Citation Nr: 1513269	
Decision Date: 03/27/15    Archive Date: 04/03/15

DOCKET NO.  05-18 771	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUES

1.  Entitlement to service connection for hepatitis C.

2.  Entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran




ATTORNEY FOR THE BOARD

B. Elwood, Counsel


INTRODUCTION

The Veteran served on active duty from January 1979 to March 1982.

These matters initially came before the Board of Veterans' Appeals (Board) from an April 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California.  In that decision, the RO denied entitlement to service connection for hepatitis C and sleep problems.

The Veteran testified before the Board at a May 2011 hearing at the RO (Travel Board hearing).  A transcript of the hearing has been associated with the claims file.

In September 2011 and July 2013, the Board remanded these matters for further development.

In addition to the paper claims file, there are Veteran's Benefits Management System (VBMS) and Virtual VA paperless claims files associated with the Veteran's claims.  The documents in these files have been reviewed and considered as part of this appeal.

The issues of entitlement to an increased rating for posttraumatic stress disorder (PTSD) with depression and entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities have been raised by the record by way of a "Veteran's Application for Increased Compensation Based on Unemployability" form (VA Form 21-8940) and an "Application for Disability Compensation and Related Compensation Benefits" form (VA Form 21-526EZ) which were received by VA in September 2014.    These issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2014).

The issue of entitlement to service connection for sleep apnea is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ.


FINDING OF FACT

The Veteran has hepatitis C secondary to his service-connected PTSD with depression and associated substance abuse.


CONCLUSION OF LAW

The criteria for service connection for hepatitis C are met.  38 U.S.C.A. §§ 1111, 1131, 1137, 5107(b) (West 2014); 38 C.F.R. §§ 3.303, 3.304(b), 3.310 (2014).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014).

As the Board is granting the claim of service connection for hepatitis C, the claim is substantiated, and there are no further VCAA duties at this time.  Wensch v. Principi, 15 Vet App 362, 367-68 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance).

Analysis

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1131; 38 C.F.R. § 3.303.  

Service connection is provided for a disability which is proximately due to, the result of, or aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310.  VA has amended 38 C.F.R. § 3.310 to reflect that it will not concede aggravation unless certain additional conditions are met.  38 C.F.R. § 3.310(b).  As service connection for hepatitis C is not being granted on the basis of aggravation by a service-connected disability, it is not necessary to determine which version of 38 C.F.R. § 3.310 is applicable in this case.

Direct service connection may be granted only when a disability was not the result of a veteran's abuse of alcohol or drugs.  See 38 U.S.C.A. § 105 (West 2014); 38 C.F.R. § 3.301 (2014).  Although a substance abuse disability cannot be service-connected on the basis of its incurrence or aggravation in service, the law does not preclude a veteran from receiving compensation for a substance abuse disability acquired as secondary to, or as a symptom of, a service-connected disability.  Specifically, claimants are only entitled to secondary service connection if they can "adequately establish that their alcohol or drug abuse disability is secondary to or is caused by their primary service-connected disorder."  Such a benefit will only result "where there is clear medical evidence establishing that the alcohol or drug abuse disability is indeed caused by a veteran's primary service-connected disability, and where the alcohol or drug abuse disability is not due to willful wrongdoing."  Allen v. Principi, 237 F.3d 1368, 1381 (Fed. Cir. 2001).

In relevant part, 38 U.S.C.A. § 1154(a) (West 2014) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).
The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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."  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence").

"Once evidence is determined to be competent, the Board must determine whether such evidence is also credible."  See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")).

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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

In this case, an October 2011 VA examination report includes a diagnosis of hepatitis C.  Thus, a current disability has been demonstrated.

Initially, the Board acknowledges that the Veteran has provided reports of substance abuse prior to service.  Nevertheless, a veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated.  38 U.S.C.A. §§ 1111, 1137; 38 C.F.R. § 3.304(b).

Although the Veteran is certainly competent to report a history of substance abuse prior to service, a veteran's report of history, even when related by a medical professional, without an independent basis in the record, is insufficient to rebut the presumption of soundness.  Miller v. West, 11 Vet. App. 345 (1998).  There is no other evidence of any pre-existing substance abuse disorder and the Veteran's January 1979 entrance examination was normal other than for "identifying body marks, scars, tattoos" and vision problems.  The evidence is not clear and unmistakable that any substance abuse disorder pre-existed service and was not aggravated in service.  Hence, the Veteran is presumed sound at service entrance and such presumption has not been rebutted.  38 U.S.C.A. § 1111.

VA treatment records, including an October 2003 VA gastrointestinal evaluation note and a July 2004 VA psychiatric progress note, reveal that the Veteran has a history of intravenous drug use in the years after service.  The probative medical opinions of record indicate that his substance abuse is the result of his service-connected psychiatric disability and that his hepatitis C is the result of the substance abuse.

In December 2011, the nurse practitioner who had conducted an October 2011 VA examination opined that the Veteran's hepatitis C was not related to an air gun inoculation, but was "rather caused by intravenous drug use."  (This opinion was a correction to the one provided in the October 2011 VA examination report which erroneously indicated that the hepatitis C was likely ("at least as likely as not"/"50 percent or greater probability") incurred in or caused by service).  The examiner explained in the October 2011 VA examination report that the Veteran had reported during a July 2003 VA psychiatric evaluation that he had begun using cocaine, heroin, codeine, Demerol, valium, amphetamines, marijuana, hashish, barbiturates, LSD, PCP, and mescaline in 1979.  He was also a heavy drinker.  A review of medical literature indicated that intravenous drug users and people exposed to blood and body fluids have a high incidence of contracting hepatitis C.  Thus, the Veteran's intravenous drug use contributed to his contracting hepatitis C, as opposed to receiving an air gun inoculation.

A December 2011 VA examination report includes an opinion that it was not likely ("less than 50 percent likely") that the Veteran's drug and alcohol use were secondary to his service-connected PTSD.  Rather, it was likely ("more likely than not") that the drug and alcohol abuse were secondary to trauma and physical injury from a 1983 motor vehicle accident.  The psychiatrist who provided this opinion explained that the Veteran had reported that he was involved in a motor vehicle accident in 1983 and that treatment following the accident revealed that hepatitis C was present.  Alcohol abuse and intravenous drug use began after treatment for injuries sustained in the 1983 accident.

The examiner who conducted an August 2013 VA examination noted that the Veteran's claims file was not available for review and opined that it was likely ("as likely as not") that his alcohol abuse and intravenous drug abuse were manifestations of his service-connected PTSD.  The examiner reasoned that the Veteran's substance abuse was aggravated by sexual trauma in service.  He reported increased drug and alcohol use as a way to cope with the symptoms of his PTSD.  Although he had endorsed substance use prior to service, his symptoms had worsened as a result of his service-connected military sexual trauma.  Thus, it was likely that the Veteran's substance use was a manifestation of his service-connected PTSD.

In September 2013, the examiner who had conducted the August 2013 VA examination reviewed the Veteran's claims file and indicated that the previous medical opinions remained unchanged.

In November 2013, a VA physician reviewed the Veteran's claims file and opined that the preponderance of the medical evidence supported a conclusion that his intravenous drug use and a transfusion received after service were the likely causes of his hepatitis C.  The examiner reasoned, in relevant part, that this opinion was based upon a review of the Veteran's records and a review of medical literature which revealed, in pertinent part, that humans are the reservoir for the hepatitis C virus and that it is transmitted primarily via blood.  Injection drug use accounts for almost all new hepatitis C infections.  Transmission via blood transfusions rarely occurs because donated blood containing antibody to the hepatitis C virus is discarded.  Transmission via needle-stick injury occurs, but the risk is lower than for the hepatitis B virus.  Sexual transmission and transmission from mother to child occur, but are inefficient modes.

Moreover, approximately 1 percent of blood donors in the United States have antibody to the hepatitis C virus, whereas people who share needles when taking intravenous drugs are very commonly infected.  Commercially prepared immune globulin preparations are generally very safe, but several instances of the transmission of the hepatitis C virus have occurred.  This is the only example of an infectious disease transmitted by immune globulins.  The Veteran had a transfusion prior to his hepatitis C blood test and he used intravenous drugs and these are the top two causes of hepatitis C.  Both of these risk factors occurred after service.

The December 2011 opinion of the VA psychiatrist who conducted the December 2011 VA examination is of limited probative value because it is based on an inaccurate history.  Specifically, the examiner reasoned that the Veteran's alcohol abuse and intravenous drug use began after treatment for injuries sustained in his 1983 motor vehicle accident; however, the Veteran has reported a history of substance abuse (including intravenous drug use) prior to the 1983 accident and his service treatment records include records of treatment for alcoholism.  Hence, the opinion contained in the December 2011 VA examination report is insufficient and of limited probative value.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed); Boggs v. West, 11 Vet. App. 334, 345 (1998); Kightly v. Brown, 6 Vet. App. 200, 205-06 (1994); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993).

The December 2011 opinion of the nurse practitioner who conducted the October 2011 VA examination and the August and November 2013 opinions are accompanied by specific rationales that are not inconsistent with the evidence of record.  Thus, these opinions are adequate and entitled to substantial probative weight.  See Nieves-Rodriguez, 22 Vet. App. at 304.

In light of the above evidence and resolving reasonable doubt in favor of the Veteran, the Board finds that his current hepatitis C is, at least in part, the result of his intravenous drug use and that his history of substance abuse (including intravenous drug use) is secondary to his service-connected psychiatric disability. As such, the Veteran's substance abuse, to include his intravenous drug use, does not constitute willful misconduct.  Hence, service connection for hepatitis C as secondary to the service-connected PTSD with depression is warranted and service connection is granted.  38 U.S.C.A. §§ 1131, 5107(b); 38 C.F.R. §§ 3.303, 3.310; see also Allen v. Principi, 237 F.3d 1368, 1381 (Fed. Cir. 2001).


ORDER

Entitlement to service connection for hepatitis C is granted.


REMAND

In its July 2013 remand, the Board instructed the AOJ to obtain opinions as to whether the Veteran's claimed sleep apnea was related to service or was caused or aggravated by his service-connected psychiatric and/or low back disability.  The examiner was instructed to discuss the evidence of record demonstrating marked sleep difficulties and excessive sleepiness in service, the Veteran's body mass index (BMI) at the time he was diagnosed as having sleep apnea, and a January 2006 VA nutrition inpatient note which stated that the Veteran was a large framed male with a strong, muscular build who did not appear moderately obese as 137 percent IBW would suggest.

In July 2013, a VA physician reviewed the Veteran's claims file and opined that his sleep apnea was not likely ("less likely than not"/"less than 50 percent probability") incurred in or caused by service.  The physician reasoned that the single most common risk factor for obstructive sleep apnea is an obese body habitus, which results in an anatomical crowding of one's airway due to excess soft tissue from a large neck circumference.  An obese body habitus is not related to service.  During an October 2011 VA examination, the Veteran was obese with a large neck circumference.  He was borderline morbidly obese with a BMI of 30 (normal BMI is less than 25).  Obesity is first and foremost a direct result of dietary habits.  Millions of people across the world do not exercise regularly, yet they are not morbidly obese because they do not eat very much.  Though chronic musculoskeletal conditions may inhibit certain physical activity, they have no bearing on one's ability to make certain nutritional decisions.  Although physical activity can certainly improve one's cardiovascular fitness and help expend excess calories accumulated by food intake, proper diet is by far the most significant factor in controlling one's weight.

The July 2013 opinion is insufficient because although the rationale that accompanies the opinion is suggestive of a conclusion that the Veteran's sleep apnea was not related to his service-connected psychiatric and low back disabilities, the opinion provider did not provide any such specific opinion as requested by the Board.  Moreover, the opinion provider did not at all acknowledge or discuss the evidence of marked sleep difficulties and excessive sleepiness in service, the Veteran's BMI at the time he was diagnosed as having sleep apnea, or the information contained in the January 2006 VA nutrition inpatient note.

Hence, a remand is necessary to obtain a new opinion as to the etiology of the Veteran's sleep apnea.

VA regulations provide that where an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes.  38 C.F.R. § 4.2 (2014); see 38 C.F.R. § 19.9 (2014).  Where the Board makes a decision based on an examination report which does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination."  Goss v. Brown, 9 Vet. App. 109, 114 (1996); Stanton v. Brown, 5 Vet. App. 563, 569.

Moreover, the VCAA requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d).  The VCAA's duty to assist includes a duty to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody.  38 C.F.R. § 3.159(c)(4).

Evidence associated with the claims file, including a January 2004 VA domiciliary care coordinator note and a February 2009 VA social work note, reveal that the Veteran has applied for Social Security Administration (SSA) supplemental security income (SSI) and/or disability benefits.  In cases where there has been a determination with regard to SSA benefits, the records concerning that decision must be obtained, if relevant.  Tetro v. Gober, 14 Vet. App. 100, 108-09 (2000); Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992); cf. Golz v. Shinseki, 590 F.3d 1317, 1321 (2010) (there is no duty to get SSA records when there is no evidence that they are relevant).  The medical records related to the SSA's disability/SSI determination(s) have not yet been associated with the claims file and may be relevant.

In addition, the Veteran's representative reported in a September 2014 statement that the Veteran continued to receive VA treatment at the VA Long Beach Healthcare System.  The most recent treatment records from this facility in the claims file and among the Veteran's paperless records are dated in August 2012.  Thus, it appears that there are additional VA treatment records that have not yet been obtained.  VA has a duty to obtain any additional relevant records.  38 U.S.C.A. § 5103A(b),(c); Bell v. Derwinski, 2 Vet. App. 611, 612-13 (1992).

Also, the Veteran alluded to relevant treatment from "Dr. Hamm" during the May 2011 hearing in that he reported that "Dr. Hamm" had reportedly indicated that a relationship existed between the Veteran's sleep apnea and potential asbestos exposure in service.  When VA becomes aware of private treatment records it will specifically notify the Veteran of the records and of the need to provide a release for VA to obtain the records.  If the Veteran does not provide the release, VA must ask the Veteran to obtain the records.  38 C.F.R. § 3.159(e)(2).  These steps have not yet been taken with regard to any relevant treatment records from "Dr. Hamm."  Thus, a remand is also necessary to attempt to obtain any additional relevant private treatment records.

Accordingly, the case is REMANDED for the following action:

1.  Contact the SSA and obtain a copy of that agency's decision(s) concerning the Veteran's claim(s) for SSI and/or disability benefits, including any medical records relied upon to make the decision(s).

All efforts to obtain these records must be documented in the claims file.  Such efforts shall continue until the records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile.

2.  Obtain and associate with the claims file all records of the Veteran's treatment for a sleep disability from the VA Long Beach Healthcare System dated from August 2012 through the present; and all such relevant records from any other sufficiently identified VA facility.

All efforts to obtain these records must be documented in the claims file.  Such efforts shall continue until the records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile.

3.  Ask the Veteran to complete an authorization for VA to obtain all records of his treatment for a sleep disability from "Dr. Hamm" (see pages 10 and 11 of the May 2011 Board hearing transcript).  All efforts to obtain these records must be documented in the claims file.

If the Veteran fails to furnish any necessary releases for private treatment records, he shall be asked to obtain the records and submit them to VA.  

If any putative records are unavailable, the Veteran shall be notified of the identity of the records that are unavailable, the efforts VA has undertaken to obtain such records, and any additional action that may be taken concerning his claim.  All such notification must be documented in the claims file.

4.  After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records and any records from the SSA, schedule the Veteran for a VA examination with an examiner other than the physician who conducted the October 2011 VA sleep apnea examination to determine the etiology of his current sleep apnea.  All indicated tests and studies shall be conducted.

The claims file, including any relevant records contained in VBMS and the Virtual VA system, along with any records obtained pursuant to this remand, must be sent to the examiner for review.

With respect to any sleep apnea diagnosed since August 2003, the examiner shall answer all of the following questions:

(a)  Is it at least as likely as not (50 percent or greater probability) that the current sleep apnea had its onset in service, is related to potential asbestos exposure in service, is related to the Veteran's documented sleep problems in service, or is otherwise the result of a disease or injury in service?

(b)  Is it at least as likely as not (50 percent or greater probability) that the current sleep apnea was caused (in whole or in part) by the Veteran's service-connected PTSD with depression and/or lumbar spine degenerative changes (to include a lack of physical activity due to these disabilities)?

(c)  Is it at least as likely as not (50 percent or greater probability) that the current sleep apnea was aggravated (made chronically worse) by the Veteran's service-connected PTSD with depression and/or lumbar spine degenerative changes (to include a lack of physical activity due to these disabilities)?

In formulating the above opinions, the examiner shall specifically acknowledge and comment on any sleep apnea diagnosed since August 2003, the Veteran's reports of asbestos exposure in service, the evidence demonstrating marked sleep difficulties and excessive sleepiness in service, all instances of treatment for sleep problems in the Veteran's service treatment records (including the July and September 1979 records of treatment for possible narcolepsy), his BMI at the time he was diagnosed as having sleep apnea, and the January 2006 VA nutrition inpatient note which stated that he was a large framed male with a strong, muscular build who did not appear moderately obese as 137 percent IBW would suggest.
The examiner must provide a rationale for each opinion given.

The examiner is advised that the Veteran is competent to report his symptoms and history, and such statements by the Veteran must be specifically acknowledged and considered in formulating any opinions.  If the examiner rejects the Veteran's reports regarding symptoms, the examiner must provide a reason for doing so.  (The absence of evidence of treatment for sleep apnea in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion).

If the examiner determines that he or she cannot provide an opinion without resorting to speculation, the examiner shall explain the inability to provide an opinion, identifying precisely what facts could not be determined.  In particular, he or she shall comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion.  (The AOJ shall ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.)

5.  After conducting any additional indicated development, readjudicate the issue on appeal.  If the benefit sought on appeal remains denied, the AOJ shall issue a supplemental statement of the case.  After the Veteran is given an opportunity to respond, the case shall be returned to the Board.

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 2014).



______________________________________________
JAMES L. MARCH
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs