Citation Nr: 1553509 Decision Date: 12/23/15 Archive Date: 12/30/15 DOCKET NO. 13-18 712A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for hepatitis C. 3. Entitlement to service connection for tachycardia. 4. Entitlement to service connection for chronic renal disease. 5. Entitlement to a total rating based upon individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: Kenneth LaVan, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Martz Ames, Counsel INTRODUCTION The Veteran had active service in the Marine Corps from June 1975 to July 1975 and active duty for training (ACDUTRA) in the Massachusetts Army National Guard (ARNG) from May 1991 to November 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2009 and August 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The September 2009 rating decision denied the Veteran's petition to reopen a previously denied claim for service connection for hypertension. The August 2010 rating decision continued the denial of the petition to reopen and denied service connection for tachycardia, hepatitis C, chronic renal disease, and entitlement to a TDIU. The Veteran testified at a hearing in November 2015 before the undersigned. A copy of the transcript is of record. After the hearing, the Veteran, through his attorney, submitted additional evidence. The Board has considered these records prior to Agency of Jurisdiction (AOJ) review. See Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7105 to provide for an automatic waiver of initial AOJ review of evidence submitted to the AOJ or to the Board at the time of or subsequent to the submission of a substantive appeal filed on or after February 2, 2013, unless the claimant or claimant's representative requests in writing that the AOJ initially review such evidence). The Board notes that the issue of entitlement to service connection for hypertension was previously categorized as a petition to reopen a previously denied claim. The Veteran's petition to reopen a claim for service connection for hypertension was denied in a June 2003 rating decision. He filed a timely Notice of Disagreement (NOD) in February 2004 and a Statement of the Case was issued in May 2004. The Veteran did not file a VA Form 9 or Substantive Appeal, and the AOJ did not lead him to believe that the issue remained on appeal. See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). The June 2003 rating decision is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104, 3.160(d), 20.200, 20.302, 20.1103 (2015). The Veteran submitted additional service treatment records (STRs) with his February 2004 NOD. They were from July 1996 and showed a blood pressure reading of 132/88, which qualifies as prehypertensive. See Dorland's Illustrated Medical Dictionary 1510 (32nd ed. 2012). Therefore, they are relevant to the claim. At any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring the submission of new and material evidence. Service records related to a claimed in-service event, injury, or disease are relevant service department records. 38 C.F.R. § 3.156(c)(1)(i) (2015). New and material evidence is not needed to reopen his previously denied claim and it will be reviewed on a de novo basis. Id. Therefore, the Board has recharacterized the issue on appeal as entitlement to service connection for hypertension. The issue of entitlement to service connection for liver disease, to include as secondary to hepatitis C was raised by a February 2010 statement, and the issues of entitlement to service connection for residuals of a stroke and liver disease were raised at his November 2015 hearing. These issues have not been adjudicated by the 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) (2015). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issues of entitlement to service connection for hypertension/heart murmur, tachycardia, and chronic renal disease, and to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDING OF FACT The Veteran's currently diagnosed hepatitis C is related to service. CONCLUSION OF LAW The Veteran's hepatitis C was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2015). If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for certain diseases. 38 C.F.R. §§ 3.303(a),(b), 3.309(a) (2015); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also 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) (2015). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2015); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record. The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2014). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102 (2015). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran contends his hepatitis C was contracted during his period of ACDUTRA from May 1991 through November 1991. The term "active military, naval, or air service" includes any period of ACDUTRA which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty. 38 U.S.C.A. § 101(24) (West 2014); 38 C.F.R. § 3.6(a), (d) (2015). The Veteran's DD Form 214 verifies that his period of ACDTURA was from May 23, 1991 to November 8, 1991. He received multiple vaccinations on May 30, 1991, after his period of ACDUTRA commenced. The Veteran has repeatedly stated that these vaccinations were provided via airgun, and he submitted a statement from a soldier who was vaccinated at the same time who also stated that vaccinations were provided via airgun. The Board finds that the Veteran and his fellow service member are competent to observe that a vaccination was accomplished via airgun as opposed to a conventional needle and there is nothing in the record to show otherwise. Therefore, their statements are credible. See Barr, 21 Vet. App. 303. The Veteran underwent a VA examination in July 2010. The examiner concluded that the Veteran's alcohol abuse and pre-service tattoo were the most likely risk factors for hepatitis C and concluded that the "[v]eteran did serve during the time period that airgun injectors were utilized in the military. Veteran has multiple risk factors for acquiring hepatitis C other than the airgun injectors utilized by the military." In contrast to the negative opinion provided in July 2010, there are multiple positive opinions of record. In an October 2009 VA treatment record, a physician found that, "...most likely his source of hep[atitis] C was airgun vaccination in the service." This opinion was reiterated in a September 2011 VA treatment record. In April 2013, a VA physician reiterated that the Veteran's hepatitis C was more likely than not due to airgun vaccinations received while he was in the military. The physician noted that this opinion was based on the fact that the Veteran did not have a history of intravenous (IV) drug use or blood transfusions, and that he served during a period of time where airguns were used. In November 2013, a VA health care provider stated that the Veteran's alcohol abuse had nothing to do with hepatitis C. He stated that, "[a] person does not get HCV [hepatitis C virus] from alcohol abuse, which was stated by someone in the record according to the patient. He has one tattoo which he states was obtained at a legitimate tattoo parlor. We have no other history of risk factors other than the airgun vaccinations he received in the service. It is therefore possible that the HCV infection was transmitted from the airgun though we have no way of absolutely confirming this at this time." The use of the speculative word "possible" renders the opinion inadequate for the purposes of establishing service connection. See Warren v. Brown, 6 Vet. App. 4, 6 (1993). However, this opinion provides evidence in support of the conclusion that alcohol use is not a risk factor for contracting hepatitis C. In November 2015, the Veteran's attorney submitted a medical opinion from A. C., a registered nurse. She reviewed the Veteran's claims file and concluded that his hepatitis C was caused by airgun vaccinations administered during service. A. C. stated that alcohol abuse was not a risk factor for hepatitis C. She noted that the record contained a reference to the Veteran's use of IV drugs. She also noted that in a December 2009 letter, he vehemently denied this allegation. A. C. stated that the other evidence of record does not show that the Veteran used IV drugs. She explained that the most likely cause of the Veteran's hepatitis C was the use of a non-sterile airgun during service. The Board finds that the positive opinions of record are more probative than the July 2010 negative opinion. The Board finds in favor of service connection for hepatitis C because the evidence shows that this condition was incurred during the Veteran's period of ACDUTRA from May 1991 to November 1991. 38 U.S.C.A. § 5107(b). Service connection is granted. Given the favorable determination of this decision, any further development or notification action under the Veterans Claims Assistance Act of 2000 (VCAA) would not avail the Veteran. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014). ORDER Service connection for hepatitis C is granted, subject to the laws and regulations governing the payment of monetary benefits. REMAND Remand is necessary in this case for the following reasons. With regard to tachycardia, the record shows that the Veteran served in the Massachusetts ARNG from November 1991 through May 2000. The Veteran specifically asserts that he was placed on profile for tachycardia in June 1996 while serving in the ARNG. There are STRs from 1996 showing that he was indeed placed on profile for sinus tachycardia and was instructed not to perform field duty or AFPT. He underwent an electrocardiogram that was abnormal. However, the AOJ has not verified the Veteran's periods of ACDUTRA and/or INACDUTRA other than the period from May 1991 to November 1991, and therefore it is not possible to determine his duty status in June 1996. On remand, the AOJ must attempt to verify the Veteran's periods of ACDUTRA and/or INACDUTRA for June 1996. Additionally, the Veteran was treated for chest pain and shortness of breath while on ACDUTRA in August 1991. He also contends that tachycardia is the result of hypertension. A September 2006 private medical record from Dr. K. B. stated that there was more likely than not a relationship between hypertension and tachycardia. A VA examination is warranted. McLendon v. Nicholson, 20 Vet. App. 79, 86 (2006). With regard to hypertension, the Veteran contends that his hypertension began in service. The Board notes that the Veteran's blood pressure upon entry into service was 130/60. In June 1996 it was 132/88. Prehypertension is defined as a systolic pressure of 120 to 139 or a diastolic pressure of 80 to 89. See Dorland's Illustrated Medical Dictionary 1510 (32nd ed. 2012). Because the Veteran had prehypertensive blood pressure readings in service, a VA examination is warranted. McLendon, 20 Vet. App. at 86. Additionally, verification of the Veteran's service in June 1996 is also relevant to this claim. With regard to chronic kidney disease, in the Veteran's June 1996 report of medical history, he reported that he had a kidney stone in 1994 and was treated for it at Brockton Hospital, where he underwent a lithotripsy. The AOJ obtained records from Brockton Hospital from January 2000 onward, but has not attempted to obtain records of his 1994 kidney stone treatment. On remand, the AOJ must attempt to obtain these records. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2015). Additionally, because the Veteran was a member of the ARNG in 1994, the AOJ must attempt to verify the Veteran's periods of ACDUTRA and/or INACDTURA for 1994. A VA examination is also warranted. Id. With regard to TDIU, as the rating assigned by the RO for hepatitis C and the outcomes of the claims being remanded will have a substantial effect on the merits of his claim for a TDIU, the claim for a TDIU is inextricably intertwined and remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); see also Tyrues v. Shinseki, 23 Vet. App. 166, 178 (2009). Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Request the complete dates of the Veteran's ACDUTRA and INACDUTRA in the Massachusetts National Guard by day and month from the appropriate agency or agencies. Obtaining these dates for 1994 and 1996 are of particular importance. 2. The AOJ must request the Veteran's outstanding treatment records from his National Guard service from the appropriate agency or agencies. Make as many requests as are necessary to obtain relevant records, and only end efforts to do so if the records sought do not exist or further efforts to obtain those records would be futile. All negative responses must be documented. If no records are available, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e) (2015). 3. Provide the Veteran with a release form for medical records generated by Brockton Hospital in 1994, and if he returns the requested information, attempt to obtain the records. If no records are available, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e) (2015). 4. Schedule the Veteran for an examination with an appropriate clinician for his tachycardia. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. a. The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. b. Although an independent review of the claims file is required, the Board calls the examiner's attention to the following: i. An August 1991 STR noting treatment for chest pain and shortness of breath. ii. June 1996 STRs noting sinus tachycardia with "no explanation," a profile for tachycardia, and an abnormal EKG. c. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's tachycardia began during active service, a period of ACDUTRA, a period of INACDUTRA, or is related to an incident of service. d. The examiner must provide all findings, along with a complete rationale for his or her opinion(s), in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion, as well as specifically explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided. 5. Schedule the Veteran for an examination with an appropriate clinician for his hypertension. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. a. The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. b. Although an independent review of the claims file is required, the Board calls the examiner's attention to the following: i. An April 1975 STR noting a blood pressure reading of 130/60. ii. An August 1991 STR noting treatment for chest pain and shortness of breath. iii. A June 1996 STR noting a blood pressure reading of 132/88. c. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hypertension began during active service, a period of ACDUTRA, or a period of INACDUTRA, or to an incident of service. d. IF AND ONLY IF the examiner determines that tachycardia is related to a period of service, the examiner must: i. Determine whether it is at least as likely as not that hypertension was proximately due to or the result of tachycardia. ii. Determine whether it is at least as likely as not that hypertension was aggravated beyond its natural progression by his tachycardia. e. The examiner must provide all findings, along with a complete rationale for his or her opinion(s), in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion, as well as specifically explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided. 6. Schedule the Veteran for an examination with an appropriate clinician for his chronic kidney disease. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. a. The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. b. Although an independent review of the claims file is required, the Board calls the examiner's attention to the following: i. A September 2010 unsigned opinion stating that the Veteran's "current medical condition" is secondary to hypertensive nephrosclerosis and is most likely related to tachycardia and hypertension. ii. An April 2015 VA treatment record attributing the Veteran's renal disease to hypertension. c. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's chronic kidney disease began during active service, a period of ACDUTRA, a period of INACDUTRA, or is related to an incident of service. d. IF AND ONLY IF the examiner determines that chronic kidney disease is related to a period of service, the examiner must: i. Determine whether it is at least as likely as not that chronic kidney disease was proximately due to or the result of hypertension or tachycardia. ii. Determine whether it is at least as likely as not that chronic kidney disease was aggravated beyond its natural progression by his hypertension or tachycardia. e. The examiner must provide all findings, along with a complete rationale for his or her opinion(s), in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion, as well as specifically explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided. 7. The AOJ must review the claims file and ensure that the foregoing development actions have been completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 8. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal, including the Veteran's TDIU claim. If the benefits sought on appeal remain denied, in whole or in part, the Veteran and his attorney must be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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 2014). ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs