Citation Nr: 1436993 Decision Date: 08/19/14 Archive Date: 08/27/14 DOCKET NO. 09-30 951 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for hepatitis C. 2. Entitlement to service connection for cirrhosis of the liver. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran served on active duty from July 1969 to June 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, in which the RO denied service connection for hepatitis C and cirrhosis of the liver. The Board notes that, in addition to hepatitis C and cirrhosis of the liver, the RO also certified a separate claim of entitlement to service connection for yellow jaundice. However, it is clear from the Veteran's informal claim that he was merely asserting that his hepatitis C and cirrhosis were related to an in-service episode of jaundice, and was not attempting to a raise a separate and distinct claim for jaundice as a separate disability. Furthermore, despite the consistent absence of jaundice on physical examination over the last several years, it is clear from how frequently health care providers took note of the absence of jaundice on examination that jaundice is a common symptom associated with the Veteran's liver diseases. For this reason, the Board finds that jaundice is more appropriately treated as a symptom or potential symptom encompassed within the claims of entitlement to service connection for hepatitis C and cirrhosis of the liver, rather than being characterized as a separate issue. The Board also notes that additional medical records relevant to the claims of entitlement to service connection for hepatitis C and cirrhosis of the liver were associated with the claims file following the most recent Supplemental Statement of the Case (SSOC). However, as those claims are being granted in full herein, there is no prejudice in proceeding with a decision on those issues without providing the RO an opportunity to review those records in the first instance. FINDINGS OF FACT 1. The evidence of record favors a finding that the Veteran's hepatitis C disability is related to his service-connected posttraumatic stress disorder (PTSD) disability. 2. The evidence of record favors a finding that the Veteran's cirrhosis of the liver disability is related to his service-connected hepatitis C and PTSD disabilities. CONCLUSIONS OF LAW 1. A hepatitis C disability was caused by his service-connected PTSD disability. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2013). 2. A cirrhosis of the liver disability was caused by his service-connected hepatitis C and PTSD disabilities. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159). Given the favorable disposition of the claims for service connection for hepatitis C and cirrhosis of the liver, the Board finds that all notification and development actions needed to fairly adjudicate this claim have been accomplished. Service Connection Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). 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). Service connection can be granted for certain diseases, including cirrhosis of the liver and hepatitis C, if manifest to a compensable degree within one year of separation from active service. Such diseases shall be presumed to have been incurred in service even though there is no evidence of disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.307, 3.309 (2013). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden for certain chronic disabilities such as hypertension is through a demonstration of continuity of symptomatology. In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Service connection may be granted for a disability that is proximately due to or the result of an established service-connected disability. 38 C.F.R. § 3.310 (2013). This includes disability made chronically worse by service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). In cases of aggravation of a veteran's nonservice-connected disability by a service-connected disability, such veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Id. at 448, see also 38 C.F.R. § 3.322 (2013). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In general, the law and regulations provide that compensation shall not be paid if disability was the result of the person's own willful misconduct, to include the abuse of alcohol or drugs. See 38 U.S.C.A. §§ 105, 1110 (West 2002); 38 C.F.R. §§ 3.1(n), 3.301 (2013); see also VAOPGPREC 2-97 (January 16, 1997). With respect to alcohol and drug abuse, Section 8052 of the Omnibus Budget Reconciliation Act (OBRA) of 1990, Pub. L. No. 101-508, § 8052, 104 Stat. 1388 , 1388- 351, prohibits, effective for claims filed after October 31, 1990, payment of compensation for a disability that is a result of a Veteran's own alcohol or drug abuse. Moreover, § 8052 also amended 38 U.S.C.A. § 105(a) to provide that, with respect to claims filed after October 31, 1990, an injury or disease incurred during active service will not be deemed to have been incurred in the line of duty if the injury or disease was a result of the person's own willful misconduct, including abuse of alcohol or drugs. See 38 U.S.C.A. § 105 (West 2002); 38 C.F.R. §§ 3.1(n), 3.301 (2013). Service connection may be recognized for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, his or her service-connected disability. See, Allen, supra. In order to qualify for service connection in this regard, the Veteran must establish, by clear medical evidence, that his alcohol or drug abuse disability is secondary to or is caused by a service-connected disorder. See Allen, 237 F.3d at 1381. Factual Background The Veteran's service treatment records are negative for treatments or complaints of cirrhosis of the liver or yellow jaundice. An April 1972 service treatment report however noted that the Veteran received treatment in Japan for infectious hepatitis. Service treatment records also noted extensive heroin use. A November 2005 VA treatment note reported that the Veteran indicated that he was hospitalized in Japan in 1970 due to jaundice. A January 2008 VA treatment report indicated that there was an active diagnosis of cirrhosis of the liver. An April 2008 VA treatment report noted a diagnosis of hepatitis C and cirrhosis. March 2009 and July 2009 VA treatment reports noted a past medical history of jaundice in 1970. An August 2009 VA hepatology immunization treatment note indicated that the Veteran had hepatitis C and stage 4 fibrosis which was consistent with cirrhosis of the liver. A February 2010 VA hepatology immunization note reported that the Veteran was known to have alcoholic liver disease with advanced liver cirrhosis secondary to alcoholism and hepatitis C. The Veteran also denied any trouble with gastrointestinal bleeding or jaundice. The Veteran underwent a VA examination in July 2010. The Veteran reported that he had "yellow jaundice" in 1969 or 1970 while in Vietnam. He had no further episodes prior to his 1972 discharge from active duty. He was first diagnosed with hepatitis C in 2007. The examiner noted that the Veteran's service treatment records showed treatment for infectious hepatitis in 1972. The examiner indicated that the most likely risk factor for hepatitis C was intravenous (IV) drug use of which the Veteran gives a history of IV drug use after service period. The examiner concluded that it was less likely than not that the Veteran's hepatitis C was caused by or a result of the documented treatment and diagnosis of infectious hepatitis shown in service. The examiner indicated that the Veteran's hepatitis that he was treated for on active duty was most likely hepatitis A and that the most likely causative factor for the hepatitis C was the IV drug use that occurred after active duty. In a September 2010 VA hepatology immunization note, the Veteran denied any trouble with gastrointestinal bleeding or jaundice. The Veteran underwent a VA examination in December 2010 for PTSD. The examiner opined that the Veteran's drug dependence and alcohol dependence were secondary to his PTSD symptoms and were a form of self-medication. Analysis In general, for service connection to be granted for hepatitis C, the evidence must show that a veteran's hepatitis C infection, risk factor(s), or symptoms were incurred in or aggravated by service. The evidence must further show by competent medical evidence that there is a relationship between the claimed in-service injury and the veteran's hepatitis C. Risk factors for hepatitis C include intravenous (IV) drug use, blood transfusions before 1992, hemodialysis, intranasal cocaine, high-risk sexual activity, accidental exposure while a health care worker, and various kinds of percutaneous exposure such as tattoos, body piercing, acupuncture with non-sterile needles, shared toothbrushes or razor blades. See VBA letter 211B (98-110) November 30, 1998. A VA Fast Letter (FL) issued in June 2004 (FL 04-13, June 29, 2004) identified "key points" that included the fact that hepatitis C is spread primarily by contact with blood and blood products, with the highest prevalence of hepatitis C infection among those with repeated, direct percutaneous (through the skin) exposure to blood (i.e., intravenous drug users, recipients of blood transfusions before screening of the blood supply began in 1992, and hemophiliacs treated with clotting factor before 1987). After resolving all reasonable doubt in favor of the Veteran, the Board finds service connection for a hepatitis C disability as secondary to the Veteran's service-connected PTSD disability is warranted. Additionally, the Board finds that service connection is also warranted for cirrhosis of the liver disability as secondary to the Veteran's service-connected hepatitis C and PTSD disabilities. The Board notes that the Veteran has a current diagnosis of hepatitis C and active cirrhosis of the liver. Notably, the July 2010 VA examiner addressed the Veteran's hepatitis C claim on a direct basis and concluded that it was less likely than not that the Veteran's hepatitis C was caused by or a result of the documented treatment and diagnosis of infectious hepatitis shown in service. However, the Board notes that in a September 2011 rating decision, the RO, in part, granted service connection for PTSD at a 70 percent disability rating, effective August 6, 2010. The record demonstrates that the Veteran's current hepatitis C disability has been attributed to his history of IV drug use which, in turn, has been attributed to his service-connected PTSD. Likewise, the Veteran's current cirrhosis of the liver disability has been attributed to the Veteran's hepatitis C and his substance abuse. Accordingly, service connection for hepatitis C and cirrhosis of the liver is warranted on a secondary basis as it is shown that the Veteran's alcohol or drug abuse disability is secondary to or is caused by a service-connected disorder. See Allen, 237 F.3d at 1381. As noted above, the Veteran has been diagnosed with hepatitis C and cirrhosis of the liver. He has documented history of IV drug use which has been found to be the cause of his hepatitis C by the July 2010 VA examiner. Additionally, the December 2010 VA examiner related the Veteran's substance abuse to the service-connected PTSD which supports the proposition that the Veteran's hepatitis C is related to the service-connected PTSD. Similarly, the February 2010 VA hepatology immunization note reported that the Veteran had advanced liver cirrhosis secondary to alcoholism and hepatitis C which supports the proposition that the Veteran's cirrhosis of the liver is related to the service-connected PTSD and hepatitis C. The Board also notes that the July 2010 VA examiner's finding that the Veteran's hepatitis C is the result of IV drug use is not contradicted by any other medical evidence or opinion. Additionally, the December 2010 VA opinion regarding the nexus of a hepatitis C disability to the Veteran's service-connected PTSD and the February 2010 VA opinion regarding the nexus of a cirrhosis of a liver disability to hepatitis C and alcoholism are not contradicted by any other medical evidence or opinion. Accordingly, when resolving all doubt in the Veteran's favor, the Board concludes that a grant of service connection for a hepatitis C disability as secondary to the service-connected PTSD disability is warranted as there is evidence of a current hepatitis C disability as well as a nexus or relationship between this disability and his service-connected PTSD disability. Additionally, when resolving all doubt in the Veteran's favor, the Board concludes that a grant of service connection for cirrhosis of the liver as secondary to the service-connected PTSD and hepatitis C disabilities is warranted as there is evidence of a current cirrhosis of the liver disability as well as a nexus or relationship between this disability and his service-connected PTSD hepatitis C disabilities. A remand for a VA examination is not necessary because the evidence of record is sufficient to grant the Veteran's claims, and a remand would only serve to unnecessarily delay final adjudication of the claims. In sum, for the reasons and bases discussed above, the Board has resolved doubt in favor of the Veteran, and service connection for a hepatitis C disability and a cirrhosis of the liver disability as secondary to a service-connected disability is granted. See 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for hepatitis C is granted. Entitlement to service connection for cirrhosis of the liver is granted. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs