage muscle group XXI, retained foreign bodies, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Hepatitis B manifested during the Veteran's active duty service. CONCLUSION OF LAW The criteria for a grant of service connection for Hepatitis B have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011). With respect to the issue pertaining to hepatitis B, there is no need to undertake any review of compliance with the VCAA and implementing regulations in this case since there is no detriment to the Veteran as a result of any VCAA deficiency in view of the fact that the full benefit sought by the Veteran is being granted in this decision of the Board. By letter dated in March 2006, the Veteran was furnished notice of the manner of assigning a disability evaluation and an effective date. He will have the opportunity to initiate an appeal from these "downstream" issues if he disagrees with the determinations which will be made by the RO in giving effect to the Board's grant of service connection. Analysis The Veteran is seeking service connection for hepatitis B, also claimed as chronic liver disease. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in 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 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 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). In statements of record at the Board hearing, the Veteran has asserted that when he was wounded in Vietnam, the medical tools used to treat his injury may not have been sterile. He has also reported that he had a blood transfusion at that time. Service treatment records document that the Veteran received a fragment wound to the left chest in October 1969 and a chest tube was inserted. Unfortunately, the handwritten clinical record is illegible and scarce, so it is unclear whether the Veteran received a blood transfusion at that time. After service, June 2005 private lab results were positive for hepatitis B. Associated clinical records reflect an assessment of hepatitis B. The Veteran reported that he was injured in Vietnam and received a blood transfusion at that time, which was the only blood transfusion he had ever received. He also denied any intravenous drug use or high risk sexual activity. The examiner recommended that the Veteran report this finding to VA because to him it appeared to be service-connected. A contemporaneous biopsy showed fatty liver disease with severe steatosis, mild steatohepatitis, but negative for fibrosis. The Veteran was afforded a VA fee-based examination in July 2006. After reviewing the claims file and examining the Veteran, the examiner diagnosed hepatitis B and hepatitis A exposure. The examiner opined that if the Veteran did receive a blood transfusion in 1969 without any other proven risk factors for acquiring hepatitis B, then his hepatitis B was most likely caused by or the result of his injury and transfusion while in Vietnam in October 1969. Follow up VA treatment records continued to show an assessment of hepatitis B. Based on the medical evidence of record and resolving all benefit of the doubt in favor of the Veteran, the Board finds that service connection for hepatitis B is warranted. Service treatment records showed that the Veteran did sustain a shrapnel injury in October 1969. Although the service treatment record is unclear as to whether the Veteran had blood transfusion at that time, the Board has no reason to doubt the Veteran's credibility given that his statements concerning undergoing a blood transfusion have been consistent throughout the course of appeal. The Board finds it significant that the Veteran reported a history of receiving a blood transfusion in service to a private physician during the course of receiving treatment, prior to filing his claim for service connection benefits. In other words, his statements were not made in the context of his claim and, in turn, were not motivated strictly by financial gain. Based on this history, the private examiner believed that the Veteran's hepatitis B should be service-connected. Further, importantly, the VA examiner clearly found that if the Veteran did receive a blood transfusion, given the lack of any other risk factors, his hepatitis B was most likely due to his injury and transfusion. Thus, service connection is warranted in this case. See 38 U.S.C.A. § 5107(b). ORDER Service connection for hepatitis B is granted, subject to governing criteria applicable to the payment of monetary benefits. REMAND The Veteran is also seeking service connection for hepatitis C. At the July 2006 VA examination, based on private lab reports, the examiner indicated that the Veteran had no known history of hepatitis C from the records that he reviewed. However, in subsequent July 2009 VA treatment records the Veteran reported a history of hepatitis C. An assessment of hepatitis C was made. However, as there are no contemporaneous lab reports of record, it is unclear whether the basis of this diagnosis was the Veteran's own history or a positive objective finding of the hepatitis C antibody based on blood work. Importantly, a follow up treatment record shows that the active problem list included hepatitis B, rather than hepatitis C. A November 2011 letter to the Veteran from the VA indicated that his liver tests were still abnormal, but gave no indication as to the underlying cause. Accordingly, the Board finds that further information is needed and that this issue must be returned to afford the Veteran another examination to determine whether the Veteran currently has hepatitis C and, if so, whether it manifested in service. The Veteran is also seeking an increased rating for his service-connected damage to muscle groups I & II. He was afforded a VA examination in July 2008. However, at the Board hearing, the Veteran testified that his disability had increased in severity since the last examination. He described symptoms including muscle spasms, decreased range of motion, requiring assistance getting dressed and needing cortisone shots. While a new examination is not required simply because of the time which has passed since the last examination, VA's General Counsel has indicated that a new examination is appropriate when there is evidence of an increase in severity since the last examination. VAOPGCPREC 11-95 (1995). Accordingly, given the possibility of an increase in severity since the last VA examination, the Board finds that a new VA examination is necessary to determine the extent of the Veteran's service-connected damage to muscle groups I & II. The present appeal also involves the issue of entitlement to special monthly compensation for the loss of use of a creative organ. The Veteran had claimed that his erectile dysfunction is secondary to his service-connected diabetes mellitus, type II. He was afforded a VA fee-based examination in November 2008. The examiner determined that the erectile dysfunction was less likely due to diabetes, as opposed to hypertension. However, he did not offer an opinion as to whether the Veteran's erectile dysfunction was aggravated by this diabetes mellitus. See Allen v. Brown, 7 Vet. App. 439 (1995). Moreover, significantly, the examiner specifically noted that the claims file was not available for review, which is necessary given the nature of the claim. Thus, given these deficiencies, the Board finds that the Veteran should be afforded another VA examination to determine whether the Veteran's erectile dysfunction is proximately due to or aggravated by his service-connected diabetes mellitus pursuant to 38 C.F.R. § 3.310. An August 2003 rating decision granted service connection for scar, left anterior chest, and assigned a noncompensable rating. The rating decision also denied an increased rating for penetrating shell fragment wound with damage muscle group XXI, retained foreign bodies. Thereafter, in a November 2003 statement, the Veteran requested reconsideration of these issues with respect to the ratings assigned. The Board construes the Veteran's November 2003 statement as a timely notice of disagreement pursuant to 38 C.F.R. § 20.201 with respect to these issues and the RO has not issued a statement of the case. The Court has held that, where the record contains a notice of disagreement as to an issue, but no statement of the case, the issue must be remanded to the RO to issue a statement of the case, and to provide the veteran an opportunity to perfect the appeal. Manlincon v. West, 12 Vet.App. 238 (1999). Lastly, it appears that the Veteran has received continuous treatment at the VA. However, the most recent VA treatment records associated with the claims file date back to August 2009. A review of the Virtual VA paperless claims processing system also does not include any additional treatment records. As VA medical records are constructively of record and must be obtained, the RO should obtain VA treatment records from August 2009 to the present and associate them with the Veteran's record. See 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following actions: 1. The RO should obtain all of the Veteran's VA treatment records from August 2009 to the present. 2. The RO should take appropriate action pursuant to 38 C.F.R. § 19.26 (2011), to include furnishing the Veteran and his representative with an appropriate statement of the case with respect to the issues of entitlement to an initial compensable rating for scar, left anterior chest, and entitlement to an increased rating for penetrating shell fragment wound with damage muscle group XXI, retained foreign bodies. The Veteran and his representative should be advised of need to file a timely substantive appeal if the Veteran desires to complete an appeal as to these issues. 3. Thereafter, the RO should schedule the Veteran for an appropriate VA examination to ascertain the etiology of any hepatitis C. The claims file must be made available to the examiner for review in connection with the examination. All medically necessary tests, including appropriate blood work, should be accomplished. After examining the Veteran and reviewing the claims file, the examiner should clearly report whether the Veteran currently has hepatitis C. If so, the examiner should offer an opinion as to whether it is at least as likely as not (a 50% or higher degree of probability) that the Veteran's hepatitis C is related to service. In so doing, the Veteran's lay statements should be considered. 4. Thereafter, the RO should arrange for the Veteran to undergo an appropriate VA muscle examination. The claims folder must be made available to the examiner for review. All medically necessary tests should be performed. The examiner should address whether the Veteran's disability is considered moderate, moderately severe, or severe pursuant to Diagnostic Code 5301. See 38 U.S.C.A. §4.73. With respect to the left shoulder, the examiner should conduct range of motion testing and, to the extent possible, should indicate (in degrees) the point at which pain is elicited on range of motion testing. The examiner should also offer an opinion as to the extent, if any, of additional functional loss due to incoordination, weakness and fatigue, including during flare-ups. 5. The Veteran should be scheduled for an appropriate VA examination to determine the etiology of his erectile dysfunction. It is imperative that the claims file be made available to the examiner for review in connection with the examination. All medically necessary tests should be performed. After reviewing the claims file and examining the Veteran, the examiner should offer an opinion as to the following: a) Whether it is at least as likely as not (a 50% or higher degree of probability) that erectile dysfunction is proximately due to, or caused by, the Veteran's service-connected diabetes mellitus, type II. b) Whether it is at least as likely as not (a 50% or higher degree of probability) that erectile dysfunction has been aggravated (permanently worsened beyond the natural progression of the disease) by the Veteran's service-connected diabetes mellitus, type II. For any aggravation found, the examiner should state, to the extent possible, the baseline of symptomatology and the amount of aggravation beyond the baseline symptomatology. A detailed rationale for all opinions expressed should be provided. The examiner should specifically address the Veteran's lay assertions that his erectile dysfunction only began after being diagnosed with diabetes mellitus, type II; whereas, he had been on hypertension medications for 10 years with no dysfunction. 6. In the interest of avoiding future remand, the RO should then review the examination reports to ensure that the above questions have been clearly answered and a rationale furnished for all opinions. If not, appropriate action should be taken to remedy any such deficiencies in the examination reports. 7. After completing the requested actions, and any additional notification and/or development warranted by the record, the RO should readjudicate the issues on appeal. If the benefits sought on appeal remain denied, the RO should furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and affords the appropriate time period to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The appellant has the right to submit additional evidence and argument on the matter or matters 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 that are 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 Supp. 2011). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs