Citation Nr: 0813573 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 07-06 960 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to service connection for cirrhosis. 2. Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L.J. Bakke, Counsel INTRODUCTION The veteran served on active duty from February 1968 to February 1970. This appeal arises before the Board of Veterans' Appeals (Board) from a rating decision rendered in March 2006 by the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada, in which service connection for cirrhosis and hepatitis C was denied. In January 2008, subsequent to the December 2007 supplemental statement of the case, the veteran submitted medical evidence from his private treating physician. While this evidence has not been considered by the RO in the first instance, the veteran waived his right to such consideration. The veteran testified before the undersigned Veterans Law Judge in February 2008. A transcript of the hearing is associated with the claims file. FINDINGS OF FACT 1. In February 2008, the veteran withdrew his appeal of the claim for service connection for cirrhosis. 2. Hepatitis C is the etiological result of the veteran's service-connected duodenal (peptic) ulcer disease. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal by the veteran concerning the claim for service connection for cirrhosis have been met. 38 U.S.C.A. § 7105(b)(2) (West 2002 & Supp. 2007); 38 C.F.R. § 20.204 (2007). 2. The criteria for service connection for hepatitis C have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5107(b) (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawal In February 2007, the veteran submitted a substantive appeal indicating that he wished to appeal all issues listed in the January 2007 statement of the case. This perfected his appeal as to his claim for service connection for cirrhosis. In February 2008, in hearing testimony proffered before the Board promulgated a decision on this issue, the veteran indicated that he wished to withdraw his appeal as to this issue. A substantive appeal may be withdrawn by the veteran at any time before the Board promulgates a decision. 38 C.F.R. § 20.204(b). As the veteran withdrew his appeal as to the issue of service connection for service connection for cirrhosis, there remains no allegation of error of fact or law for appellate consideration. The Board therefore has no jurisdiction to review this issue. II. Service Connection In light of the favorable action taken, discussion of whether VA has met its duties of notification and assistance is not required, and deciding the appeal at this time is not prejudicial to the veteran. Service connection may be established for disability resulting from injury or disease incurred in service. 38 U.S.C.A. § 1110. Service connection connotes many factors, but basically, it means that the facts, as shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service. A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease in service. See Pond v. West, 12 Vet. App. 341 (1999); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be established on a secondary basis if the claimed disability is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107. A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See also, 38 C.F.R. § 3.102. When a veteran seeks benefits and the evidence is in relative equipoise, the veteran 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 seeks entitlement to service connection for hepatitis C and argues that the condition is the result of blood transfusions he received during surgery for his ulcer condition in 1976. The veteran is service connected for duodenal (peptic) ulcer disease, status post Billroth I gastrectomy. Private medical records reveal that the veteran underwent exploratory laparotomy, vagotomy, antrectomy, and Billroth I anastomosis in September 1976 for a perforated duodenal ulcer. Complications included prolonged ileus lasting 8-9 days. He was placed on triple therapy antibiotics for his perforation and the wound was left open down to the fascia because of possibility of infection. He was discharged after 12 days. In January 2008, the veteran's private treating physician provided an opinion that the veteran's hepatitis C was most likely contracted as the result of blood transfusion required during the treatment for his peptic ulcer disease. The physician noted that the veteran had been a patient in his practice for many years. The operative reports from the 1976 surgery do not specifically reflect whether the veteran was or was not given transfusions during his surgery. However, it is noted that these records do not contain nursing notes, anesthesia records, or records of medications administered during the veteran's surgery and treatment-including records of intravenously administered substances. It is noted that the veteran was not service-connected for his gastric condition until 2006 and, up to that point, the majority of the veteran's treatment for his gastric condition was received from private health care providers. In fact, the January 2008 opinion from the veteran's private physician specifically notes that the veteran had been a patient for "many years." The medical evidence of record contains no opinions against a finding that the veteran's hepatitis C is the result of treatment required for his now service-connected gastric condition. Accordingly, the benefit of the doubt goes to the veteran and service connection for hepatitis C is warranted. See 38 C.F.R. § 3.102. ORDER The appeal of the claim of entitlement to service connection for cirrhosis is dismissed. Service connection for hepatitis C is granted. ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs