Citation Nr: 1328329 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 10-03 414 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for hepatitis C, for the purpose of accrued benefits. 2. Entitlement to service connection for chronic liver disease, claimed as secondary to hepatitis C, for the purpose of accrued benefits. 3. Entitlement to service connection for hypothyroidism, claimed as secondary to hepatitis C, for the purpose of accrued benefits. 4. Entitlement to service connection for anemia, claimed as secondary to hepatitis C, for the purpose of accrued benefits. 5. Entitlement to service connection for chronic fatigue, stress, depression, anxiety, and poor immune response, claimed as secondary to hepatitis C, for the purpose of accrued benefits. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel INTRODUCTION The Veteran served on active duty from November 1971 to November 1975. He died in April 2010. The appellant is his surviving spouse. This appeal to the Board of Veterans' Appeals (Board) arose from rating decisions issued in March and April 2008, in which the RO denied the Veteran's claims for service connection for hepatitis C and chronic liver disease, hypothyroidism, anemia, chronic fatigue, stress, depression, anxiety, and poor immune response, as secondary to hepatitis C. In March and May 2008, the Veteran filed a notice of disagreement (NOD) as to the denial of his service connection and secondary service connection claims. A statement of the case (SOC) was issued in November 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in January 2010. After the Veteran's death in April 2010, in October 2010, the appellant filed a formal request to continue the Veteran's appeal pursuant to the newly-enacted Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008) (creating a new 38 U.S.C.A. § 5121A allowing substitution in the case of the death of a claimant who dies on or after October 10, 2008). This change in law permits an eligible person to process any pending claims when a Veteran dies to completion. Such request must be filed not later than one year after the date of the Veteran's death and, as provided for in this new provision, a person eligible for this substitution will include "a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title . . . ." Id.; 38 U.S.C.A. § 5121A (West 2002). Thereafter, in April 2011, the RO determined that the appellant could properly be substituted as the claimant in the pending appeal and, as such, issued a notice letter advising her of how to substantiate DIC and accrued benefits claims. In his January 2010 substantive appeal, the Veteran had requested a hearing before the Board to be held in Washington, DC. As this request for a hearing was never withdrawn, the appellant was scheduled for a Board hearing and, in February 2012, testified before the undersigned Veterans Law Judge in Washington, DC. A transcript of that hearing is of record. In April 2013, the Veteran's representative submitted additional medical evidence directly to the Board, with a waiver of initial RO consideration of the evidence. This evidence is accepted for inclusion in the record on appeal. See 38 C.F.R. §§ 20.800, 20.1304 (2012). The Board's decision addressing the claim for service connection for hepatitis C is set forth below. The claims for service connection for chronic liver disease, hypothyroidism, anemia, chronic fatigue, stress, depression, anxiety, and poor immune response, each claimed as secondary to hepatitis C, are addressed in the remand following the order; those matters are being remanded to the RO, via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant when further action, on her part, is required. FINDINGS OF FACT 1. All notification and development actions needed to render a fair decision on the matter herein decided have been accomplished. 2. The Veteran was diagnosed with hepatitis C prior to his death, and probative medical opinion evidence indicates the disability was as likely as not present during service, and likely resulted from the Veteran's exposure to blood-namely, five CCs of gamma globulin-in service. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for hepatitis C are met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Given the favorable disposition of the claim for service connection for hepatitis C herein, the Board finds that all notification and development actions needed to fairly adjudicate the claim have been accomplished. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as cirrhosis of the liver, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran's claimed hepatitis C is not one of the disabilities listed under 38 C.F.R. § 3.309(a) and thus, is not subject to presumptive service connection for a chronic disability or service connection based on continuity of symptomatology. Nevertheless, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Review of the record reveals that the Veteran was diagnosed with hepatitis C prior to his death. See January 2008 VA examination report. The appellant has asserted that the Veteran's hepatitis C was incurred as a result of several potential exposures to the hepatitis C virus in service. During the pendency of this claim, the appellant has consistently asserted that the Veteran's hepatitis C was incurred as a result of air gun inoculations that were given during boot camp. Prior to his death, the Veteran asserted that none of the air guns were sterilized between uses and that many people were bleeding from cuts caused by the guns. See May 2007 statement from the Veteran. The appellant has also asserted that the Veteran's hepatitis C was incurred as a result of exposure to other people's blood during service. In this regard, the Veteran reported that several passengers were injured during a helicopter crash during service and he was exposed to their blood while he cared for their injuries. During a February 2013 Board hearing, the appellant testified that she recalls the Veteran telling her that, while serving on kitchen duty, someone cut himself severely and the Veteran was exposed to that person's blood. In addition, the claims file includes a March 1972 service treatment record (STR) which shows that the Veteran was given "5 cc of GG [gamma globulin] for "contact with hepatitis." The STR does not contain any other information regarding the Veteran's contact with hepatitis, including the details of the reported contact with hepatitis. There is also no medical evidence or opinion of record that addresses whether the Veteran's hepatitis C is related to the in-service contact with hepatitis noted in the March 1972 STR. As for other risk factors, the appellant (like the Veteran before her) has consistently asserted that the Veteran had no other risk factors for hepatitis C, including no tattoos, drug or alcohol abuse, or other high risk behaviors. See February 2013 Board hearing transcript; see also May 2007 statement from Veteran. The evidentiary record contains several medical opinions which address whether the Veteran's hepatitis C was related to his military service, including medical opinions rendered in conjunction with VA examinations conducted in January 2008 and November 2009. Indeed, the claims file reflects both positive and negative medical opinions on the question of whether there existed a relationship between the Veteran's hepatitis C and service. However, the medical opinions are inadequate to resolve that question because they either (1) do not contain a rationale in support of the conclusion provided (see February 2007 statement from Dr. T.S and May 2007 statement from Dr. P.B.); (2) are speculative (see May 2007 statement from Dr. N.R.); and/or (3) do not address each potential in-service exposure raised in the record (see October 2009 statement from Dr. W.H and VA examination reports dated in January 2008 and November 2009). As a result, in May 2013, the Board sent the file to a Veterans Health Administration (VHA) medical expert for an advisory opinion, which was received in July 2013. In the advisory opinion, Dr. S.J.H. noted that the record does not provide sufficient detail to determine the exact source of hepatitis C infection but he also noted that the organism is transmitted by blood exposure particularly when transfused. In this regard, Dr. S.J.H. noted that the exposure to 5 cc of GG (gamma globulin) would represent the greatest risk of disease acquisition, noting that gamma globulin was not screened for hepatitis C during the specified time frame due to technical inability. Dr. S.J.H. further noted that gamma globulin was ultimately recognized as a vector for hepatitis C acquisition once study for virus infectivity was ultimately possible. As such, Dr. S.J.H. opined that it is at least as likely as not that the Veteran was infected with hepatitis C virus during his active military service. In making this determination, Dr. S.J.H. noted the Veteran's other potential exposures to the hepatitis C virus during service, including air gun inoculation, blood exposure during the helicopter crash, and blood contact during the kitchen accident, but he noted that these incidents represent lesser potential risk in order of possibility. Dr. S.J.H. further noted that the record does not provide alternative civilian sources defining high risk exposure for hepatitis C. In the instant case, the Board finds that the June 2013 VHA advisory medical opinion is the most persuasive evidence of record with respect to whether the Veteran's hepatitis C was incurred in or as a result of his military service. In evaluating this claim, the Board finds the evidentiary record does not contain another medical opinion of record to which more probative weight should be accorded, as the other opinions of record are afforded lessened or no probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the relevant inquiry when assessing the probative value of a medical opinion is whether the opinion reflects application of medical principles to an accurate and complete medical history). Here, the June 2013 VHA medical advisory opinion reflects consideration of all of the Veteran's potential in-service exposures to hepatitis C, the post-service evidence which does not contain evidence of a high-risk exposure for hepatitis C, and the other lay and medical evidence of record. In sum, the record contains evidence showing that the Veteran was exposed to 5 cc of gamma globulin during service, as well as persuasive medical opinion indicating that the Veteran's hepatitis C was likely incurred in or caused by his exposure to 5 cc of gamma globulin during military service. Therefore, given the facts of this case, and resolving all reasonable doubt in the Veteran's favor, the Board concludes that the criteria for service connection for hepatitis C are met. See 38 C.F.R. § 3.102. See also 38 U.S.C.A. § 5107; Gilbert, 1 Vet. App. at 53-56. ORDER Service connection for hepatitis C, for the purpose of accrued benefits, is granted. REMAND The appellant has asserted that the Veteran incurred several disabilities as a result of his hepatitis C disability, including chronic liver disease, hypothyroidism, anemia, and chronic fatigue with stress, depression, anxiety, and poor immune response. The physician who provided the VHA advisory opinion in April 2013 noted that hepatitis C causes chronic liver disease commonly associated with anemia, fatigue, depression, and poor immune responsiveness. Dr. S.J.H. also noted that hepatitis C has a link to hypothyroidism in men, which is uncommon, but he stated that symptoms overlap between the two diseases resulting in an increase in severity in anyone infected with both illnesses. While the April 2013 advisory medical opinion purported to address the Veteran's secondary service connection claims, the Board finds that there remain questions as to whether the claimed conditions are manifestations of the Veteran's hepatitis C or separate and distinct disabilities for which service connection may be granted. In this regard, the Board notes that stress, anemia, fatigue, and poor immune responsiveness are symptoms or clinical findings, as opposed to disabilities that are generally recognized as chronic conditions. Moreover, it is not clear if the Veteran has a current diagnosis of chronic liver disease other than hepatitis C, hypothyroidism, or an acquired psychiatric disability manifested by depression or anxiety, as the physician who provided the April 2013 VHA advisory medical opinion did not identify the evidence of record which confirms a diagnosis of any of these claimed disabilities. Therefore, while the Board regrets any additional delay in processing this appeal, further medical opinion is needed to resolve the secondary service connection claims remaining on appeal. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). While these matters are on remand, the RO should also give the appellant another opportunity to provide information and/or evidence pertinent to the claims on appeal. The RO's letter to the appellant should explain that she has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should obtain any additional evidence for which the appellant provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties imposed by the VCAA. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims remaining on appeal. In adjudicating each claim, the RO should consider all evidence added to the record since the RO's last adjudication of the claims. Accordingly, these matters are hereby REMANDED for the following action: 1. Send to the appellant and her representative a letter requesting that the appellant provide sufficient information, and if necessary, authorization, to enable it to obtain any additional evidence pertinent to the secondary service connection claims on appeal that is not currently of record. Explain how to establish entitlement to service connection for chronic liver disease, hypothyroidism, anemia, and chronic fatigue with stress, depression, anxiety, and poor immune response, as secondary to service- connected hepatitis C. Clearly explain to the appellant that she has a full one-year period to respond (although VA may decide the claims within the one-year period). 2. If the appellant responds, assist her in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the appellant and her representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for an appropriate VA physician to review the entire claims file, to include a complete copy of this REMAND, and request that he/she provide opinion that addresses the following. The physician should clearly indicate whether the record reflects that the Veteran had chronic liver disease (other than hepatitis C), hypothyroidism, or an acquired psychiatric disability manifested by depression and/or anxiety. The physician should also identify the evidence of record which confirms (or disproves) the diagnosis of each identified disability. With respect to claimed anemia, chronic fatigue, stress, and/or poor immune response, for each, the physician should indicate whether such were symptoms or manifestations of the Veteran's hepatitis C or, whether it/they were indicative of distinct disability(ies) separate from hepatitis C. A conclusion in this regard must be provided for each claimed condition and a rationale must be provided for each conclusion offered. Then, for each separate and distinct disability identified on review of the evidence, the physician should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability was (a) caused or (b) aggravated (i.e., worsened beyond natural progression) by the Veteran's service-connected hepatitis C. If the physician determines that aggravation occurred he or she should attempt to quantify the degree of additional disability resulting from aggravation. The physician should set forth the complete rationale for the conclusions reached in a printed (typewritten) report. 4. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claims remaining on appeal in light of all pertinent evidence and legal authority. 6. If any benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental SOC (SSOC) that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND 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 Supp. 2012). _________________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs