Citation Nr: 1538486 Decision Date: 09/09/15 Archive Date: 09/18/15 DOCKET NO. 09-10 049 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for hepatitis C with hepatic cirrhosis. 2. Entitlement to service connection for liver cancer, to include as secondary to hepatitis C. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran served on active duty from November 1968 to August 1970. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office in St. Louis, Missouri (RO). The Veteran's representative contends in a June 2014 statement, that under a liberal interpretation of Clemons, cirrhosis of the liver should be considered in conjunction with the claim for service connection for hepatitis C. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (finding that a claim for benefits for one psychiatric disability also encompassed benefits based on other psychiatric diagnoses and should be considered by the Board to be within the scope of the filed claim). The Board has, accordingly, recharacterized the issue on appeal as service connection for hepatitis C with hepatic cirrhosis. The Board remanded the appeal in May 2012 and August 2014 for additional development to include a request for updated VA treatment records and for VA opinions to address claimed hepatitis C and liver cancer. The AOJ substantially complied with the Board's remand order, and the Board finds that it may proceed with a decision on the issue of service connection hepatitis C with hepatic cirrhosis at this time. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). The issue of entitlement to service connection for liver cancer is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). (CONTINUED ON NEXT PAGE) FINDINGS OF FACT 1. The Veteran has a current diagnosis of hepatitis C with hepatic cirrhosis secondary to hepatitis C. 2. Resolving reasonable doubt in favor of the Veteran, the Board finds that hepatitis C with hepatic cirrhosis was incurred in service. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for hepatitis C with hepatic cirrhosis are met. 38 U.S.C.A. §§ 1112, 1110, 1113, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015) REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes 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), 3.326(a) (2015). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim. Id; see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a May 2008 letter, the RO provided preadjudicatory notice to the Veteran which met VCAA notice requirements. Because this decision constitutes a full grant of the benefits sought on appeal with respect to the claim for service connection for hepatitis C with cirrhosis, no further discussion regarding VCAA notice or assistance duties is required. (CONTINUED ON NEXT PAGE) Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Hepatitis C is not a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the provisions of 38 C.F.R. § 3.303(b) do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). An injury or disease incurred during active service shall not be deemed to have been incurred in line of duty if such injury or disease was a result of the person's own willful misconduct, and this includes an HVC infection due to abuse of alcohol or drugs. See 38 U.S.C.A. § 105 (West 2014); 38 C.F.R. § 3.1(m) (2015). Several risk factors for hepatitis C have been recognized by VA. These include: transfusion of blood or blood products before 1992, organ transplant before 1992, hemodialysis, tattoos, body piercing, intravenous drug use (from shared instruments), high-risk sexual activity, intranasal cocaine (from shared instruments), accidental exposure to blood products as a health care worker, combat medic, or corpsman by percutaneous (through the skin) exposure or mucous membrane exposure, and other direct percutaneous exposure to blood such as by acupuncture with non-sterile needles or the sharing of toothbrushes or shaving razors. With regard to the risk factor of immunization with a jet air gun injector, VA has noted that despite the lack of any scientific evidence to document transmission of hepatitis C with air gun injectors, it is biologically possible. See M21-1, Adjudication Procedures Manual, III.iv.4.I.1.j. In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Service Connection Analysis The Veteran contends in various lay statements that hepatitis C is related to vaccinations administered by jet injectors in service The Veteran is competent to describe possible risk factors for contracting hepatitis C in service. The Board finds that the Veteran is credible in identifying possible exposure to hepatitis C due to vaccinations administered by jet injectors in service. While the Veteran did not initially identify possible exposure to hepatitis C via jet injectors in conjunction with his claim for service connection, private treatment records show that during hospitalization in May 2007, that the Veteran reported to his private treatment provider that he believed that hepatitis C was due to in-service immunization procedures. The Board finds that this statement, which was made solely for treatment purposes, tends to support the more recent contentions regarding the receipt of vaccinations via jet injectors in service. The Board finds that the Veteran has a current diagnosis of hepatitis C with secondary hepatic cirrhosis. VA treatment and private treatment records dated from 2003 to 2012 reflect a diagnosis of hepatic cirrhosis secondary to hepatitis C and alcoholic liver disease. The Veteran had a liver transplant in April 2008, but continues to carry a diagnosis of hepatitis C and cirrhosis. The Board finds that the evidence is at least in equipoise as to whether diagnosed hepatitis C was incurred in service. As discussed above, the Board finds that the Veteran has identified a hepatitis C risk factor of possible blood exposure through jet injectors in service. In this case, there is conflicting evidence with regard to whether the Veteran's hepatitis C is related to the credibly identified risk factor in service. In a February 2011 opinion, the Veteran's VA treating physician, an expert in hepatology, stated that the Veteran had no other risk factors for acquiring hepatitis C except with jet injectors during active service in the United States Navy from 1968 to 1970, and he opined that, more likely than not, this was how the Veteran acquired this disease. VA treatment records show that the VA physician who offered the February 2011 opinion, which included a rationale, was the Veteran's transplant doctor and he treated the Veteran for liver disease from at least 2003 to 2011 and was, thus, familiar with his treatment history. Conversely, an August 2012 VA examiner stated in September 2014 and October 2014 supplemental opinions that hepatitis C and liver disease were most likely due to a long-standing history of alcohol abuse, and not air gun injectors or an in-service sexual assault. Accordingly the Board finds that the evidence is at least in equipoise on the question of whether hepatitis C with secondary hepatic cirrhosis was incurred in service. Therefore, resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for hepatitis C and cirrhosis is warranted. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for hepatitis C with hepatic cirrhosis is granted. REMAND Pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4)(i) (2015). May 2012 and August 2014 Board remands, requested in pertinent part, that if liver cancer was present at some point during the appeal period, that the VA examiner should provide an opinion as to whether liver cancer is secondary to hepatitis C. To date, the record does not contain an opinion addressing whether claimed liver cancer is secondary to now service-connected hepatitis C and cirrhosis. A March 2008 private MRI shows that the Veteran had a dominant lesion in the right lobe of the liver which had features of a hepatocellular carcinoma without evidence of portable vein invasion. Given the Veteran's diagnosis of a liver mass with features of hepatocellular carcinoma in March 2008 just one month prior to filing his claim for service connection, his history of hepatocellular carcinoma noted in VA treatment records, and evidence of continued screening for hepatocellular carcinoma in October 2008 and May 2012, the Board finds that a medical opinion is necessary to address whether hepatocellular carcinoma, identified in March 2008, is etiologically related to service, and to address whether the Veteran has any current residuals of hepatocellular carcinoma. See Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013) (holding that when the record contains a recent diagnosis of disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency); see also McClain v. Nicholson, 21 Vet. App. 319 (2007). Accordingly, the case is REMANDED for the following action: 1. The AOJ should refer the case for a VA examination to address the etiology of claimed liver cancer. Given the complexity of the Veteran's medical history, the Board finds that the examination should be conducted by a physician with expertise in hepatology, oncology, or other relevant specialty. The evidence of record should be made available to the examiner for review. All indicated diagnostic testing should be conducted. The VA examiner should offer the following opinions: a). Does the Veteran have current liver cancer, to include any residuals of hepatocellular carcinoma. b). Is it at least as likely as not that a liver mass with features of hepatocellular carcinoma, identified in a March 2008 private MRI, is caused by service-connected hepatitis C or hepatic cirrhosis? c). Is it at least as likely as not a that that a liver mass with features of hepatocellular carcinoma, identified in a March 2008 private MRI, was aggravated (permanently worsened in severity beyond the normal progress of the disease) by service-connected hepatitis C or hepatic cirrhosis? If the opinion is that there is aggravation, to the extent that is possible, the examiner is requested to provide an opinion as to approximate baseline level of severity of the nonservice-connected condition before the onset of aggravation. "Aggravation" is defined for legal purposes as a worsening of the underlying condition versus a temporary flare-up of symptoms. A complete rationale for all opinions and conclusions should be provided with reference to the evidence of record. 2. After all development has been completed, the AOJ should review the case again based on the additional evidence. If the benefits sought are not granted, the AOJ should furnish the Veteran and representative with a Supplemental Statement of the Case, and should give the Veteran a reasonable opportunity to respond before returning the record to the Board for further review. The Veteran 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 2015). ______________________________________________ K. J. Alibrando Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs