Citation Nr: 1535972 Decision Date: 08/21/15 Archive Date: 08/31/15 DOCKET NO. 11-29 143 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for hepatitis C. 2. Entitlement to service connection for obstructive sleep apnea. REPRESENTATION Appellant represented by: Jan Dils, Attorney-at-Law WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S.M. Kreitlow INTRODUCTION The Veteran had active military service from August 1979 to August 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, in which the RO denied reopening a previously denied claim for service connection for hepatitis C and denied an initial claim for service connection for obstructive sleep apnea. The Veteran appeared and testified at a Board video-conference hearing held before the undersigned Veterans Law Judge in September 2012. A copy of the transcript of this hearing has been associated with the claims file. A review of the transcript demonstrates that the Veterans Law Judge complied with the requirements set forth in Bryant v. Shinseki, 23 Vet. App. 488, 491-93 (2010). Thereafter, the Board issued a decision in March 2014 in which it reopened the previously denied claim for service connection for hepatitis C and remanded the merits of that claim along with the claim for service connection for obstructive sleep apnea for additional development. Substantial compliance with a remand order, not strict compliance, is required. See Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet.App. 141, 147 (1999). As discussed below in more detail, the Board finds that the prior remand has been substantially complied with as it relates to the claim for service connection for hepatitis C. The Board may, therefore, proceed forward with adjudicating that claim. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). As for the claim for service connection for obstructive sleep apnea, the Board finds that remand is again necessary for additional development. That issue is, therefore, addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The probative and persuasive medical evidence of record does not demonstrate that the Veteran currently has hepatitis C. CONCLUSION OF LAW Service connection for hepatitis C is not warranted. 38 U.S.C.A. §§ 1131, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Notice and Assistance Requirements VA has a duty to provide notice of the information and evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). A standard letter sent to the Veteran in July 2010 satisfied the duty to notify provisions. The Board notes that, although the claim for service connection for hepatitis C was originally one to reopen, it is now currently being addressed on the merits as the Board previously found in its March 2014 decision that new and material evidence had been received. Thus, whether the July 2010 letter satisfied the requirements in Kent v. Nicholson, 20 Vet. App. 1 (2006), is moot. Furthermore, the Board finds that the letter sufficiently advised the Veteran of the requirements for establishing a service connection claim and thus she was provided adequate notice. With respect to VA's duty to assist, all efforts have been made to obtain relevant, identified and available evidence with the exceptions listed hereafter. VA has notified the Veteran of any evidence that could not be obtained. 38 U.S.C.A. § 5103A(b)(1). The Board notes that the Veteran's service treatment records are not associated with her claims file. The record indicates that her service treatment records were initially requested in August 2002; however, the wrong records were received by the RO. Subsequent requests for her service treatment records failed to result in either the National Personnel Records Center or any other agency finding them. At the September 2012 hearing, the Veteran and her attorney discussed with the Veterans Law Judge that the service treatment records were missing demonstrating their knowledge that these records have not been obtained. Furthermore, the Veteran notified VA in an October 2008 statement that her medical records were burned up in a house fire indicating that she does not have any copies of her service treatment records. Thus, the Board finds that, at this time, further efforts to obtain those records would be futile. Furthermore, although not all the development for additional medical records requested in the March 2014 remand has been completed, the Board finds that additional efforts in that regard would be moot as the record fails to establish that the Veteran currently has hepatitis C. In the prior remand, the Board requested that the AOJ seek to obtain inpatient records from the William Beaumont Army Medical Center at Fort Bliss, Texas, which the Veteran had identified as being related to the present claim for service connection for hepatitis C. The Board finds, however, that these records are not relevant at the present time since it is determined in more detail below that the Veteran does not have the claimed disorder for which she seeks service connection and her claim is denied on that basis. Thus evidence demonstrating that the Veteran received a blood transfusion as in service or was treated for non-A, non-B hepatitis as she claims is not relevant at this time because there is no current diagnosis of hepatitis C upon which service connection may be established. Additionally, in the prior remand, the Board requested that VA treatment records since March 2009 be associated with the claims file. Although the AOJ associated VA treatment records from the VA Medical Centers in Durham and Salisbury, North Carolina, from May 2005 through April 2015, it is clear these records failed to include a hepatitis C laboratory work up that was conducted on the Veteran in March 2014 as the January 2015 VA examination report sets forth the reports related to that work up. Since the VA examination report clearly incorporates the reports in full and the VA examiner's medical diagnosis is based upon those test results, the Board finds that the AOJ's failure to associate these records with the claims file is not substantially prejudicial to the Veteran. Thus, the Board finds that substantial compliance with the prior remand has been accomplished and that there is no prejudice to the Veteran by proceeding to a final decision on this claim. The Board finds, therefore, that VA has sufficiently complied with its duty to assist in developing documentary evidence relating to the Veteran's claim. In addition, the Veteran was afforded VA examination in January 2015. The report of this examination reflects that the examiner reviewed the Veteran's past medical history, recorded her current complaints, conducted appropriate physical examination, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The Board, therefore, concludes that this examination report is adequate for purposes of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2; see also Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran and her representative have not contended otherwise. Thus, the Board finds that VA has satisfied its duties to inform and assist the Veteran at every stage of this case. Additional efforts to assist or notify her would serve no useful purpose. Therefore, she will not be prejudiced as a result of the Board proceeding to the merits of her claim. II. Analysis Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed.Cir.2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Veteran claims that she has hepatitis C due to a blood transfusion she received while on active duty in 1983. She contends that she was hospitalized in or around May 1983 at the William Beaumont Army Medical Center at Fort Bliss, Texas, during which she received a blood transfusion. She testified at the September 2012 Board hearing that she had gotten really ill with a fever and vomiting and her husband took her to the hospital where they were told she had lost a lot of blood so needed a blood transfusion. She related that she was given two pints of blood. After that, in 1984 (subsequent to her discharge from service), she became pregnant and, during her initial visit with her doctor about this, the doctor noticed she looked jaundiced. She was hospitalized again at William Beaumont Army Medical Center. She stated she was told she had non-A, non-B hepatitis. In support of her claim, she submitted a statement from her ex-husband that relates that the Veteran was hospitalized in April 1983 at William Beaumont Army Medical Center because she had gotten really ill - "her eyes had turned yellow, her nails had turned yellow, her urine had turned dark brown and her stool had white (sic)." He further related she was given a blood transfusion in the month of April because the doctor said she had lost a lot of blood and he was asked permission to give the Veteran a blood transfusion. He related that a month later the Veteran started itching, breaking out and getting sick to her stomach, and that was when they readmitted her back into the hospital. He stated that the hospital staff informed him that she had non-A, non-B hepatitis. The earliest post-service medical treatment records available are from 1988. They show that, in October 1992, the Veteran began seeing her private physician for complaints of nausea and abdominal discomfort, which was initially thought to be due to gastritis or an ulcer. A treatment note dated November 13, 1992, indicates that the Veteran was positive for hepatitis C antibody and notes a history of non-A, non-B hepatitis in the past. Further work-up revealed she had gallstones and it was thought her symptoms were related to that. She was hospitalized on November 16, 1992 for symptomatic gallstones. She underwent a cholecystectomy and liver biopsy. Pathology results showed granulomatous disease. However, the final diagnosis was sarcoidosis, not hepatitis C, although the records noted her reported history of having hepatitis C with a positive serology. VA treatment records show the Veteran was seen for an initial visit in primary care in March 2005 and an assessment of hepatitis C diagnosed in 1983 per patient was given. A hepatitis C antibody test conducted at that time was positive. A February 2006 consultation with Infectious Disease resulted in an assessment of hepatitis C although it does not appear that further work up to confirm that diagnosis was undertaken at that time. Also in support of her claim, the Veteran submitted a private physician's medical opinion in July 2010 in which it appears he diagnosed the Veteran to have hepatitis C. He also stated that she contracted this in the immediate postpartum period in 1984 after receiving two units of blood. He noted that she was stationed in El Paso, Texas, and was called by the blood bank after being discharged from the hospital and was told that the blood was suspicious. She subsequently contracted hepatitis C. He stated that, at the present time, she has aching, nausea, vomiting and occasional diarrhea as a result of her hepatitis. She also listed in her medical history fatigue, weight loss and increased liver function tests. He indicated that he saw the Veteran three months before and her history revealed no drug abuse, no tattoos or promiscuous sex practices; therefore, there is no question that she got her hepatitis C from the blood transfusion while in service in August of 1983. In conclusion, he opined that it is more likely than not her current disability related to hepatitis C was a direct result of her military service. In contrast, there is medical evidence of record indicating that the Veteran does not, in fact, currently have hepatitis C. A private treatment records from June 1999 shows that, although she reported a history of hepatitis C, a hepatic function panel was essentially within normal limits. In 2003, her private treating physician conducted a hepatitis C work up on the Veteran. A May 5, 2003 treatment note indicates that an initial hepatitis C panel was not positive, a follow up PCR for hepatitis C was indeterminate, and a diagnosis of hepatitis C was questionable. A laboratory report from May 13, 2003, indicates that "HEP C RNA, PCR, QUANT" was less than 2.3. A handwritten note on that report states "tell patient okay, no hep C." In a May 23, 2003 treatment note, her physician wrote "In my opinion, she probably does not have an exposure to hepatitis C. Labs: a LT and liver tests were normal. Previous hepatitis C by RIBA was indeterminate, but the PCR test was negative." His assessment was hepatitis C, indeterminate test. A July 3, 2003 treatment note shows that a hepatitis C quantitative PCR was negative and a liver panel was unremarkable. The assessment was "Hepatitis C, negative by PCR. I doubt she has got true hepatitis C exposure." Finally, in a September 11, 2003 treatment note, her physician's assessment was "Hepatitis C, negative by CCR though. I doubt she has true hepatitis C." A September 2005 VA report of a liver ultrasound merely noted fatty liver changes; otherwise, the study was normal. Also a November 2006 VA CT thorax scan with contrast noted that the visualized portion of the abdomen revealed only fatty infiltration of the liver. A VA Nursing Note from March 2014 indicates the Veteran came in requesting work up for a history of hepatitis C. The Board notes that the reports relating to this work up are not part of the available VA treatment records; however, they are incorporated into the report of a January 2015 VA examination. In January 2015, the Veteran underwent a VA examination for hepatitis C. The history related indicates "the Veteran stated that, in 1984, she believes she was exposed to Hep C. She was never treated and tests were done 3/2014 that show negative for hep C. Liver functions are normal." In rendering a diagnosis, the examiner stated that the Veteran does not currently have signs or symptoms attributable to chronic or infectious liver diseases. In rendering this statement, she relied upon the laboratory tests conducted in March 2014 and fully incorporated the reports of those tests within the examination record. A March 25, 2014 report shows hepatitis C genotyping resulted in "HCV RNA NOT DETECTED." A March 19, 2014, report showed that hepatitis C antibody was negative. Finally a March 22, 2014 report showed that liver functions were within normal limits. After considering all the evidence, the Board finds that, although the Veteran may have received a blood transfusion in service and had an initial episode of jaundice that she was told was due to non-A, non-B hepatitis (which has not been confirmed), the weight of the medical evidence is against finding that she currently has hepatitis C. The Board acknowledges that there are diagnoses of hepatitis C in the record, e.g., in the July 2010 private medical opinion and the February 2007 VA Infectious Diseases consultation report. It is unclear, however, whether these diagnoses were based upon a complete medical work up rather than merely the Veteran's reported history. Significantly, whenever medical work up has been done (e.g., in 2003 and 2014), a diagnosis of hepatitis C has not been substantiated. Thus, the Board finds the most probative and persuasive evidence as to whether the Veteran currently has hepatitis C is the 2003 and 2014 treatment records showing that detailed work up for hepatitis C was negative. Furthermore, the Board acknowledges that there is evidence that the Veteran is hepatitis C antibody positive. This finding, however, is simply an indication that the Veteran has been exposed to the hepatitis C virus, not that she in fact has hepatitis C. Having a positive hepatitis C antibody laboratory test is like having elevated serum (blood) cholesterol or hypercholesterolemia, which is not a disability for which VA compensation benefits are payable. See Schedule for Rating Disabilities; Endocrine System Disabilities, 61 Fed. Reg. 20,440, 20,445 (May 7, 1996) (Diagnoses of hyperlipidemia, elevated triglycerides, and elevated cholesterol are actually laboratory results and are not, in and of themselves, disabilities). It is also pertinent to note that the term "disability," as used for VA purposes, refers to a condition resulting in an impairment of earning capacity. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In this case, there is no indication that the Veteran's having a positive laboratory finding of hepatitis C antibody is manifested by any such impairment. As the positive hepatitis C antibody is merely a laboratory test result and there is no medical evidence suggesting that there is any disability resulting from such finding, the positive hepatitis C antibody is not a disability within the meaning of the law granting compensation benefits. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303; Allen, supra. Furthermore, insofar as the Veteran has related that she has symptoms related to hepatitis C, the Board notes that, as a lay person, she is not competent to establish a medical diagnosis or show a medical etiology because such matters require medical expertise. See 38 C.F.R. § 3.159(a)(1) (Competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements or opinions). It appears just as likely as not that such symptoms as nausea, vomiting and diarrhea could be related to her sarcoidosis as those symptoms were present at the time of her diagnosis in November 1992. Furthermore, insofar as the private physician who provided the July 2010 medical opinion associates symptoms of aching, nausea, vomiting and occasional diarrhea to hepatitis, the Board finds that his medical opinion overall is of questionable probative value as there are many inconsistencies between the history he relates and that submitted by the Veteran directly to VA in support of her claim. For example, he relates that she was in an immediate postpartum period in 1983 at the time of the blood transfusion; however, the Veteran testified at the Board hearing that she became pregnant in 1984 after the blood transfusion was received in 1983. In addition, the private physician related that Veteran was called by the blood bank after being discharged from the hospital and was told that the blood was suspicious. In contrast, the Veteran has related in support of her claim that she was actually diagnosed to have non-A, non-B hepatitis after she became jaundiced. There is no report from either the Veteran or her ex-husband that she received a call from the blood bank about her receiving suspicious blood. Furthermore, the symptoms noted by this private physician appear to be self-reported by the Veteran. Although in the disclaimer attached with the medical opinion the private physician stated that the evaluation was based on the medical examination and review of records that were provided, it is unclear what records he may have had for review, if any, especially considering none of the medical evidence submitted by the Veteran to VA in support of her claim demonstrate complaints of any symptoms related to hepatitis C that were not accounted for by another diagnosis. Thus, the Board finds that the private medical opinion does not appear to be based on an accurate factual premise, and, therefore, it is of little probative value. Kowalski v. Nicholson, 19 Vet.App. 171, 179 (2005), citing Reonal v. Brown, 5 Vet. App. 458, 461 (1993) and Swann v. Brown, 5 Vet.App. 229 (1993) (stating that the Board is not bound to accept medical opinions that are based upon an inaccurate factual background). See also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (It is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes probative value to a medical opinion.); Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). In conclusion, as a diagnosis of hepatitis C has not been medically confirmed and the positive questionable hepatitis C antibody finding is merely a laboratory result without evidence it has resulted in a disability, the Board finds that service connection for hepatitis C must be denied. The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. Service connection is, therefore, denied. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for hepatitis C is denied. REMAND The Board finds that remand of the Veteran's claim for service connection for obstructive sleep apnea is again warranted to comply with VA's duty to assist in developing the claim so that there is a complete record, as far as possible, upon which the Board can make a decision. Initially the Board notes that VA medical records from December 2004 through April 2015 have been associated with the Veteran's claims file; however, it is clear that these are not all of her treatment records as there are no records regarding the initial diagnosis and treatment of obstructive sleep apnea except for a November 2006 pulmonary consultation note demonstrating the Veteran was assessed with a sleep-related history highly predictive of significant sleep apnea and recommending a sleep consultation. At the September 2012 Board hearing, the Veteran testified that she was diagnosed with obstructive sleep apnea by VA and was equipped with a CPAP machine. Her attorney stated at the hearing that there was an August 2007 treatment note that mentioned a sleep study. In addition, in her report, the examiner who conducted a January 2015 VA examination stated that a sleep study had been performed in November 2006. Yet none of these records are associated with the Veteran's claims file. Thus, on remand, all records relating to the Veteran's diagnosis of obstructive sleep apnea in 2006 and subsequent treatment thereof should be associated with the claims file. Furthermore, the Board finds that the medical opinion provided by the VA examiner who conducted the January 2015 examination is not adequate for rating purposes. The examiner opined that the Veteran's sleep apnea is less likely as not etiologically related to her active military service. Her reasoning for that opinion was that the Veteran did not have a sleep study in service and that is the only way to diagnose sleep apnea; she had no symptoms in service; and she was diagnosed with sleep apnea in 2006 and with obesity around the same time and the most common cause of obstructive sleep apnea is obesity, which is associated with collapse of the soft tissue of the mouth and throat during sleep, causing blockage. The examiner concluded that, since the Veteran had no diagnosis of obstructive sleep apnea in service and not for 23 years after service with her records showing her as obese, the most likely cause of her obstructive sleep apnea is weight gain after service. The Board notes that, in rendering this opinion, it does not appear that the examiner considered all evidence of record. In listing the available evidence in her report, the examiner indicated that the service treatment records were not available for review, which the Board notes is correct. She also indicated that she reviewed Charlotte VA Medical Center records from 2004 to 2014; however, the VA treatment records in the claims file are from the Durham, Asheville and Salisbury VA Medical Centers. As for private treatment records, she wrote "None," even though there are substantial private treatment records from as early as 1988 (just five years after the Veteran's discharge from service) in the claims file. Although the Board acknowledges these private treatment records are not treatment of obstructive sleep apnea, they do demonstrate that the Veteran has had issues with being overweight or obese from at least since 1992. Thus, the examiner's statement that the Veteran had just been diagnosed with obesity around the same time as her obstructive sleep apnea diagnosis in 2006 appears to be disputed. Furthermore, the examiner's finding that the Veteran had no symptoms in service does not appear to take into account the lay statement from the Veteran's ex-husband submitted in October 2012. In this statement, he related that, in 1982, he noticed that at night the Veteran would snore real loud, and he would turn her on her side. He also related noticing that she quit breathing for a second and he would shake her. He related an incident in which one night the Veteran came home from work and fell asleep holding their two-year old daughter. He stated that, ever since then, she has been falling asleep a little bit when holding a conversation. This statement by the ex-husband, combined with the Veteran's statements, could be sufficient to show that the Veteran had symptoms of obstructive sleep apnea in service; however, it is up to the examiner to determine whether such evidence is sufficient to establish a medical diagnosis, which she has not done. Thus, the Board finds that remand is warranted to return the Veteran's claims file to the VA examiner and request that she provide an adequate medical opinion after review of the complete record, to include both VA and private treatment records, as well as lay statements relating to the Veteran's claim for service connection for obstructive sleep apnea. Accordingly, the case is REMANDED for the following action: 1. Associate with the Veteran's claims file all VA treatment records relating to the diagnosis of and treatment for obstructive sleep apnea from 2006 to the present. The Board notes that the claims file contains records from the VA Medical Centers located in Durham, Asheville, and Salisbury, North Carolina, so records of all these facilities should be searched. 2. Thereafter, return the Veteran's claims file to the VA examiner who conducted the January 2015 VA examination for obstructive sleep apnea. If the prior examiner is no longer available, then the Veteran's case should be forwarded to another VA examiner with the requisite expertise to render the requested opinion. A new examination should not be scheduled unless deemed necessary by the person rendering the requested medical opinion. The examiner should review the Veteran's entire claims file, including all medical records, private and VA, as well as all relevant lay statements. The examiner should be asked to reconsider her previous medical opinion in light of the private medical treatment records showing the Veteran's long history of being overweight/obese, as well as the October 2012 lay statement from her ex-husband relating his experiences with the Veteran while she was still on active duty. Thereafter, the examiner should render an opinion as to whether it is at least as likely as not (i.e., at least a 50 percent probability) that the Veteran's obstructive sleep apnea diagnosed by sleep study in November 2006 had its onset during the Veteran's active service or is otherwise related to any injury, disease or event incurred during her active service. The examiner should specifically consider whether the lay statement provided by the Veteran's ex-husband in October 2012, taken along with the Veteran's own statements, is sufficient evidence to establish the presence of symptoms of obstructive sleep apnea during service. The examiner should give a detailed explanation for the reasons for the opinion(s) provided. The medical reasons for accepting or rejecting the Veteran's theories of entitlement should be set forth in detail. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should 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. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The agency of original jurisdiction should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 3. After ensuring that all necessary documentary development has been accomplished and the VA medical opinion obtained is adequate, the Veteran's claim should be readjudicated. If such action does not resolve the claim, a Supplemental Statement of the Case should be issued to the Veteran and her representative. An appropriate period of time should be allowed for response. Thereafter, this claim should be returned to this Board for further appellate review, if in order. 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 that are remanded by the Board 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). ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs