Citation Nr: 18150221 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 14-44 080 DATE: November 14, 2018 ORDER An earlier effective date of December 29, 2003, for the grant of service connection for ischemic heart disease (IHD), is granted. Service connection for cirrhosis, as secondary to PTSD with drug and alcohol abuse, is granted. REMANDED The issue of entitlement to service connection for hepatitis C is remanded. The issue of entitlement to special monthly compensation (SMC) based on the need for aid and attendance is remanded. The issue of entitlement to an effective date earlier than December 29, 2003, for the grant of service connection for IHD is remanded. FINDINGS OF FACT 1. The Veteran is a Nehmer class veteran and had a pending claim of entitlement to service connection for a “heart attack” prior to August 18, 2010. 2. Ischemic heart disease (coronary artery disease) is shown in the record as early as December 29, 2003. 3. The Veteran’s cirrhosis is secondary, at least in part, to his service-connected PTSD with drug and alcohol abuse. CONCLUSIONS OF LAW 1. The criteria for an earlier effective date of December 29, 2003, for the grant of service connection for ischemic heart disease are met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.400, 3.816. 2. The criteria for service connection for cirrhosis on a secondary basis are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1966 to September 1969. This matter is before the Board following his appeals of March 2012, November 2012, February 2015, and April 2016 rating decisions. In May 2018, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. As a preliminary matter, the Board observes that, in June 1989, the issue of entitlement to service connection for a skin disorder due to Agent Orange exposure was remanded by the Board pending a stay pursuant to Nehmer v. United States Veterans Administration, 712 F. Supp. 1404 (N.D. Cal., 1989) (Nehmer I). In November 1990 correspondence, VA indicated that it was still awaiting revised regulations for adjudication of Agent Orange claims, and did not know when final regulations would be completed, but that the Veteran’s claim would be given every consideration. It does not appear that any further action was taken on the appeal after November 1990. Indeed, while the Veteran attempted to reopen his skin claim in June 1998 and May 2000, and was informed in correspondence dated in July 2000 that his previous claim had been denied and the appeal period had expired, this Board cannot locate a final Board or rating decision on the issue of entitlement to a skin disorder to include as a result of Agent Orange exposure, following the June 1989 remand. Thus, the matter is referred to the Agency of Original Jurisdiction for appropriate action, to include readjudication of the claim. 1. Earlier Effective Date for Ischemic Heart Disease The Veteran contends that an effective date prior to August 18, 2010 is warranted for ischemic heart disease. Specifically, the Veteran asserts that the effective date of the award should be in 1997, when he asserts that he had a heart attack. See Veteran’s statement, March 2012; Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). By way of background, the Veteran was invited to file a claim for service connection for ischemic heart disease in July 2011, after the RO noticed that the Veteran had a diagnosis of CAD in the record. The Veteran responded the next month by filing an informal claim. A March 2012 rating decision granted service connection for ischemic heart disease associated with herbicide exposure and assigned a 10 percent evaluation effective August 18, 2010, and a 60 percent evaluation effective October 19, 2011. The assigned effective date of service connection was based on the date of receipt of an August 2010 claim (regarding assignment of a fiduciary/competence, decided by a March 2011 rating decision) that resulted in the discovery of the CAD diagnosis. VA has promulgated special rules for the effective dates for the award of presumptive service connection based on exposure to herbicides, pursuant to orders of a United States District Court in the class action of Nehmer v. United States Department of Veterans Affairs. See 38 C.F.R. § 3.816; see also Nehmer v. United States Veterans Administration, 712 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I); Nehmer v. United States Veterans Administration, 32 F. Supp. 2d. 1175 (N.D. Cal. 1999) (Nehmer II); Nehmer v. Veterans Administration of the Government of the United States, 284 F.3d 1158 (9th Cir. 2002) (Nehmer III). Specifically, a Nehmer class member is defined as a Vietnam veteran who has a “covered herbicide disease.” 38 C.F.R. § 3.816. According to 38 C.F.R. § 3.816 (b)(2) a “covered herbicide disease” includes a disease for which the Secretary of Veterans Affairs has established a presumption of service connection before October 1, 2002, pursuant to the Agent Orange Act of 1991. Ischemic heart disease, to include coronary artery disease, was not added to the list of presumptive disabilities until August 31, 2010. 75 Fed. Reg. 53, 202 (August 31, 2010). Notwithstanding the language of 38 C.F.R. § 3.816, however, notice accompanying the issuance of the final August 31, 2010 rule specifically notes the Nehmer provisions apply to the newly covered diseases, to include coronary artery disease. Id. Here, the Veteran served in the Republic of Vietnam during the Vietnam War era and has a diagnosis of coronary artery disease. Accordingly, the Board concludes that the Veteran is a “Nehmer class member” as defined in the law. Certain effective dates apply if a Nehmer class member was denied compensation for a covered herbicide disease between September 25, 1985 and May 3, 1989; if there was a claim for benefits pending before VA on May 3, 1989; or if a claim was received by VA between May 3, 1989 and the effective date of the applicable liberalizing law. 38 C.F.R. § 3.816(c)(1)-(3). If a class member’s claim for disability for the covered herbicide disease was received by VA between May 3, 1989 and the effective date of the applicable liberalizing law, as in this case, the effective date of the award will be the later of the date such claim was received by VA or the date the disability arose. 38 C.F.R. § 3.816(c)(2). Here, the record shows that the Veteran filed a claim of entitlement to service connection for “Agent Orange contamination” in November 1984, and specifically listed treatment for disabilities to include a “heart attack.” Thus, prior to May 3, 1989, he had claim pending for a disability that could reasonably be construed as an Agent Orange-related disability affected by Nehmer. Additionally, the medical evidence suggests that the Veteran’s ischemic heart disease arose prior to August 18, 2010. In this regard, VA treatment notes show that CAD was diagnosed as early as December 29, 2003. Thus, the Board finds that an effective date of at least as early as December 29, 2003, is assignable for ischemic heart disease. To the extent that an even earlier effective date may be warranted, that issue is discussed in the Remand section below. 2. Service Connection for Cirrhosis Service connection on a secondary basis is merited if there is (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). The record shows that the Veteran had cirrhosis as early as February 2014, and such was objectively demonstrated on a May 2016 VA magnetic resonance imaging. His PTSD and drug and alcohol abuse are also service connected. Therefore, the first two prongs of the test are met. As for the third prong, VA treatment notes support that the Veteran’s cirrhosis is due, at least in part, to his service-connected alcohol abuse. For example, in January 2016, it was noted that the Veteran had a past medical history of “etoh cirrhosis” and, in March 2016, he was noted to have “alcoholic liver cirrhosis.” Similarly, in April 2016 and July 2016, it was noted that the Veteran had “etoh/Hep C cirrhosis.” An April 2016 VA hepatitis examiner and a July 2016 VA diabetes examiner both also noted that the Veteran had “alcoholic liver cirrhosis.” More recently, in December 2017, in connection with treatment for cirrhosis secondary to hepatitis C, it was noted that the Veteran had a history of “heavy alcohol abuse,” and the Veteran was also advised to stop drinking due to his cirrhosis. In January 2018, the Veteran reported that he was told his liver disease was due to drinking, though he did not believe it. Notwithstanding evidence that the Veteran’s cirrhosis was also related to hepatitis C (which has not yet been service connected), the competent and probative medical evidence of record also supports a causal link between cirrhosis and the Veteran’s service-connected alcoholism. Therefore, all three prongs of the service connection test are met, and the claim of entitlement to service connection for cirrhosis, on a secondary basis, is allowed. REASONS FOR REMAND 1. The issue of entitlement to service connection for hepatitis C is remanded. The Veteran contends that he contracted hepatitis C during his military service, to include as a result of a circumcision, or as a result of engaging in high risk behavior, such as unprotected sex, therein, as he testified in May 2018. Initially, the record is not entirely clear as to when the Veteran was diagnosed with hepatitis. In this regard, since service, the Veteran has provided generally inconsistent statements regarding his medical history. Specific to hepatitis, the Board notes that it appears the Veteran denied a history of hepatitis during November 1987 VA treatment, and did not otherwise report it when prompted in September 1989. However, liver abnormalities were noted at that time, and in January 1990, the Veteran also reported fatigue and weight loss. Then, during a November 1993 VA PTSD examination, he reported that he was in Vietnam for two years and “did incur hepatitis.” In February 1994, it was noted his LFTs were elevated and that a hepatitis panel was going to be ordered, but it is not clear whether the panel was obtained. Thereafter, in March 1996, it was noted that blood tests were positive for hepatitis B, and in January 1997, a history of hepatitis was noted. Then, in April 2002, it was noted that the Veteran tested positive for hepatitis C. In May 2004, the Veteran was noted to have active hepatitis C and, in December 2004, it was also noted that hepatitis B antigens were negative. The record thereafter shows diagnosis and treatment for hepatitis C, which the Veteran has reported being diagnosed as early as 1989. In April 2016, the Veteran was afforded a VA examination during which he reported a belief that he incurred hepatitis C as a result of penile surgery in Vietnam. However, the examiner noted that the Veteran did not “get blood products” in the military, but received them in 1989 and 2006 due to a gastrointestinal bleed, and “[t]his may be the source of Hep c.” As the examiner’s opinion was equivocal, it is inadequate. Moreover, the opinion did not consider the Veteran’s high risk sexual activity documented in the STRs, his post-service service-connected intravenous and intranasal substance abuse secondary to PTSD, and otherwise failed to offer an adequate rationale for the conclusion reached. The Board also notes that the Veteran’s actual blood transfusion history is unclear from the record. Thus, the Board finds that an addendum opinion should be obtained on remand. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). 2. The issue of entitlement SMC based on the need for Aid and Attendance is remanded. Initially, as a final decision on the issue of entitlement to service connection for hepatitis C could have an impact on the SMC claim based on the need for aid and attendance, a final decision on that issue would, at this point, be premature. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). Thus, that claim is also being remanded. There is currently evidence of record supporting that the Veteran may be in need of aid and attendance, but it is unclear whether such need is due to service-connected disabilities. In this regard, relevant reports dated in October 2014, June 2016, and February 2017, submitted in support of the SMC claim, appear to have considered both service- and non-service-connected disabilities. Thus, the Veteran should also be provided an examination to determine whether he needs aid and attendance due to service-connected disabilities. 3. The issue of entitlement to an effective date earlier than December 29, 2003, for the grant of service connection for IHD is remanded. The Veteran contends that an effective date at least as early as 1997 is warranted for his IHD. In this regard, he contends that he has had CAD and multiple heart attacks since service. However, the record as it stands does not entirely support his contentions. In this regard, since service, he has provided varying accounts of the number of heart attacks he has had, and the years during which they reportedly occurred. Moreover, the current medical evidence does not actually show treatment for any heart attack, but rather the Veteran’s self-reported history of heart attacks. For example, while the Veteran has repeatedly asserted that he had a heart attack in January 1997 following the death of his mother, the corresponding treatment records show a diagnosis of stress or grief-related chest pain, and a normal ECG. Nevertheless, the Board also observes that, prior to December 29, 2003, the Veteran was treated with aspirin and nitroglycerin; had generally reported a history of heart problems since the 1970s, possibly stemming from a virus; and, a May 1997 VA note related to a request for fee-basis treatment notes the Veteran’s reported difficulty traveling due to chronic arteriosclerotic heart disease. Given the foregoing, the Board finds that the Veteran should be provided another opportunity to identify outstanding records dating since service and prior to December 29, 2003, related to his claimed CAD or heart attacks. The matters are REMANDED for the following action: 1. Ask the Veteran to identify any private providers who have treated him for his heart disability since service. After securing the necessary releases, the AOJ should request any relevant treatment records, to specifically include any records relating to heart attacks. If the requested records are unavailable, the claims file should be annotated as such and the Veteran and his representative notified of such. 2. Obtain an addendum opinion from an appropriate clinician regarding the etiology of the Veteran’s hepatitis C. If a clinical evaluation is deemed necessary to answer the questions presented, one should be scheduled. The entire claims file, to include a complete copy of this remand should be made available to and reviewed by the examiner. A history of all the Veteran’s potential risk factors for hepatitis C should be detailed in full. The examiner must list and discuss all documented and reported pre-service, in-service, and post-service risk factors. The examiner is asked to address the Veteran’s contentions that he contracted hepatitis C via high risk sexual behavior or circumcision (which was infected and drained) in service, as well as the Veteran’s service-connected drug use (including intravenous and intranasal) post service. The examiner should then rank the documented risk factors relative to the probability that any hepatitis C infection is etiologically related to the service-related risk factors. The examiner is then requested to provide an opinion as to whether it is at least as likely as not that any diagnosed hepatitis C is related to the Veteran’s active military service, or to service-connected disability, including PTSD with drug and alcohol abuse. The explanation should also address the significance of the timing of the first manifestations of symptoms and diagnosis relative to the Veteran’s period of military service from August 1966 to September 1969. 3. After the development outlined above has been completed, schedule the Veteran for an examination to determine whether he is in need of aid and attendance due to service-connected disabilities. If it is determined that he is, the examiner should estimate on what date during the period on appeal the need for aid and attendance arose. S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Fagan, Counsel