Citation Nr: 1320453 Decision Date: 06/25/13 Archive Date: 07/05/13 DOCKET NO. 06-13 748 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut THE ISSUES 1. Entitlement to service connection for claimed hepatitis C. 2. Entitlement to service connection for claimed sinusitis. 3. Entitlement to service connection for claimed rhinitis. 4. Entitlement to service connection for claimed bilateral otitis, to include as secondary to sinusitis or rhinitis. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Donohue, Counsel INTRODUCTION The Veteran served on active duty from May 1974 to September 2004. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision by the RO in Seattle, Washington. The Veteran subsequently relocated and jurisdiction of his claims folder has been transferred to the RO in Hartford, Connecticut. In July 2009, the Veteran testified at a hearing held before an Acting Veterans Law Judge at the RO. A transcript of the hearing has not been associated with the record. In October 2009 correspondence, the Veteran was notified that the Board was unable to produce a written transcript of a July 2009 hearing. He was given the opportunity to request another hearing. In a November 2009 response, the Veteran elected to present testimony before a Veterans Law Judge at a second hearing held at the RO. See 38 C.F.R. § 20.717 (2012). In April 2010, the Veteran testified at another hearing held before a Veterans Law Judge at the RO. A transcript of the hearing has been associated with the record. The Acting Veterans Law Judge and the Veterans Law Judge have now retired. In a May 2012 letter, the Veteran was given the opportunity to request another Board hearing before another Veterans Law Judge. VA has not received a response from the Veteran. In January 2010 and August 2012, the Board remanded the Veteran's claims for additional development of the record. A Supplemental Statement of the Case was issued by the VA Appeals Management Center in January 2013 that continued the denial of the claims. The appeal is once again before the Board. FINDING OF FACT The Veteran is shown to have chronic liver disease claimed as hepatitis C, chronic sinusitis, chronic rhinitis and chronic bilateral otitis that as likely as not to have had their clinical onset during his extensive period of active service. CONCLUSIONS OF LAW 1. By extending the benefit of the doubt to the Veteran, his chronic liver disability claimed hepatitis C is due to disease or injury that was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 2. By extending the benefit of the doubt to the Veteran, his disability manifested by chronic sinusitis is due to disease or injury that was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 3. By extending the benefit of the doubt to the Veteran, his disability manifested by chronic rhinitis is due to disease or injury that was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 4. By extending the benefit of the doubt to the Veteran, his disability manifested by chronic bilateral otitis is due to disease or injury that was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS After the evidence has been assembled, the Board is responsible for evaluating the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012). Indeed, in Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990), 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. Furthermore, the Board notes that it has reviewed all of the evidence in the claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate the issues adjudicated herein and what the evidence in the claims file shows, or fails to show, with respect to these claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet.App. 122, 128-30 (2000). I. Duties to notify and assist The Board has considered the provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012). VCAA provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. VCAA also requires VA notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion of the evidence is to be provided by the claimant and which part VA will attempt to obtain on behalf of the claimant. The Board need not, however, discuss the sufficiency of the notification letter sent to the Veteran during the current appeal - or VA's development of his claims - in light of the fact that service connection is being granted for all issues on appeal. Thus, any potential deficiency on the part of VA in complying with the provisions of VCAA has essentially been rendered moot by the Board's complete grant of the benefits sought on appeal. II. Law and Regulations In general, service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). 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 or injury was incurred in service. See 38 C.F.R. § 3.303(d) (2012). 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 between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also 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 (Fed. Cir. 2006). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet.App. 1, 8 (1999). VA's Manual 21-1MR, Part IV, subpart ii, Chapter 2, Section C, Topic 9b acknowledges that inhalation of asbestos fibers can result in cancer of the lung, bronchus, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate). The latent period for the development of disease due to exposure to asbestos ranges from 10 to 45 or more years between the first exposure and the development of the disease. M21-1MR, Part IV, subpart ii, Chapter 2, Section C, Topic 9d. Some of the major occupations involving exposure to asbestos include mining, milling, shipyard work, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products (such as clutch facings and brake linings), and manufacture and installation of products such as roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. M21-1MR, Part IV, subpart ii, Chapter 2, Section C, Topic 9f. The pertinent parts of the manual guidelines on service connection in asbestos-related cases are not substantive rules. Further, there is no presumption that a veteran was exposed to asbestos in service. Dyment v. West, 13 Vet.App. 141 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). Thus, with respect to claims involving asbestos exposure, VA must determine whether military records demonstrate evidence of asbestos exposure during service, whether there was pre-service and/or post-service occupational or other asbestos exposure, and whether there is a relationship between asbestos exposure and the claimed disease. M21-1MR, Part IV, Subpart ii, Chapter 1, Section H, Topic 29; DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). III. Hepatitis C In an April 1974 self-report of medical history completed at the time of his enlistment, the Veteran reported that he had previously been diagnosed with hepatitis. A physician who reviewed the Veteran's comments noted this disease had been diagnosed in 1971. A physical examination conducted during his enlistment, however, did not reveal any liver disorder. Subsequent in-service examinations note that the Veteran's pre-existing hepatitis was viral hepatitis, or type A hepatitis which had completely resolved with no sequelae. See an April 1976 self-report of medical history. Similarly, the October 2012 VA examiner stated that there is no correlation between hepatitis A - which is from fecal/oral transmission and is self limiting, and the currently claimed hepatitis C. There is a statutory presumption of soundness on enlistment. Specifically, a veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2012). In this case, the Board finds that the statutory presumption of soundness has not been rebutted by clear and unmistakable evidence. In particular, as noted, the record indicates that the Veteran contracted hepatitis A prior to enlistment and that this disease had completely resolved prior to his active duty service. Further, the Veteran is currently seeking service connection for hepatitis C and not the hepatitis A that had developed and resolved prior to his service. The remainder of the Veteran's service treatment records document that he tested positive for hepatitis C during his retirement physical. See, e.g., an April 2004 service treatment record. It was noted that the Veteran tested positive for the Hepatitis C antibody but a vial RNA test was "indeterminate." It was noted that this was either a false positive test report or that the Veteran had exposure to hepatitis C which had resolved. Upon review, however, the Board observes that the Veteran was diagnosed with hepatitis C in a July 2004 VA examination conducted prior to his separation from service. In a hepatitis questionnaire completed in November 2010, the Veteran reported that he shared razor blades with shipmates while stationed overseas. Further, during the April 2010 hearing, the Veteran testified that he had assisted in administering first aid may have been exposed to another person's blood. See the hearing transcript, pages 14-15. Following his separation from service, the Veteran continued to be diagnosed with hepatitis C. See, e.g., a December 2006 private treatment record. In October 2012, the Veteran was afforded a VA examination to determine the etiology of his hepatitis C. While the examiner reported that the Veteran did not have hepatitis C, the record reflects that no laboratory studies were conducted. In this capacity, the Board notes that the VA examination form stated that a diagnosis of hepatitis C must be confirmed by recombinant immunoblot assay (RIBA) testing. The Board also notes that, while the VA examiner stated that the Veteran did not have any signs or symptoms of hepatitis, such as weight loss, the VA treatment records noted that he had lost 35-40 pounds following his separation from service. See an October 2007 VA treatment record. Interestingly, while the VA examiner stated that the Veteran's in-service diagnosis of hepatitis C diagnosis was a "false-positive" and that the Veteran does not currently have this disease, she then provided a medical opinion which stated that it was at least as likely as not (50 percent probability or greater) that the current hepatitis C was incurred in, or caused by an in-service injury. Significantly, the VA examination noted that the Veteran had imaging studies showing that the liver demonstrated mildly coarsened parenchyma suggesting fatty infiltration of chronic liver disease. Based on these findings, the Board finds that the October 2012 VA examination is inadequate for rating purposes. See Bloom v. West, 12 Vet.App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects 'clinical data or other rationale to support his opinion'); see generally Hernandez- Toyens v. West, 11 Vet.App. 379, 382 (1998) (the failure of the health care provider to provide a basis for his/her opinion goes to the weight or credibility of the evidence). In summary, the Veteran was diagnosed with hepatitis C while on active duty. He was also diagnosed with hepatitis C shortly after his separation from service and there is no evidence of post-service, intercurrent causes for the diagnosis of hepatitis. The Board also finds this evidence sufficient for the purpose of establishing a nexus linking the onset of the current liver changes to his extent period of active service. This case meets the three-element test as set forth in 38 C.F.R. § 3.303(a) - (1) the existence of a present disability (the diagnosis of hepatitis C); (2) in-service incurrence of a disease (a diagnosis of hepatitis C); and (3) a causal relationship between the present disability and the disease or injury incurred during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The nexus requirement here was established by way of credible lay evidence and competent, circumstantial medical evidence. Both the lay and medical evidence of record is probative in the instant case. In addition, the Board emphasizes that medical evidence is not always or categorically required in every instance to establish the required nexus or linkage between the claimed disability and the Veteran's military service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Moreover, 38 C.F.R. § 3.303(a) provides that determinations as to service connection will be based on review of the entire evidence of record, with due consideration to the policy of the VA to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. Accordingly, resolving doubt in the Veteran's favor, the evidence supports service connection for liver disease claimed as hepatitis C. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. IV. Rhinitis and Sinusitis The Veteran contends that he developed chronic rhinitis and sinusitis as a result of his in-service exposure to asbestos, dust and toxic fumes. See, e.g., the June 2005 notice of disagreement. The record reflects that the during the Veteran's extensive period of active duty service, his Military Occupational Specialties (MOS) included a Ship Repair Officer, a Ship Construction and Repair Superintendent, and a Ship's Engineer Officer. The Veteran's service treatment records include a June 1989 Asbestos Exposure Questionnaire wherein he reported working with asbestos from 1979 to 1983. He also reported being exposed to mild dust and moderate chemical fumes while serving as a Ship's Engineer Officer. Accordingly, based on the nature of the Veteran's MOS and his in-service testing for asbestos related diseases, the Board finds that his statements of exposure to asbestos, dust, and toxic fumes are consistent with the circumstances of his service. 38 U.S.C.A. § 1154(a) (West 2002). An in-service injury has been demonstrated. Further, the service treatment records document that he was diagnosed with sinusitis in September 2002 and rhinitis in October 2002. During his June 2004 separation examination, the Veteran complained of recurring problems with congestion, sinusitis and seasonal allergies. An in-service disease has also been demonstrated. Following his separation from service, the Veteran has stated that he has continued to experienced rhinitis and sinusitis. See the hearing transcript, page 10. He was diagnosed with sinusitis and rhinitis during the October 2012 VA examination. A current disability has therefore been demonstrated. As noted, the Board remanded the Veteran's claim in August 2012 in order to schedule him for a VA examination to determine the etiology of his rhinitis and sinusitis. After reviewing the Veteran's claims file and conducting a clinical examination, the VA examiner stated that he could not determine whether the chronic sinusitis or rhinitis had their onset during service as "there [was] no medical evidence to support or negate that asbestos may or may not be related to . . . chronic sinusitis and non-allergic rhinitis." While the examiner was unable to determine if the Veteran's sinusitis and rhinitis were related to his in-service asbestos exposure, she did report that both disabilities had their onset in 1993 while he was on active duty and that he had continued to experience the same symptoms since this date. (Interestingly, the VA examiner later opined that she could not determine if the Veteran's disabilities had their onset during his active duty service; however, her earlier statements, and the remainder of the evidence of record leaves little doubt that this is the case.) The Board observes that the record does not contain any probative evidence to suggest that the claimed sinusitis and rhinitis did not develop during his long period of active service. The Veteran has provided credible testimony that his symptoms developed during service and have continued to the present. These statements are consistent with the evidence of record. Thus, a competent and credible nexus has been demonstrated. In summary, the Board is of the opinion that the Veteran has met all requirements needed establish service connection for sinusitis and rhinitis. Specifically, the claims folder contains competent and credible evidence of a nexus between the current diseases and events of his active service. V. Bilateral Otitis The Veteran is seeking service connection for bilateral otitis. As an initial matter, the Board notes that otitis is an "inflammation of the ear, often with pain, fever, hearing loss, tinnitus and vertigo." See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (30th Ed. 2003) at 1338. The Veteran contends that he develops otitis as a result of his now service-connected sinusitis and rhinitis. Upon review, however, the Board finds that service connection may be granted under a theory of direct incurrence. In the present case, the Veteran's service treatment records document that he was diagnosed with otitis on multiple occasions. See, e.g., a February 2001 service treatment record. The record reflects that, after the Veteran separated from service, he continued to experience ear problems and has been diagnosed with otitis. See the April 2010 hearing transcript, page 8; see also a July 2006 private treatment record. During the October 2012 VA examination, the Veteran reported that he had several episodes of "otitis accompanying or following rhinitis or sinusitis." In reviewing the evidence of record, the VA examiner observed that the Veteran's post-service treatment records documented that he had been treated for otitis three times per year. After conducting the examination and reviewing the claims file, the VA examiner stated that the Veteran's "chronic otitis dated back to 1993" and that he has been experiencing continuing symptoms since his active duty service. Similar to her rhinitis and sinusitis opinion, the VA examiner also stated that she was unable to determine whether the Veteran's otitis disability had its clinical onset during service. Upon review, however, her earlier conclusion that the Veteran's disability began in 1993, during his active duty service, is consistent with the evidence of record and the Veteran's competent and credible lay statements. In summary, the Board finds that the Veteran has met all requirements needed establish service connection for chronic otitis. Specifically, the claims folder contains competent and credible evidence of a nexus between the Veteran's disease and his active duty service. ORDER Service connection for chronic liver disease claimed as hepatitis C is granted. Service connection for chronic sinusitis is granted. Service connection for chronic rhinitis is granted. Service connection for chronic bilateral otitis is granted. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs