Citation Nr: 21028118 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 09-42 326 DATE: May 10, 2021 REMANDED Entitlement to service connection for hepatitis C for accrued benefits purposes is remanded. Entitlement to service connection for the cause of the Veteran's death is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1972 to March 1992. He passed away in December 2007 and the appellant is his surviving spouse. This case comes on appeal of a May 2008 rating decision. This case has a lengthy procedural history and has been before the Board on multiple occasions. Most recently, the Board remanded the claims to obtain an expert medical opinion, pursuant to 38 U.S.C. § 5109; 38 C.F.R. § 3.328, given the complicated nature of the medical questions at hand. Unfortunately, although the medical opinion obtained by VA did clarify some of those questions, it did not fully address the Veteran's record in a way that satisfies the legal requirements necessary to make a decision on these matters. Accordingly, an additional remand is necessary to resolve those questions. The two issues on appeal are effectively intertwined. The appellant has filed a claim of dependency and indemnity compensation (DIC) based on service connection for the cause of the Veteran's death. The Veteran's death certificate shows that the primary cause of the Veteran's death was cirrhosis of the liver. However, competent evidence from the Veteran's physicians demonstrates that a significant contributing factor to cirrhosis was hepatitis C. Thus, service connection for the cause of death hinges on whether service connection is warranted for hepatitis C. The record shows that the Veteran was first given a diagnosis of hepatitis C following a liver biopsy in 1994. Throughout the Veteran's post-service medical treatment records, the Veteran frequently reported that he had been diagnosed with hepatitis C in February 1988 when he attempted to donate blood. However, a blood test from that time shows that the Veteran's blood tested positive for hepatitis A antibody, hepatitis B core antibody, and hepatitis B surface antibody. It does not show evidence of a positive hepatitis C test. Prior to his death, the Veteran submitted written testimony alleging that hepatitis B developed into hepatitis C, however, there is no medical basis for that assertion. It is unclear, however, when exactly the Veteran contracted the hepatitis C virus. In August 2010, the Veteran's private physician, Dr. P.Y.K., opined that it is likely the Veteran had the disease for a few years, but noted that this cannot be estimated with any precision. The Veteran and the appellant have theorized that the Veteran contracted hepatitis C secondary to a blood transfusion after a July 1972 car accident. After numerous remands, VA obtained the hospital records from this time. The Veteran was treated for multiple contusions, abrasions, and a laceration above his lip. The primary method of treatment was debridement and suture. There is no evidence of blood transfusion in those records. Indeed, the Veteran was treated by a plastic surgeon at the time; a July 24, 1972, postoperative report form shows the "Units of Whole Blood Transferred" section left blank. In obtaining an expert medical opinion in its most recent remand, the Board specifically asked the examiner to address the July 1972 hospitalization. In a December 2020 report, the reviewing examiner, Dr. J.G., found no evidence that would indicate that the Veteran received a blood transfusion at that time. Thus, the theory that the Veteran contracted hepatitis C as a result of a blood transfusion in 1972 is not supported by the record. In addition to Dr. J.G.'s December 2020 medical opinion, VA also obtained a medical advisory opinion from Dr. R.C.H. in August 2013. Both Dr. J.G. and Dr. R.C.H. promoted the theory that the Veteran's hepatitis C existed prior to service. In the course of post-service medical treatment, the Veteran had noted a history of intravenous drug use from approximately 1968 to 1975, which primarily pre-dated service. Dr. R.C.H. noted that intravenous drug use was the most common method of transmittal of hepatitis C. Therefore, Dr. R.C.H. opined that this made it more likely than not that the Veteran's hepatitis C resulted from pre-service drug use. Notably, the Veteran is presumed sound with regard to any disabilities not noted upon entry to service. To rebut this presumption of soundness, there must be clear and unmistakable evidence that the disability existed prior to service and was not aggravated by service. To say that something is "clear and unmistakable" is akin to saying that it is "undebatable." Therefore Dr. R.C.H.'s opinion did not meet the correct burden of proof to rebut the presumption. Because of this, in its December 2020 remand, the Board requested the opinion that was ultimately provided by Dr. J.G. Dr. J.G. did opine that it was clear and unmistakable that the Veteran's hepatitis C existed prior to service. However, by way of rationale, Dr. J.G. stated, "The likelihood is greatest that the...Veteran's Hepatitis C virus transmission occurred from intravenous drug use prior to the military service. There is no evidence from the available record that the Veteran had any high risk exposure during his military service; specifically, there is no evidence that he received a blood transfusion in 1972 following a motor vehicle accident and does not have any other reports of injury exposure to blood or bodily fluid, or other high risk exposure during his service." The Board notes, however, that this assertion is not necessarily accurate. Service treatment records show that the Veteran had positive Gram-negative intracellular diplococci (GNID) smears, indicative of gonorrhea, in July 1973, July 1974, December 1974, May 1975, September 1975, April 1976, November 1976, and December 1976. In a periodic examination in December 1979, the Veteran checked "yes" on a report of medical history when asked whether he had a history of venereal disease. Thus, there is evidence that the Veteran may have engaged in risky sexual behavior that led to his being exposed to bodily fluids during his active duty service. The Board does not have the medical expertise to state competently that this evidence is sufficient to disturb Dr. J.G.'s finding that the Veteran's hepatitis C clearly and unmistakably pre-existed service. However, as the rationale for Dr. J.G.'s opinion is not based on accurate information, the opinion is not adequate. Accordingly, on remand, an addendum opinion should be obtained. The examining provider should address whether the Veteran's hepatitis C clearly and unmistakably pre-dated service in light of this additional evidence. The matters are REMANDED for the following action: 1. Obtain a medical opinion from an appropriately qualified provider to evaluate the Veteran's claim. The provider should review the entire claims file, to include a copy of this Remand, and the opinion should include discussion of the Veteran's documented history and his and the appellant's assertions. Based on a review of the record, the provider should answer the following questions: (a) Does the evidence of record clearly and unmistakably show (i.e., is it undebatable) that the Veteran had hepatitis C that existed prior to his entry onto active duty? (b) If the answer to (a) is yes, does the evidence of record clearly and unmistakably show that the pre-existing hepatitis C was not aggravated by service or that any increase in disability was due to the natural progression of the disease? (c) If the answer to either (a) or (b) is "no," then assume as true that the Veteran entered active duty without a pre-existing hepatitis C disability. With that in mind, is it at least as likely as not (i.e., a 50 percent probability or greater) that such disability had onset in, or is otherwise related to service? In answering these questions, the provider should specifically address whether the Veteran's multiple positive GNID smears during service demonstrate the type of risky exposure to bodily fluids that would render it debatable that hepatitis C was contracted prior to service. The provider should offer a clear explanation for their answer. The provider should set forth the opinion, along with complete rationale for all conclusions reached, in a printed report. Complete rationale should include an explanation of the evidence used in support of the conclusion, as well as an explanation as to why such evidence supports the conclusion. (Continued on the next page) 2. Once the above development has been achieved, as well as any other development deemed necessary thereafter, readjudicate the appeal. If any benefits sought remain denied, issue a supplemental statement of the case. Jenna Brant Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Giaquinto, 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.