Citation Nr: 1214243 Decision Date: 04/19/12 Archive Date: 04/27/12 DOCKET NO. 08-20 316 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for hepatitis C. 2. Entitlement to an initial disability rating in excess of 10 percent for degenerative joint disease, lumbar spine (low back disability). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION The Veteran served on active duty from August 1972 to August 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which denied service connection for hepatitis C; and granted service connection for low back disability and assigned a 10 percent disability rating effective April 9, 2007. The Veteran's low back disability claim 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. Service connection is in effect for low back disability. 2. Resolving all reasonable doubt in the Veteran's favor, hepatitis C had its onset in service. CONCLUSION OF LAW Hepatitis C was incurred in service. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2011). REASONS AND BASES FOR FINDING AND CONCLUSIONS In this decision, the Board grants service connection for hepatitis C, which represents a complete grant of the benefit sought on appeal. As such, no discussion of VA's duty to notify or assist is necessary. The Veteran asserts that he has hepatitis C due to service. Specifically, as reflected in a July 2008 Substantive Appeal, he stated that during service he took illegal drugs and shared needles in order to get relief from the pain of problems with his back, hip, neck, shoulder, head, and lower extremities. He also notes that he obtained a tattoo in service. The thrust, however, of the Veteran's claim is that his hepatitis C is directly to taking illicit drugs during and after service in self treatment of his low back disability. The service treatment records show that the Veteran was treated for his low back problems and at separation his spine was found to be abnormal. Indeed, the Report of Medical Examination at service separation reflects that the Veteran reported, "My back bothers me from an injury when I fell last summer. Especially when I do hard work [sic]." The examining physician noted that the Veteran had injured his coccyx and was treated for continuous symptoms. The examiner added that the Veteran's treatment had "fair results." In November 2011, the Board requested the opinion of a medical specialist from the Veterans Health Administration (VHA), which was received in January 2012 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; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). Additionally, under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability that is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), interpreting 38 U.S.C.A. § 1110 in light of its legislative history, held that VA compensation benefits are available for alcohol or drug-related disability, here hepatitis C, that arises secondarily from a service-connected disorder, here low back disability. Id. at 1370. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit, citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, the Board, when considering whether lay evidence is satisfactory, the Board may properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). VA treatment records dated from 2005 to 2007 show treatment for hepatitis C. A hepatitis C risk assessment in October 2005 includes risk factors of multiple sexual partners, past or present; tattoo or repeated body piercing; and intemperate alcohol use. VA treatment records in March 2007 show that the Veteran reported at that time that he was diagnosed with some kind of hepatitis in the 1970s; and that in 1995 he stopped drinking alcohol and stopped intravenous drug use (cocaine) that had included sharing of needles. In November 2011 the Board requested a medical expert opinion from the Veterans Health Administration (VHA) to determine whether it is at least as likely as not that any hepatitis C is related to or had its onset during service, to specifically include whether it is due to a right upper arm tattoo obtained in service or in-service immunizations. In a January 2012 responsive advisory medical opinion letter, a medical specialist physician who reviewed the Veteran's medical record history, provided an opinion as to whether there was an etiological relationship between the Veteran's claimed hepatitis C and his active service. The specialist reviewed the clinical history during service and thereafter. The specialist noted that hepatitis C was diagnosed in about 2005, that the records showed that the Veteran had stopped intravenous drug use in 1995 and that there had been sharing of needles as reflected in a March 2007 gastroenterology physician note. A January 2006 psychiatry physician note stated that there was a "25 year cocaine habit." The examiner noted that the Veteran stated that he used intravenous drugs and shared needles while in service and noted that he had received a tattoo while in service. The specialist noted that the first symptoms of hepatitis C, if they appear at all, will usually be many years after the infection. The specialist opined that the Veteran's risk factors for hepatitis C were his tattoo, intravenous drug use, and possibly, though not proven as a cause, vaccinations with contaminated injectors while in service. The specialist opined that the Veteran's strongest risk factor for hepatitis C was his long-standing history of intravenous drug use with sharing of needles, which was documented in the medical record as a 25 year history of intravenous cocaine use that ended in 1995. The specialist opined that it was likely that the Veteran's hepatitis C was related to the drug use but opined that it was less likely than not related to service because the long-term drug use involved only 2 years of in-service drug use as opposed to 23 years of post-service drug use. Here, the Veteran's competent statements, which the Board finds to be credible, indicate that during service and for a long time thereafter he used drugs to self-medicate for the low back pain associated with his service-connected low back disability. In light of that factual background and the VHA specialist's opinion linking the Veteran's 25-year use of drugs to the onset of his hepatitis C, the Board finds that the evidence supports the Veteran's claim. As such, given the opinion offered by the VHA specialist, the Board finds that the Veteran's hepatitis C is proximately due to his service-connected low back disability. ORDER Service connection for hepatitis C is granted. REMAND A remand of the low back rating claim is necessary for the following reasons. The Veteran was last formally examined by VA for his low back disability in August 2007. In the Veteran's Substantive Appeal the Veteran stated that because of his low back pain he was unable to make it through the day without taking medication, and that if he is not on his pain killers, he cannot get out of bed because the pain is so intense. He further indicated that at the time of the August 2007 VA examination, he had taken so much medicine to relieve the pain that this masked the actual level of severity of his low back disability. Review of the claims file shows that a large number of VA treatment records dated from 2005 through March 2007 were obtained in April 2007, including such records that address the Veteran's low back disability, show that the Veteran has been prescribed hydrocodone by VA to treat his low back disability. Further, there is no indication that the RO has requested any later dated VA treatment records after April 2007 even though there is no indication suggesting that the Veteran stopped receiving VA treatment beyond that time. A review of files contained in Virtual VA indicates that no VA treatment records have been added to that system. Based on the foregoing, the Board finds the August 2007 VA examination is not adequate for rating purposes to decide the low back disability rating claim on appeal. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). VA's duty to assist includes providing an adequate examination when such an examination is indicated. Stefl, at 123. An examination is adequate if it "takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one." Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). An examination must be based upon consideration of the Veteran's prior medical history and examinations. Stefl, 21 Vet. App. at 123. In light of the potentially outstanding records including any records of ongoing treatment, and the Veteran's statements discussed above, the Board finds that another VA examination should be afforded the Veteran. On remand the claims folder should be made available for review by the examiner. In the report of such VA examination, the examiner must fully describe the functional effects caused by the Veteran's low back disability including any neurological impairment associated with the low back disability. Finally, as the record suggests that the Veteran may be receiving medical care for his lumbosacral spine, on remand the RO must obtain and associate any outstanding pertinent treatment records with the claims file. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran identify any outstanding VA or private treatment records pertaining to his service-connected degenerative joint disease, lumbar spine. Take appropriate measures to request copies of any outstanding records of pertinent VA or private medical treatment and associate these with the claims folders, including any VA treatment records dated from March 2007. 2. Notify the Veteran that he may submit statements from him and others describing fully the various symptoms and impairment resulting from his degenerative joint disease of the lumbar spine, and the impact of this on his ability or inability to work. 3. After completion of the above development, schedule the Veteran for appropriate VA examinations to determine the nature, extent, frequency and severity of any orthopedic and neurologic impairment related to or part of the Veteran's degenerative joint disease, lumbar spine. The claims folder should be made available to and be reviewed by the examiner and all necessary tests should be conducted. The examiner should identify all thoracolumbar spine orthopedic and neurologic pathology found to be present. The orthopedic aspect of the examination should include all indicated tests and studies, to include range of motion studies expressed in degrees and in relation to normal range of motion, and should describe any pain, weakened movement, excess fatigability, and incoordination present. To the extent possible, the examiner should express any functional loss in terms of additional degrees of limited motion of the Veteran's low back, i.e., the extent of the Veteran's pain-free motion. In addition, to the extent possible, the examiner should state whether the low back disability has been productive of any incapacitating episodes, defined as periods of acute signs and symptoms that require bed rest prescribed by a physician or treatment by a physician. If so, describe the frequency and duration of those episodes. The examiner must discuss the nature and severity of any lower extremity radiculopathy or neuropathy found to be present and must also state whether the Veteran has any other objective neurologic abnormalities such as bowel or bladder problems, or erectile dysfunction or other neurogenic conditions associated with his lumbar spine disability. The examiner should comment on the impact of the Veteran's low back disability on his ability to work. The examiner should set forth a complete rationale for all findings and conclusions in a legible report. 4. Then readjudicate the appeal. If any benefit sought remains denied, the Veteran and his representative must be furnished a Supplemental Statement of the Case and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. 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). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs