Citation Nr: 1729548 Decision Date: 07/27/17 Archive Date: 08/04/17 DOCKET NO. 10-16 668 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to an increased rating for service-connected residuals of hepatitis B, currently evaluated as noncompensable. 2. Entitlement to service connection for hepatitis C. REPRESENTATION Veteran represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD S. Sorathia, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1976 to February 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Veteran withdrew his April 2010 request to appear before a member of the Board. 38 C.F.R. § 20.704(e). The issue of entitlement to an increased rating for hepatitis B is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT After resolving reasonable doubt in favor of the Veteran, hepatitis C had its onset in service. CONCLUSION OF LAW The criteria for service connection for hepatitis C have been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). The Veteran contends that he contracted hepatitis C during an in-service appendectomy at the same time he contracted his service-connected hepatitis B. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Although the service treatment records are silent for a diagnosis of or treatment for hepatitis C, the service treatment records reveal that the Veteran was hospitalized in March 1979, shortly after he had an appendectomy. He was diagnosed with hepatitis B. VA treatment records confirm a diagnosis of hepatitis C, which was diagnosed in approximately 2007. Medical evidence of record also reveals that the Veteran began using intravenous drugs in approximately 2005. See November 2008 medical opinion, January 2008 VA examination report, and December 2007 VA treatment record. Although the Veteran was provided a VA examination in January 2008 to determine the severity of his hepatitis B, the examination report does not contain a medical opinion regarding the etiology of the hepatitis C. The Veteran submitted a November 2008 medical opinion from his VA health care provider. The health care provider acknowledged the Veteran's admitted use of intravenous drugs beginning in 2005, but opined that his "highest risk" to acquire hepatitis C was during his in-service surgery. She stated that the fibrotic changes in the Veteran's liver indicate a long standing infection and that hepatitis C is typically an extremely slow chronic infection. She further stated that for any hepatic fibrosis to be detectable within only a couple of years of exposure has not been documented. Moreover, she explained that hepatitis B and hepatitis C are both blood borne infections and can be transmitted at the same time. She additionally stated that there was no diagnostic test for hepatitis C until 1992. She also acknowledged the Veteran's 1993 ear piercing but stated that this is a relatively low risk behavior. The Board finds this medical opinion to be highly probative as it is based on the Veteran's medical history and supported by medical findings and a complete rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In May 2009, the AOJ obtained a medical opinion. The opinion stated that the Veteran's social history is the likely source for his hepatitis C diagnosis and that his hepatitis C was acquired while a civilian due to intravenous drug abuse. However, this medical statement does not contain a complete rationale. This medical statement does not address the November 2008 positive medical opinion, the contention that the Veteran could have contracted hepatitis C in service at the same time he contracted hepatitis B, and the contention that the Veteran's intravenous drug use began only a few years prior to his diagnosis of hepatitis C. The November 2008 medical opinion is more probative than the May 2009 medical opinion as the May 2009 statement does not contain a complete discussion of the Veteran's medical history and does not contain an adequate rationale to support the conclusion rendered. Id. In light of the probative November 2008 medical opinion, the Board finds that hepatitis C had its onset in service. Accordingly, service connection for hepatitis C is granted. ORDER Service connection for hepatitis C is granted. REMAND The Veteran contends that the residuals of hepatitis B have worsened since his last VA examination, which was afforded to him approximately nine years ago in January 2008. See June 2017 informal hearing presentation. Accordingly, this claim is remanded in order to afford the Veteran a contemporaneous VA examination to determine the nature, extent, and severity of his residuals of hepatitis B. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). VA treatment records were last associated with the claims file in December 2007, with the exception of a few treatment records from 2011. Review of the claims file reveals that the Veteran has received ongoing VA treatment since December 2007. Accordingly, VA treatment records dated since December 2007 should be associated with the claims file. See Bell v. Derwinski, 2 Vet. App. 611 (1992); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016) (holding that 38 C.F.R. § 3.159(c)(3) expanded VA's duty to assist to include obtaining VA medical records without consideration of their relevance). Accordingly, the case is REMANDED for the following action: 1. Associate with the claims file records of VA treatment dated since December 2007. 2. Afford the Veteran the opportunity to identify any private treatment for his hepatitis. The AOJ should take appropriate measures to associate any identified outstanding private treatment records with the claims file. Any negative responses should be associated with the claims file. 3. Schedule the Veteran for an appropriate VA examination to determine the nature, extent, and severity of any residuals of hepatitis B. The claims file should be reviewed and any tests and studies deemed necessary should be performed. The examiner should report on all the current symptoms of the hepatitis B and discuss the extent and severity of each symptom when appropriate. To the extent possible, the examiner should distinguish between the symptoms of hepatitis B and hepatitis C. 4. Then readjudicate the claim. If any of the benefit sought on appeal is denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matter 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 2014). ______________________________________________ Cynthia M. Bruce Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs