Citation Nr: 1230431 Decision Date: 09/06/12 Archive Date: 09/10/12 DOCKET NO. 08-01 452 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. R. Mullins, Associate Counsel INTRODUCTION The Veteran had active service from February 1969 to December 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, denying the claim currently on appeal. An April 2006 rating decision suggested that new and material evidence was necessary to reopen the claim of entitlement to service connection for hepatitis C because the prior rating decision of October 2005 was final. Rating actions from which an appeal is not timely perfected become final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. However, the record reflects that the Veteran was afforded a VA examination for his hepatitis C in April 2006. As this evidence was received within one year of the October 2005 decision, it must be related back to the original claim. 38 C.F.R. § 3.156(b) (2011); see also Buie v. Shinseki, 24 Vet. App. 242, 252-52 (2010); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006). A timely notice of disagreement was also received in August 2006 following an additional rating decision of April 2006. This notice of disagreement did not specify which rating decision the Veteran was in disagreement with, but it was received within one year of the October 2005 rating decision. As such, the October 2005 rating decision is not final and the original claim of March 2005 is still pending. While the Veteran's appeal was pending before the Board, the RO issued a rating decision in October 2011 granting the Veteran's claim of service connection for bilateral hearing loss. Since this grant constituted a full grant of the benefits sought on appeal, this claim is no longer in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). FINDING OF FACT Hepatitis C manifested during active military service. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for hepatitis C have been met. 38 U.S.C.A. §§ 1110, 1154(b), 5103(a), 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist 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). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Relevant Laws and Regulations Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993); see also Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). To establish service connection, there must be: (1) a medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999) (citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996)). Facts and Analysis The Veteran contends that he is entitled to service connection for hepatitis C. Having considered all of the evidence of record, the Board finds that the Veteran's hepatitis C did in fact manifest during his active military service. As such, service connection is warranted. The Veteran's service treatment records confirm that he was diagnosed with viral hepatitis during active military service. A February 1970 record notes that this condition was incurred in the line of duty. The Veteran also received treatment for viral hepatitis in March 1970. While a specific diagnosis of hepatitis C was not offered at this time, the Board is cognizant of the fact that this specific type of hepatitis was unknown as of 1970. The first post-service evidence of hepatitis C is a March 2004 VA outpatient treatment record. It was noted that the Veteran had prior exposure to blood/blood products, a history of alcohol abuse and that he was a Vietnam era Veteran. As such, labs were ordered for hepatitis C. It was noted that the Veteran had hepatitis A during military service, but the Veteran's service treatment records do not in fact reflect the specific type of hepatitis infection of 1970. A June 2004 record confirms that hepatitis C was diagnosed. In August 2004, the Veteran endorsed a history of a blood transfusion in 1998. The Veteran was afforded a VA examination for his hepatitis C in April 2006. The Veteran endorsed a history of blood transfusion in 1998 for a questionable gastrointestinal (GI) condition. He denied a history of intravenous drug use, multiple sexual partners, or any tattoos. He did have a history of a body piercing in the left ear in 1969 and intranasal cocaine use while in service. The examiner concluded that an opinion as to the etiology of the Veteran's hepatitis C could not be offered without resort to mere speculation. Subsequent treatment records reveal that the Veteran continued to be monitored by VA for his hepatitis C. A September 2008 abdominal ultrasound revealed hepatic echogenicity suggestive of early cirrhosis. However, an October 2009 ultrasound was deemed to be normal. A July 2010 record also notes a history of alcohol dependence, cannabis dependence and cocaine abuse. According to a February 2010 addiction risk assessment, the Veteran last used alcohol in January 2010 and that he started using cocaine at the age of 58, last using it in July 2007. In June 2012, the Board referred the Veteran's claim to a VA physician so that an opinion regarding etiology could be provided. In July 2012, VA received a written opinion from the Chief physician of the Infectious Disease Section of the VA Healthcare System in Pittsburgh, Pennsylvania. According to this physician, it was at least as likely as not that the Veteran contracted hepatitis C while serving in the military. The physician explained that the Veteran had a documented episode of acute hepatitis while in Vietnam. In 1970, it was not possible to make a specific diagnosis of hepatitis C, as this virus had not yet been identified. It is impossible to distinguish hepatitis C from other viral forms of acute hepatitis based on clinical presentation alone, but hepatitis C results in chronic infection in the majority of those infected. The physician also noted that hepatitis C was not transferred by the inhalation of marijuana or cocaine, and that a blood transfusion in 1998 would have a very low risk of transferring the virus due to routine screenings performed at that time. Therefore, the physician opined that the Veteran's history was quite compatible with hepatitis C contracted while serving in Vietnam, with the infection continuing to the present. The above evidence demonstrates that the Veteran is entitled to service connection for hepatitis C. There is confirmed evidence of viral hepatitis in 1970 during military service. As explained by the VA physician in July 2012, hepatitis C could not be identified at this time, but most people who contract hepatitis C develop a chronic infection. Furthermore, while there is a history of blood transfusion, cocaine use and marijuana use following military service, the July 2012 physician explained that these activities were very unlikely to result in an infection. Rather, the Veteran's in-service viral hepatitis was the likely source of his infection. While the April 2006 VA examiner felt that an opinion regarding etiology would be speculative in nature, the examiner did not suggest that an etiological relationship to military service was impossible or unlikely. As such, the record contains no medical evidence to contradict the opinion of the July 2012 VA physician, and service connection is warranted. Resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for hepatitis C is warranted. See 38 U.S.C. § 5107(b). The claim is granted. ORDER Service connection for hepatitis C is granted. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs