Citation Nr: 18120811 Decision Date: 07/24/18 Archive Date: 07/24/18 DOCKET NO. 14-43 583 DATE: July 24, 2018 ORDER Entitlement to service connection for hepatitis C is granted. Entitlement to an initial compensable disability rating for service-connected hypertension is granted. FINDINGS OF FACT 1. The Veteran’s hepatitis C is etiologically related to his service, on either a direct or secondary basis. 2. The Veteran’s hypertension is manifested by diastolic pressure predominantly above 100, requiring continuous medication for control. CONCLUSIONS OF LAW 1. The criteria for service connection for hepatitis C are met. 38 U.S.C. §§ 1110, 5103, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The evidence of record being in equipoise, the criteria for an initial compensable disability rating for hypertension are met. 38 U.S.C. §§ 1110, 1155, 5103, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.104, Diagnostic Code 7101. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from February 1972 to February 1976. The Veteran also served in the Navy Reserve between February 1976 and April 1984. This case is on appeal before the Board of Veterans’ Appeals (Board) from a February 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103; 38 C.F.R. §§ 3.159, 3.326(a). The Board herein grants in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be discussed. In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence of record, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran seeks service connection for hepatitis C and an initial compensable disability rating for his service-connected hypertension. The Board finds that the preponderance of the evidence supports the Veteran’s claim for hepatitis C, and that the evidence is in equipoise regarding his hypertension claim. Accordingly, the Board grants the appeal. 1. Hepatitis C The Veteran alleges that his hepatitis C was transmitted during an in-service sexual assault in May 1973. See November 2014 Form 9. Service connection means that the facts establish that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish service connection for a disability, there generally must be (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). Service connection may also be established for any disease diagnosed after discharge when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Lastly, service connection may be granted, on a secondary basis, for a disability, which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310. The VA recognizes a number of risk factors for hepatitis C. Such risk factors include transfusion of blood or blood products before 1992, organ transplant before 1992, hemodialysis, tattoos, body piercing, IV drug use (from shared instruments), high-risk sexual activity, intranasal cocaine (from shared instruments), accidental exposure to blood products as a health care worker, combat medic, or corpsman by percutaneous (through the skin) exposure or mucous membrane exposure, and other direct percutaneous exposure to blood such as by acupuncture with non-sterile needles or the sharing of toothbrushes or shaving razors. VA Training Letter 211A (01-02) April 17, 2001; VA Training Letter 211B (98-110) (November 30, 1998). Despite the Veteran’s assertions that he was infected with hepatitis C in May 1973, the disease was not discovered until January 1996. Although hepatitis C can be transferred during sexual contact, the Board notes that the Veteran’s claims file reflects a number of other hepatitis C risk factors. The Veteran admitted to a history of alcohol abuse and illicit drug use between 1976 and 1989. Although the Veteran stated that he “tried everything,” he specifically identified cocaine in an October 2013 appointment. The Veteran’s involvement in these activities after service, as well as the fact that his hepatitis C was not diagnosed for more than two decades after the in-service sexual assault, would normally suggest that his hepatitis C is not related to service. However, the Board further notes that the Veteran was diagnosed with posttraumatic stress disorder (PTSD) in October 2013. In a December 2016 opinion, Dr. J.S. stated that the Veteran’s history of drug and alcohol abuse in the decade and a half following separation was an attempt to self-medicate in the aftermath of the May 1973 sexual assault. The Veteran was ultimately granted service connection for PTSD in a February 2017 rating decision, and is currently rated 70 percent disabled. In summary, the facts of the case present two possible ways in which the Veteran could have contracted hepatitis C. If the Veteran’s hepatitis C was transmitted during the May 1973 sexual assault, as he claims, this would result in a grant of direct service connection. However, it also appears likely that the Veteran was infected with hepatitis C from the illicit drug use he engaged in between 1976 and 1989. Even if this is the case, the evidence of record indicates that the Veteran’s illicit drug use was itself a consequence of his service-connected PTSD. As such, one could reasonably conclude that the Veteran’s hepatitis C is proximally related to a service-connected condition, which would result in a grant of secondary service connection. Therefore, although it would be impossible to determine exactly how the Veteran contracted hepatitis C, the Board concludes that the preponderance of the evidence still supports a nexus between the Veteran’s service and his current disability. Thus, the Veteran is entitled to service connection for his hepatitis C. 2. Hypertension The Veteran contends that his hypertension warrants an initial increased disability rating throughout the entire appeal period, which began on March 21, 2011, the date service connection was established. Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Hypertension is rated under 38 C.F.R. § 4.104, Diagnostic Code 7101. Under that diagnostic code, a 10 percent disability rating is warranted when diastolic pressure is predominantly 100 or more; or when systolic pressure is predominantly 160 or more; or for an individual with a history of diastolic pressure predominantly 100 or more who also requires continuous medication for control. The RO assigned the Veteran a noncompensable disability rating in the February 2013 rating decision, determining that his hypertension did not satisfy the requirements for a 10 percent disability rating under Diagnostic Code 7101. The Veteran, however, points out that he currently takes Losartan and Prazosin twice per day to control his hypertension. The Veteran also reports that, although he has been able to lower his blood pressure with diet, exercise, and medication, the condition has nonetheless worsened with age. See November 2014 Form 9. The Veteran’s blood pressure was recorded as 170/100 during a July 2013 appointment. Although all other blood pressure recordings taken during the appeal period have been within the noncompensable range, the Board notes that hypertension is a variable condition. As such, blood pressure readings taken during routine appointments a few times per year might not reflect the actual nature of the condition. Furthermore, the fact that the Veteran takes two medications daily to control his hypertension indicates that it is more severe than the readings contained in the claims file suggest. (CONTINUED ON NEXT PAGE) When the picture provided by the blood pressure readings is weighed against the Veteran’s statements and his demonstrable need for medication, the evidence of record is in equipoise. Therefore, affording the full benefit of the doubt to the Veteran, the Board concludes that his hypertension is manifested by diastolic pressure predominantly above 100, requiring continuous medication for control. Accordingly, the Veteran is entitled to a 10 percent disability rating under Diagnostic Code 7101 for the entire period on appeal. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD MJS, Associate Counsel