Citation Nr: 21028101 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 16-31 147 DATE: May 10, 2021 ORDER Entitlement to service connection for lymphocytosis secondary to hepatitis C, on a causation basis, is granted. Entitlement to service connection for fibromyalgia secondary to hepatitis C, on a causation basis, is granted. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran's lymphocytosis was caused by his service connected hepatitis C. 2. The evidence is at least evenly balanced as to whether the Veteran's fibromyalgia was caused by his service connected hepatitis C. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for lymphocytosis secondary to service connected hepatitis C, on a causation basis, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. 2. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for fibromyalgia secondary to service connected hepatitis C, on a causation basis, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1974 to January 1977. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas which denied service connection for, among one other thing, diabetes mellitus (DMII), lymphocytosis, cholelithiasis (gallstone disease), and denied reopening a claim of service connection for fibromyalgia. In August 2013, the Veteran filed his notice of disagreement, and in June 2016 was issued a statement of the case and perfected his appeal to the Board. In November 2018, the Board, inter alia, reopened and remanded the Veteran's claim for service connection for fibromyalgia, and remanded the Veteran's claims for service connection for DMII, gallstone disease, and lymphocytosis, to include secondary to hepatitis B and C, for new medical opinions. In November 2019, the RO granted service connection for cholecystectomy secondary to cirrhosis of the liver, evaluating it as 10 percent disabling, and in July 2020 granted service connection for DMII secondary to cirrhosis of the liver, evaluating it as 20 percent disabling. Thus, these issues are no longer before the Board. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection). Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is also warranted for disability proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (b). Lymphocytosis and Fibromyalgia September 2009 treatment records reflect that the Veteran's physician suspected that the Veteran's lymphocytosis was on the basis of his viral hepatitis, but could not rule out a T-cell lymphoproliferative disorder though one seemed unlikely. In an April 2010 letter, the Veteran's physician opined that the Veteran's lymphocytosis was secondary to his hepatitis. In a September 2010 letter, the Veteran's physician reported that he has been treating the Veteran for fibromyalgia, and stated that the Veteran's hepatitis C history has more than likely contributed to his joint pain and fibromyalgia. He also noted that the Veteran has significant fatigue due to a combination of fibromyalgia, hepatitis, insomnia, and depression. In an October 2010 VA examination report, the examining nurse practitioner (NP) opined that the Veteran's lymphocytosis is not caused by, or a result of his service connected hepatitis B or C, stating that according to the VA pathologist, his lymphocytosis represents a new onset of malignant lymphoma which is not associated with his hepatitis B or C. In a February 2011 letter, the Veteran's physician repeated that the Veteran's hepatitis C history more than likely contributed to his joint pain and fibromyalgia, noting that based on the evidence from medical literature, patients with chronic hepatitis C can have generalized musculoskeletal pain similar to fibromyalgia. In an August 2012 VA examination report, the examining physician opined that the Veteran's fibromyalgia, diagnosed in January 2009, was less likely than not (less than a 50 percent probability) proximately due to, or the result of, the Veteran's service connected hepatitis B or C. The physician reported that review of current literature suggests that there is inadequate or insufficient evidence to determine a causative association between fibromyalgia and hepatitis B or C, and it is therefore more likely a new and separate condition, and less than likely related to or caused by hepatitis B or C. October 2012 medical treatment records reflect that the Veteran has been treated for lymphocytosis, has a history of hepatitis C, and that it is thought this is possibly reactive lymphocytosis. The Veteran submitted additional treatise material which suggested that it is common for hepatitis C patients to have related rheumatic diseases affecting the muscles, joints, and connective tissue; and indicate that there is a possibility that hepatitis C infection may be one of fibromyalgia syndrome's triggers. In an October 2012 letter, the Veteran's physician stated that patients with chronic hepatitis C can have generalized musculoskeletal pain similar to fibromyalgia, and opined that the Veteran's hepatitis C history more than likely contributed to his joint pain and fibromyalgia. In a March 2014 letter, the Veteran's physician opined that the Veteran's experience with hepatitis C infection and treatment more than likely initiated his chronic pain which fulfills classification criteria for fibromyalgia. In an October 2016 examination report, the physician opined that the Veteran's fibromyalgia was not at least as likely as not (at least a 50 percent probability) aggravated beyond its natural progression by hepatitis B or C. The physician referenced the January 2012 VA examination report, and private physician letters, and stated that the treatment with medication does not support aggravation beyond normal progression, including by his hepatitis B or C. In a December 2016 addendum opinion, the Veteran's NP stated that the Veteran's lymphocytosis was less likely than not (less than a 50 percent probability) proximately due to or the result of the Veteran's hepatitis B or C as lymphocytosis is a false positive lab result, not a disease or diagnosis. She stated that the Veteran's lymphocytosis has remained stable since 2002 and was not affected by his hepatitis C treatment, and neither increased nor decreased after treatment. The NP also noted that the Veteran was never diagnosed with hepatitis B. A September 2019 disability benefits questionnaire (DBQ) reflects that the Veteran's examining physician documented lymphocytosis and monocytosis. The physician opined that the Veteran's lymphocytosis was less likely than not (less than a 50 percent probability) proximately due to, the result of, or aggravated by the Veteran's hepatitis B or C, or cirrhosis. He stated that neither the lymphocytosis nor monocytosis are of clinical significance as hepatitis C, when active as well as hepatitis B can cause acute lymphocytosis during active hepatitis infection, but neither are known to cause chronic lymphocytosis after the resolution of the hepatitis infection, nor is the treatment of hepatitis C known to cause chronic lymphocytosis. He also stated that the hepatitis B was an antibody demonstrating that the Veteran had been exposed to hepatitis B, not a chronic infection. In a September 2019 DBQ, the examining physician noted a diagnosis of fibromyalgia which had its onset in 2009. The physician opined that the Veteran's fibromyalgia was less likely than not (less than a 50 percent probability) proximately due to, the result of, or aggravated by his hepatitis B or C. The physician reported that hepatitis C when active can cause symptoms similar to fibromyalgia when active, but is not known to cause fibromyalgia, nor is the treatment of hepatitis C known to cause fibromyalgia. He also stated that the "hepatitis B" was an antibody demonstrating that the Veteran had been exposed to hepatitis B, nonetheless hepatitis B is not known to cause fibromyalgia. The September 2019 physician also noted that neither hepatitis B or C are known to cause chronic aggravation of fibromyalgia, cholelithiasis, monocytosis, or lymphocytosis. In a July 2020 DBQ, the NP opined that the Veteran's fibromyalgia was less likely than not (less than a 50 percent probability) incurred in or caused by an in-service injury, event, or illness. The NP noted a 32 year gap between service and the Veteran's diagnosis of fibromyalgia with no evidence indicating he had it in service. The NP also opined that the Veteran's fibromyalgia was not at least as likely as not (at least a 50 percent probability) aggravated beyond its natural progression by a service connected disability, stating medical literature does not support fibromyalgia being caused or aggravated by hepatitis B or C. For the following reasons, the Board finds that entitlement to service connection for fibromyalgia and lymphocytosis is warranted. While the NP and September 2019 physician opined that the Veteran's lymphocytosis was not at least as likely as not caused or aggravated by his hepatitis B or C, the physician also noted that hepatitis C when active can cause acute lymphocytosis during active hepatitis infection. The October 2012 medical records reflect treatment for hepatitis C, and the Veteran's treating medical professionals reported in the medical treatment records that the Veteran's lymphocytosis is possibly reactive to his hepatitis C. The April 2010 private physician also opined that the Veteran's lymphocytosis was secondary to his hepatitis C. While the private physician's rationale was not extensive, reading his opinion as a whole and in the context of the evidence of record, he found that the nature of the Veteran's service connected hepatitis C made it likely that it had resulted in his lymphocytosis. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). Therefore, the private physician's opinion, coupled with that of the October 2012 treating medical professional and the previously mentioned September 2019 physician's statement, must be afforded significant probative value. As for the Veteran's fibromyalgia, the August 2012 physician opined that the Veteran's fibromyalgia was less likely than not (less than a 50 percent probability) due to or the result of the Veteran's hepatitis C, noting a lack of medical literature suggesting an association between the 2, and the October 2016 and September 2019 physicians stated that hepatitis C is not known to cause fibromyalgia, and that its treatment does not support aggravation of fibromyalgia beyond its natural progression. Alternatively, the Veteran's private physicians in February 2011, October 2012, and March 2014 letters opined that the Veteran's chronic pain and symptomatology associated with fibromyalgia were more than likely contributed to, or initiated by his hepatitis C. Again, while the opinions were not extensive, reading the opinions within the context of the evidence of record, the private physicians found the nature of the Veteran's hepatitis C made it likely that it had resulted in his fibromyalgia symptomatology, thus the opinions are afforded significant probative weight. Additionally, the Veteran submitted treatise information which indicated hepatitis C may be a possible trigger for fibromyalgia symptoms. Medical article and treatise evidence "can provide important support when combined with an opinion of a medical professional." Sacks v. West, 11 Vet. App. 314, 317 (1998). There are both positive and negative medical nexus opinions of record which are afforded significant probative weight. The evidence is thus at least evenly balanced as to whether the Veteran's lymphocytosis and fibromyalgia were caused by his service connected hepatitis C. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for both lymphocytosis and fibromyalgia, secondary to service connected hepatitis C on a causation basis, is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Maddox, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.