Citation Nr: 1320063 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 10-21 034 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for hepatitis. 2. Entitlement to service connection for acquired psychiatric disabilities, to include depression, to include as secondary to service-connected hepatitis. 3. Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: Cummins B. Jones II, Attorney at Law, Veterans Consulting Group Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Tahirih S. Samadani, Counsel INTRODUCTION The Veteran served on active duty from September 1975 to June 1977. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which denied service connection for hepatitis, depression and TDIU. In February 2013, the Board obtained an expert medical opinion referable to the issue of entitlement to service connection for hepatitis, the content of which was against the Veteran's claim. In accordance with established procedures, the Board provided the Veteran and his representative a copy of that opinion and advised him that he had 60 days to respond with additional evidence and/or argument. In response, the Veteran submitted additional evidence in the form of a private medical opinion, the content of which was for the Veteran's claim. The Veteran and his attorney indicated that he did not wish to waive RO consideration of the new evidence that he submitted and instead requested that the Board return the case to the RO for a new rating decision to be issued and if possible to have the attorney and medical expert appear in person to address any questions that may arise. As will be fully discussed below, the Board is granting the Veteran's claim for service connection for hepatitis, and finds that remand is required for the remaining issues. Therefore, the Board does not find that the Veteran has been prejudiced by the Board adjudicating the hepatitis claim at this time. The Veteran seeks service connection for depression. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. In this case, additional psychiatric diagnoses are of record; therefore, the issue has been recharacterized above as service connection for acquired psychiatric disabilities, to include depression. The issues of entitlement to service connection for depression and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office. FINDING OF FACT The evidence of record is in equipoise as to whether the Veteran's current Hepatitis B and C disabilities are related to his active duty military service. CONCLUSION OF LAW Resolving the benefit of the doubt in the Veteran's favor, Hepatitis B and C were incurred in active duty military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has given consideration to the provisions of the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. The Board need not discuss in detail the sufficiency of the VCAA notice letters located in the Veteran's claims folder in light of the fact that the Board is granting the Veteran's Hepatitis claim and remanding the remaining issues. Any potential error on the part of VA in complying with the provisions of the VCAA has essentially been rendered moot by the Board's full grant of the benefits sought on appeal. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2012). Accordingly, the Board will proceed to a decision. Relevant law and regulations In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2012). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis In essence, the Veteran contends that he has current Hepatitis B and C diagnoses that were incurred during his military service. Specifically, the Veteran contends that his current hepatitis diagnoses are related to the hepatitis diagnosed during his military service. As noted above, in order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus or relationship between the two. See Shedden v. Principi, 381 F.3d at 1167. The record shows that the Veteran has current diagnoses of Hepatitis B and Hepatitis C. See February 2013, pages 2-3. The Board acknowledges that Dr. M., the private examiner only diagnosed the Veteran with Hepatitis C. Despite this, the August 2009 examination report and the February 2013 Veterans Health Administration (VHA) opinion noted diagnoses for both Hepatitis B and Hepatitis C. Accordingly, element (1), current disability, is satisfied for both Hepatitis B and Hepatitis C. With respect to element (2), in-service disease or injury, the Veteran's service treatment records show a diagnosis for viral hepatitis, "probably Type A" in November 1976. The examiner noted that no Hepatitis-associated antigen (HAA) testing was available. The Veteran sought treatment at that time because he noticed yellow in his eyes, malaise, nausea, occasional vomiting and darkening of his urine. The treatment record notes that he had a known contact with hepatitis two month prior. The Veteran denied drug or heavy alcohol use. An April 1977 Report of Medical History notes that the Veteran had jaundice or hepatitis that was treated. His service treatment records also show that he was admitted to the Alcohol and Drug Abuse Prevention and Control Program due to opium abuse. Rehabilitation was deemed a failure. Despite this, the Veteran was discharged under honorable conditions. The evidence shows that the Veteran was diagnosed with some type of hepatitis during service. To this extent, element (2) is satisfied as well. The question becomes whether element (3), nexus or relationship, is satisfied. The Board notes that there are somewhat conflicting medical opinions of record addressing the etiology of the Veteran's Hepatitis B and C diagnoses. A review of the VA treatment records shows that the Veteran has a history of drug and alcohol abuse. VA treatment records also shows that he served time in prison in November 1999 and possibly at other times. These are risk factors for hepatitis. The Veteran was afforded a VA examination in February 2009. He was diagnosed with Hepatitis B. The examiner opined that high risk sexual activity was most likely the cause of this hepatitis and that it likely took place in the military. Notably, the examiner incorrectly stated that Hepatitis B was the same hepatitis listed in the service treatment records. The Veteran was afforded another VA examination in August 2009. He was diagnosed with Hepatitis B (chronic) and Hepatitis C (chronic). The examiner opined that high-risk sexual practices were most likely the cause of his hepatitis. The examiner also found that the Veteran's chronic Hepatitis B and C resulted from his acute infection which occurred during service. He was likely co-infected with Hepatitis B and C. The examiner also seems to provide a somewhat contradictory statement. The examiner opined that Hepatitis C was less likely to cause acute infection than Hepatitis A or Hepatitis B. He explained that Hepatitis C only caused jaundice in 25 percent of patients and Hepatitis B only caused jaundice in 30 percent of patients. Therefore, the Veteran's jaundice was most likely due to acute Hepatitis A infection as diagnosed during service, but it could have been caused by acute Hepatitis B or C. The examiner stated that there was no way to definitively prove which of these caused his jaundice in 1976, but it was less likely than not caused by Hepatitis C. The Veteran submitted an opinion by a physician of osteopathic medicine in March 2010. The physician reviewed the Veteran's claims file and service treatment records but did not examine the Veteran. The physician diagnosed the Veteran with Hepatitis C. The physician found that the service treatment record noted "likely Hepatitis A". The physician explained that had the Veteran been diagnosed with Hepatitis A, it would have been confirmed; however, if the Veteran presented with symptoms but testing was negative for A or B, the terms "likely," "probably," and/or "unconfirmed" hepatitis A would have been used. The examiner also opined that the Veteran could have had experienced jaundice with Hepatitis C. The physician noted that it is difficult to render a diagnosis of Hepatitis C during the acute phase but that a distinct and major characteristic of Hepatitis C is its tendency to cause chronic liver disease. The physician concluded that the Veteran developed Hepatitis C during service which is presently active to date. In February 2013, the Board obtained an expert medical opinion from the Veterans Health Administration (VHA). After reviewing the claims file, the physician concluded that the Veteran had a current diagnosis for Hepatitis B and C. She opined that that it was likely that he acquired Hepatitis B sometime during his lifetime but not necessarily while in the military. The physician concluded that the Veteran acquired viral Hepatitis, highly likely Hepatitis A, during his active military service. The physician noted that it would be far reaching for her to concluded that the Veteran acquired Hepatitis C during his military service due to the lack of evidence such as lab testing, ultrasound imaging, live biopsy or referral to a Gastroenterologist, Hepatologist, or liver Clinic between 1977 and 1997, and or 1999 (when the Veteran's wife was notified). The physician concluded that Veteran lived a high risk lifestyle during his military service and post-military service, and never presented with risk factors such as history of blood transfusion, hemodialysis, needle sticks, or IV drug use, as typically seen in association with a person with Hepatitis C virus. Therefore, the physician concluded that Hepatitis B and Hepatitis C could have been acquired anytime during his lifetime, not solely in the Army. The physician appears to not rule out the possibility that the Veteran could have acquired Hepatitis B and Hepatitis C during his military service. In May 2013, the Veteran and his attorney submitted another medical opinion in support of the Veteran's claim. The physician concluded that the Veteran's Hepatitis C was acquired while serving in the military service. She based her opinion on the following facts: (1) the Veteran was in good physical health upon entering service; (2) the Veteran contracted hepatitis of unknown genotype during service; (3) the testing and technology for detecting and diagnosing Hepatitis A were in existence and the Veteran would have been diagnosed with Hepatitis A; (4) instead, the Veteran was diagnosed with "probably A"; (5) the testing and technology for detecting and diagnosing the genotype (HCV) Hepatitis was not available until the late 1980's; (6) Hepatitis A is "acute"; (7) Hepatitis C is "chronic"; (8) the Veteran acquired an unspecified form of Hepatitis while on active duty and this unspecified form of Hepatitis (which later was diagnosed as Hepatitis C) was chronic in nature. Based on a review of the record as a whole, to include these competing medical opinions, the Board finds that the evidence of record for and against the Veteran's claim is at the very least in relative equipoise. When the evidence for and against the claim is in equipoise, by law, the Board must resolve all reasonable doubt in favor of the appellant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012). Accordingly, the benefit-of-the-doubt rule is applicable in this case, and a relationship between the Veteran's current Hepatitis B and C diagnoses with his active military service is established. Element (3) is therefore satisfied, and the benefit sought on appeal is allowed. ORDER Entitlement to service connection for Hepatitis B and Hepatitis C is granted. REMAND VA records The Veteran reported during the June 2011 hearing that he was currently receiving treatment from the VA at the Cookeville Outpatient Clinic in Tennessee. Updated VA treatment records are not associated with the claims file. VA has a duty to obtain all pertinent VA treatment records. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Before the Veteran's claim can be adjudicated, all pertinent VA treatment records must be obtained. Examination VA must provide an examination when there is (A) competent evidence of a current disability that (B) may be associated with service, but (C) there is insufficient medical evidence to make a decision on the claim. 38 U.S.C.A. § 5103A(d). The Federal Circuit has addressed the appropriate standard to be applied in determining whether an examination is warranted under this statute. In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service. Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service would not suffice to meet the standard of subsection (B), as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-1279. The Veteran testified that he has been treated with depression at the VA. As indicated above, these records must be obtained and associated with the claims file. The Board has no reason to doubt the credibility of the Veteran that he, in fact, has been treated at the VA for depression. The Veteran claims that his depression is secondary to his hepatitis diagnosis. As the evidence shows competent evidence of a current disability that may be associated with a service-connected disability, and because there is insufficient medical evidence to make a decision on the claim, the Board finds that a VA examination is necessary before the issue can be adjudicated. TDIU As service-connection has been granted for hepatitis and the Veteran is claiming TDIU based on hepatitis and depression, the issue of TDIU needs to remanded back to the RO so that the RO can assign a disability evaluation for his hepatitis and for further development regarding his service connection claim for depression. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) [two or more issues are inextricably intertwined if one claim could have significant impact on the other]. Accordingly, the case is REMANDED for the following action: 1. Obtain all relevant VA treatment records and associate them with the claims file. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file. 2. After the above development has been completed to the extent possible, schedule the Veteran for a VA psychiatric examination by a VA psychiatrist or psychologist to ascertain the nature and etiology of any diagnosed psychiatric condition(s), taking into account both medical evidence and lay testimony from the Veteran. The claims file (to include any pertinent evidence in any associated electronic claims folders) must be made available to and reviewed by the examiner, and any indicated studies (to include psychological testing, as appropriate) should be performed. The examiner is requested to offer the following opinions: a. Is it at least as likely as not that the Veteran has an acquired psychiatric disorder, to include depression, that is related to the Veteran's military service? b. Is it at least as likely as not that any current psychiatric disorder is due to his service-connected hepatitis. Please provide a complete explanation for the opinion? c. Is it at least as likely as not that any current psychiatric disorder is aggravated (i.e., permanently worsened beyond the natural progression) by his service-connected hepatitis? If aggravation is found, the examiner should address the following medical issues to the extent possible: (1) the baseline manifestations of the Veteran's psychiatric disorder found prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected hepatitis. Please provide a complete explanation for the opinion. d. Is it at least as likely as not that the Veteran's psychiatric disability renders the Veteran unable to obtain and/or maintain gainful employment, given his level of education and work history? An explanation for any opinion expressed is required. The examiner is reminded that the term "at least as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 3. After the Veteran's claim for service connection for a psychiatric disorder has been completed, schedule the Veteran for an appropriate VA examination to determine whether a TDIU is warranted. The claims folder, to include a copy of this Remand, must be made available to and reviewed by the examiner prior to completion of the examination report. Any indicated studies should be performed. The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran's service-connected disabilities render him unable to obtain and/or maintain gainful employment, given his level of education and work history. The Veteran's age may not be considered, and whether the Veteran was retirement eligible at the time he stopped working is also not relevant in determining whether his current service-connected disabilities are of such severity that it renders him unable to obtain or maintain gainful employment. If the Veteran's service-connected disabilities do not render him unemployable, the examiner should report the type or types of employment in which the Veteran would be capable of engaging with his current service-connected disabilities, given his current skill set and educational background. Please provide a complete explanation for the opinion. 4. The Veteran is hereby notified that it is his responsibility to report for any and all scheduled examinations and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for a scheduled examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 5. After the foregoing has been completed, readjudicate the Veteran's claims for entitlement to service connection for psychiatric disorders and the Veteran's claim for TDIU. If the benefits sought on appeal remains denied, the Veteran and his attorney should be issued an appropriate SSOC, and afforded an opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the 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 Supp. 2012). ______________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs