Citation Nr: 1310367 Decision Date: 03/27/13 Archive Date: 04/09/13 DOCKET NO. 08-25 770 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for hepatitis B, to include jaundice as a manifestation thereof. 2. Entitlement to service connection for hepatitis C, to include jaundice as a manifestation thereof. ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran had active military service from November 1975 to November 1978. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision by the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York, which denied the benefits sought on appeal. The Veteran filed a Notice of Disagreement (NOD) in May 2007. The RO issued a Statement of the Case (SOC) in July 2008. In August 2008, the Veteran filed his Substantive Appeal. Thus, the Veteran perfected a timely appeal of these issues. In November 2010 and March 2012, the Board remanded the issues on appeal to the RO via the Appeals Management Center (AMC), in Washington, DC, for further development. The appeal has now been returned to the Board for appellate disposition. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. The evidence of record is in relative equipoise as to whether the Veteran's current hepatitis B was incurred during his active military service. 2. The evidence of record is in relative equipoise as to whether the Veteran's current hepatitis C was incurred during his active military service. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, service connection for hepatitis B, to include jaundice as a manifestation thereof, is established. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. Resolving all reasonable doubt in the Veteran's favor, service connection for hepatitis C, to include jaundice as a manifestation thereof, is established. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Here, the Board is granting the claims on appeal. Thus, there is no prejudice to the Veteran and no further discussion of the VCAA is required. II. Service Connection The Veteran seeks service connection for hepatitis B and hepatitis C, arguing that these disorders were incurred during his active military service. To establish direct service connection, the record must contain: (1) medical evidence of a current disorder; (2) medical evidence, or in certain circumstances, lay testimony, of in-service incurrence or aggravation of an injury or disease; and, (3) medical evidence of a nexus between the current disorder and the in-service disease or injury. In other words, entitlement to service connection for a particular disorder requires evidence of the existence of a current disorder and evidence that the disorder resulted from a disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1131. Service connection may also be granted for any disease diagnosed after the military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d). The Board notes that under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. Regarding the first element of service connection (i.e., a current diagnosis), in December 2010, the Veteran was afforded a VA examination to determine the nature and etiology of his hepatitis. Following a physical examination of the Veteran, a review of the claims file, and laboratory testing, the December 2010 VA examiner found that the Veteran did not have chronic hepatitis, that the hepatitis B surface antigen was negative, and that the viral load of hepatitis C was <43, which implied negative DNA for hepatitis C. The examiner notes that the Veteran was treated for hepatitis C by a private physician with an undetectable viral load. In contrast, during the course of the appeal, the January 2007 VA examination diagnosed the Veteran with hepatitis B and chronic hepatitis C, following a physical examination and a review of the claims file. Therefore, in considering the above evidence and in giving the Veteran the benefit of the doubt, the Board finds that VA must resolve this reasonable doubt in his favor and conclude that the Veteran has the necessary current hepatitis B and hepatitis C diagnoses. 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Regarding the second element of service connection (i.e., an in-service incurrence), the Veteran's DD-Form 214 reflects that his Military Occupational Specialty (MOS) included that of a medical specialist and clinical specialist, which are related to civilian occupations of a nurse and a medical assistant. The Veteran's service treatment reports (STRs) reflect that the Veteran was treated for and diagnosed with hepatitis in July 1976. Specifically, the hepatitis is noted in the in-service treatment record as viral hepatitis, hepatitis associated antigen (HAA) positive, serum hepatitis, and HbsAg positive (indicative of hepatitis B). At that time, in July 1976, the Veteran was hospitalized for his hepatitis. In another July 1976 STR, the Veteran, who was noted to work in Ward 38 as a ward attendant, complained of changes in his urine for the past several days. At that time, it was noted that the Veteran had been exposed numerous times to persons with a diagnosis of hepatitis, while he was working at the Ward. The Veteran reported exposure to two persons within the last several weeks. The Veteran also denied the use of recreational drugs, to include heroin. Another July 1976 STR reflects that he was admitted to the hospital in July 1976 with complaints of dark urine and it was noted that Ward 38 (the Ward in which the Veteran worked) was a renal ward with a propensity for patients with serum hepatitis. At that time, the Veteran did not recall any time in the past few months where he might have cut or stuck himself. An August 1976 in-service hospital discharge summary reports that the Veteran complained of dark urine upon admission and was initially admitted for jaundice. The Veteran denied a history of drug use or blood transfusions. The report states that the Veteran worked as a Ward Technologist in the Renal Service, which was found to be noteworthy by the in-service treatment provider, as there were four recently reported cases of HAA positive hepatitis on the Renal Dialysis Service. The Veteran was admitted for HAA positive hepatitis and was diagnosed with viral hepatitis with HAA positive. He was hospitalized from July 1976 to August 1976, a period of 35 days. In August 1976, it was found, based on additional testing, that the Veteran was HbsAg positive (indicative of hepatitis B) and HAA antigen negative. A June 1978 in-service neurology report reflects that the Veteran reported a past history of hepatitis, which the service treatment provider noted was from a needle scratch. In his October 1978 report of medical history upon separation from the military service, the Veteran checked that he had a history of jaundice or hepatitis and specified having a history of hepatitis in 1976. The separation examination does not reflect any clinical findings of abnormalities of the abdomen or viscera, gastrointestinal, or urinary systems. The Veteran's active military service ended in November 1978. The Board notes that the Veteran's STRs do not clearly document whether the Veteran was diagnosed with hepatitis B or hepatitis C or both during his active military service. Therefore, in considering the above evidence and in giving the Veteran the benefit of the doubt, the Board finds that VA must resolve this reasonable doubt in his favor and conclude that he has the necessary in-service treatment and diagnoses of hepatitis B and hepatitis C. 38 C.F.R. § 3.102; Alemany, 9 Vet. App. at 519. Post-service private and VA medical records from January 1980 to September 2009 reflect that the Veteran reported a positive history of hepatitis in October 1985 and had an initial diagnosis of hepatitis C in February 1996. He was subsequently treated for and diagnosed with hepatitis C. Additionally, in a private treatment record dated in October 1996, the Veteran told the physician that he was previously exposed to hepatitis B in 1977. These records also reflect that the Veteran had a history of intravenous drug abuse. In a January 2007 VA examination, the Veteran reported that he was stuck with a contaminated syringe in 1976 at Walter Reed Medical Center while working as a medic in the emergency room. He stated that his multiple tattoos were from around 1979 to 1980 and described a history of past intravenous/intranasal drug abuse from 1984 to 1987. The VA examiner noted that the Veteran had a claims file, but that found that the claims file did not contain any pertinent records. The examiner opined that it was not likely that the Veteran contracted hepatitis C and hepatitis B from his needle stick in 1976 while serving as a medic at Walter Reed Medical Center. The examiner found that it was more likely than not that the Veteran contracted hepatitis C and hepatitis B from his intravenous drug use during the period of 1984 to 1987. In this regard, the Board finds that the Veteran's STRs are relevant to the Veteran's claim, that the STRs were included in the claims file at the time of the January 2007 VA examination, and that the January 2007 VA examiner did not review or cite to the Veteran's STRs. In particular, the January 2007 VA examiner reported that the Veteran had a claims file, but that the claims file did not contain pertinent records. The examiner did not note any findings from the Veteran's STRs, and did not provide any rationale for his opinion. As stated above, the STRs do contain pertinent documents, and, as such, the Board, in its November 2010 remand, found the January 2007 VA examination to be inadequate for purposes of deciding the claims on the merits. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Accordingly, the Board remanded for an addendum VA medical nexus opinion to be obtained. However, the December 2010 VA examiner did not provide a medical nexus opinion, as he found that the Veteran did not have current diagnoses, as described above. The December 2010 VA examiner did point out two potential risk factors for the Veteran's current hepatitis B and hepatitis C - working in the emergency room during his active military service where the Veteran was exposed to blood and intravenous drug use sharing. However, the examiner did not provide a medical nexus opinion. Thus, to date, there is no competent medical nexus opinion of record. Nonetheless, in considering the in-service treatment and diagnoses for viral hepatitis, hepatitis associated antigen (HAA) positive, serum hepatitis, and HbsAg positive, the STRs demonstrating the Veteran worked in a renal ward which treated and admitted several patients with hepatitis with numerous exposures on the ward to persons with a diagnosis of hepatitis within weeks of his hospitalization, the STRs reflecting the Veteran denied the use of recreational drugs (to include heroin), the post-service evidence of a reported history of hepatitis in October 1985, and the current diagnoses of hepatitis B and hepatitis C, the Board finds that another medical opinion is not necessary in order to grant the claims on appeal - particularly, when considering the Veteran's competent and credible lay statements in support of the appeal. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1335-37 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence."). In this regard, the Board notes that the Veteran is already service-connected for Hepatitis A. The most recent laboratory findings at the December 2010 VA examination establish that the Veteran does not currently have hepatitis B or hepatitis C. However, previous laboratory findings have established current diagnoses of hepatitis B and hepatitis C. Therefore, the Board finds that it cannot differentiate the current and in-service symptomatology between the various types of hepatitis (A, B, and C). See Mittleider v. West, 11 Vet. App. 181 (1998) (holding that when claimant has both service-connected and non-service-connected disabilities, Board must attempt to discern the effects of each disability and, where such distinction is not possible, attribute such effects to the service-connected disability). Therefore, in considering the above evidence and in giving the Veteran the benefit of the doubt, the Board finds that VA must resolve this reasonable doubt in his favor and grant service connection for hepatitis B and hepatitis C, as the symptomatology between the types of hepatitis (A, B, and C) cannot be differentiated either currently or during the Veteran's active military service. 38 C.F.R. § 3.102; Alemany, 9 Vet. App. at 519. Accordingly, based on the foregoing, the Board finds that the evidence supports the Veteran's claims of entitlement to service connection for hepatitis B and hepatitis C. Thus, the claims are granted. 38 U.S.C.A. § 5107(b); see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (CONTINUED ON THE NEXT PAGE) ORDER The claim for service connection for hepatitis B, to include jaundice as a manifestation thereof, is granted, subject to the statutory and regulatory provisions governing the payment of monetary benefits. The claim for service connection for hepatitis C, to include jaundice as a manifestation thereof, is granted, subject to the statutory and regulatory provisions governing the payment of monetary benefits. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs