Citation Nr: 18129258 Decision Date: 08/24/18 Archive Date: 08/24/18 DOCKET NO. 15-32 157 DATE: August 24, 2018 REMANDED Entitlement to service connection for Hepatitis C is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Army from January 1977 to December 1979. 1. The Veteran’s claim for entitlement to service connection for Hepatitis C is remanded. In March 2013, the Veteran submitted his VA Form 21-526b. Therein, the Veteran initiated his entitlement claim for service connection for Hepatitis C. Generally, direct service connection will be granted if the evidence demonstrates that a current disability resulted from a disease incurred in or aggravated by active military service. 38 U.S.C. §1110; 38 C.F.R. §3.303 (a). To grant the Veteran’s appeal, the Board must identify three requisite claim elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. §3.303 (a). The VA is responsible for determining whether the evidence supports the claim or is in relative equipoise (with the Veteran prevailing in either event) or whether a preponderance of the evidence is against the claim (in which case the claim is denied). Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. §5107 (b). The Board observes that, in February 2016, the Veteran’s service treatment records (STRs) were associated with his electronic claims file. Therein, in December 1976, the Veteran’s treatment notations included a pre-service medical history for Hepatitis. Since the Veteran’s Hepatitis disorder clearly and unmistakably pre-dates military service, the Board will, for the current analysis, forgo the second and third requisite service-connection elements identified above. Instead, the Board must determine whether the Veteran’s Hepatitis C was aggravated beyond its normal course by active duty Army service. Every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111 (West 2014). To rebut the presumption of soundness at service entry, there must be clear and unmistakable evidence showing that the disorder preexisted service and there must be clear and unmistakable evidence that the disorder was not aggravated by service. The Veteran is not required to show that the disease or injury increased in severity during service before VA’s duty under the second prong of this rebuttal standard attaches. VAOPGPREC 3-2003 (July 16, 2003); Jordan v. Principi, 17 Vet. App. 261 (2003); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Where a preexisting disease or injury is noted on the entrance examination, section 1153 provides that, “(a) preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.” 38 U.S.C. § 1153 (West 2014); 38 C.F.R. § 3.306 (a). For Veterans who served during a period of war or after December 31, 1946, clear and unmistakable evidence is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service, and clear and unmistakable evidence includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. 38 C.F.R. § 3.306 (b). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered “aggravation in service” unless the underlying condition itself, as contrasted with mere symptoms, has worsened. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). In January 2014, the Veteran underwent a VA examination to consider the nature and severity of his Hepatitis C. In the resultant report, the VA provider observed that the Veteran was diagnosed with viral Hepatitis in 1974, which is three years prior to his active duty Army service. During the VA examination, the Veteran reported that, in 1998, he began treatment for chronic Hepatitis C, but he failed interferon and ribavirin treatment. The Veteran also reported that his daily symptoms include fatigue. In her addendum, the VA provider opined that, “(t)he claimed condition, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury or illness.” In her supporting rationale, the VA provider observed that, “(t)here is no documented evidence of treatment or ongoing treatment for Hepatitis C in the service treatment records. There is no documented evidence of a chronic Hepatitis condition at the time of separation from service on 12/21/1979. Veteran was seen on November 25, 1998 for treatment of his hepatitis several years after leaving service. He underwent a liver biopsy which revealed grade 1 inflammation and grade 0 fibrosis of the liver. Veteran entered a clinical trial in 2012 with Dr. Prockros and started Peg Interferon and Ribavarin treatment. There is no documented evidence in the Veteran's service treatment records of the Veteran's Viral Hepatitis which was diagnosis in 1974 aggravated by his military service between the dates of December 7, 1976 through December 21,1979. Veteran did not initiate treatment for chronic Hepatitis C until December 21, 1998 which is several years after leaving service.” In August 2014, VA received correspondence from the Medical University of South Carolina. Therein, Dr. IRW revealed that, “I have seen (the Veteran) for several years and he currently has HCV induced cirrhosis of the liver.” Dr. IRW continued with, “HCV can take many years to progress from mild disease to cirrhosis and some studies suggest 20 years or more. Without testing, which was not available during the period that (the Veteran) served in the Military, it is difficult to know with certainty when someone was exposed to HCV.” To finish, Dr. IRW opined that, “(h)is timeframe for progression to cirrhosis could be consistent with exposure during a time that he served in the Military.” The Board notes that Dr. IRW erroneously premised his opinion on an in-service incurrence of Hepatitis C. As noted above, the Veteran clearly and unmistakably had Hepatitis C prior to joining the Army in 1977. However, the correspondence from Dr. HCV highlights why the January 2014 VA examination and addendum are inadequate for this Board analysis. The VA’s duty to assist also includes providing a medical examination and/or obtaining a medical opinion when necessary to make a decision on the claim, as defined by law. See 38 U.S.C. § 5103A; 38 C.F.R. §§ 3.159 (c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The VA examination and/or opinion must be adequate to decide the claim. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As the Board revealed above, the Veteran is not required to show that his Hepatitis C disorder increased in severity during service before attachment of VA’s duty to clearly and unmistakably show that his Hepatitis C was not aggravated by active duty service. VAOPGPREC 3-2003 (July 16, 2003); Jordan, 17 Vet. App. 261; Wagner, 370 F.3d 1089. The January 2014 examination and addendum are not adequate for this Board analysis because the VA provider did not clearly and unmistakably determine that the Veteran’s current liver cirrhosis was not the result of in-service aggravation of the Veteran’s Hepatitis C beyond the natural process of the disease. Consequently, the matter is REMANDED to the Agency of Original Jurisdiction (AOJ) for the following action: 1. The AOJ should contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who may possess additional evidence relevant to his claim. The AOJ should attempt to obtain copies of pertinent treatment records identified by the Veteran that have not been previously secured and associate them with the claims folder. 2. After paragraph 1 is complete, to include affording the Veteran an appropriate amount of time to respond to the AOJ's request, the AOJ should schedule the Veteran for a VA examination in connection with his claim of service connection for Hepatitis C. The claims folder, and a copy of this remand, must be forwarded to and reviewed by the examiner prior to him/her providing the requested opinions. Upon examination of the Veteran, and review of the available evidence, the provider should address the following: a) Can it be concluded with clear and unmistakable (undebatable) certainty that the Veteran’s pre-existing Hepatitis C disorder DID NOT undergo a worsening in active duty Army service, to a permanent degree beyond that which would be due to the natural progression of the disease? b) Can it be clearly and unmistakably determined that the Veteran’s liver cirrhosis was not the result of in-service aggravation of the Veteran’s pre-service Hepatitis C beyond the natural process of the disease? Any opinion must be supported by a detailed rationale, which includes reference to lay or medical evidence contained in the claims folder, if appropriate, or to known medical principles relied upon in forming the opinion. If the examiner determines that he/she cannot provide an opinion on the issue at hand without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, the examiner should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. See Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD RLBJ, Associate Counsel