Veterans Medical Advisor

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                         Case from Bureau of Veterans Appeals

Dr. Bash is a veteran of


Citation Nr: 0731743

Decision Date: 10/09/07 | Archive Date: 10/23/07

DOCKET NO. 04-43 070

On appeal from the Department of Veterans Affairs (VA) Regional Office in Des Moines, Iowa

THE ISSUE

Entitlement to service connection for hepatitis C.

REPRESENTATION

Veteran represented by: Vietnam Veterans of America

WITNESSES AT HEARING ON APPEAL

The veteran and his wife

ATTORNEY FOR THE BOARD

Christopher Maynard, Counsel

INTRODUCTION

The veteran had active service from January 1970 to October 1971.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2003 decision by the RO which denied service connection for hepatitis C. A video conference hearing before the undersigned member of the Board was held in May 2006.

FINDING OF FACT

1. All evidence necessary for adjudication of this claim have been obtained by VA.

2. It is at least as likely as not that the veteran's hepatitis C is related to service.

CONCLUSIONS OF LAW

The veteran's hepatitis C was incurred in service. 38 U.S.C.A. §§ 1101, 1110, 5100, 5102, 5103, 5103A, 5106, 5107 (West 2002 & Supp 2006); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2007).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

With respect to the veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.159, 3.326.

The United States Court of Appeals for Veterans Claims (hereinafter, "the Court") held that upon receipt of an application for service connection VA is required by law to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court held that such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id.

VA law and regulations also indicate that part of notifying a claimant of what is needed to substantiate a claim includes notification as to what information and evidence VA will seek to provide and what evidence the claimant is expected to provide. Further, VA must ask the claimant to provide any evidence in her or his possession that pertains to the claim. 38 U.S.C.A. § 5103 (West 2002 & Supp. 2006); 38 C.F.R. § 3.159(a)-(c) (2007); Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II).

Prior to initial adjudication of the veteran's claim, a letter dated in December 2002, fully satisfied the duty to notify provisions of VCAA. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The veteran was notified of the evidence that was needed to substantiate his claim and that VA would assist him in obtaining evidence, but that it was ultimately his responsibility to give VA any evidence pertaining to his claim and to submit any evidence in his possession to VA. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The veteran's service medical records and all VA and available private medical records identified by him have been obtained and associated with the claims file. The veteran was afforded a VA examination and testified at a video conference hearing before the undersigned member of the Board in May 2006. Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issue to be decided herein is available and not part of the claims file.

In summary, the veteran has been made aware of the information and evidence necessary to substantiate his claim and is familiar with the law and regulations pertaining to the claim. See Desbrow v. Principi, 17 Vet. App. 207 (2004); Valiao v. Principi, 17 Vet. App. 229, 232 (2003).

In light of the favorable decision herein, the Board finds that any VA deficiency in complying with VCAA is harmless error and that no useful purpose would be served by remanding the appeal to the RO. Cf. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 19 Vet. App. 103 (2005); rev'd on other grounds, 444 F.3d 1328 (Fed Cir. 2006); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). Accordingly, appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993).

Service Connection: In General

Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be demonstrated either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

Direct service connection requires a finding that there is a current disability that has a definite relationship with an injury or disease or some other manifestation of the disability during service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992).

A disorder may be service connected if the evidence of record, regardless of its date, shows that the veteran had a chronic disorder in service or during an applicable presumptive period, and that he still has such a disorder. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494- 95 (1997). Such evidence must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. Savage, 10 Vet. App. at 495. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b).

Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d).

Where a veteran served 90 days or more during a period of war or during peacetime service after December 31, 1946 and cirrhosis of the liver manifests to a degree of 10 percent or more within one year from date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007).

Hepatitis C

The veteran contends that his hepatitis C was most likely contracted in service at the time of his appendectomy surgery in Vietnam. At the video conference hearing in May 2006, the veteran testified that he had no other risk factors for contracting hepatitis C, i.e., has never been an intravenous drug user, does not have any tattoos, has never had a blood transfusion, and has been married to the same woman for over 30 years. It is argued that the fact that the veteran's surgical wound got infected suggested that there was some contamination present during the surgery. It is argued further, that the veteran could have been exposed the hepatitis C virus (HCV) from inoculations by jet air gun injections during service. In either case, the veteran believes that his hepatitis could only have been contracted in service.

The service medical records showed that the veteran underwent an appendectomy for acute appendicitis at the 85th Evacuation Hospital in Vietnam on November 27, 1970. The surgical site was reopened on December 1, due to an abscess formation and the wound was allowed to heal by granulation. The veteran was transferred to the USS Sanctuary on December 7, and the wound was irrigated and dressed daily, and healed without further complications. The veteran did not receive a blood transfusion, and was discharged to duty on December 30, 1970. The service medical records showed no further complaints, treatment, or abnormalities referable to the appendectomy site during service, nor were there any signs or symptoms referable to any liver problems in service. The veteran indicated that his health was good at the time of his separation examination in October 1971, and no pertinent abnormalities were noted on examination at that time.

The evidence of record shows that the veteran was seen for intermittent epigastric pain beginning in 1998. Initially, the veteran declined any invasive testing and was given a trial of Prevacid. When seen in February 2001, liver function tests were elevated, and the physician commented that he believed the veteran's alcohol was contributing to his liver disease. Laboratory studies in November 2001, were positive for hepatitis C. The examiner indicated the veteran's elevated liver function was most likely secondary to his heavy alcohol intake.

When examined by VA in October 2004, the examiner indicated that the claims file was reviewed and provided a detailed description of the veteran's medical history. He discussed the appendectomy surgery in service and noted that the veteran did not receive a blood transfusion, and that all laboratory studies for HCT were within normal limits. He also noted that the veteran had a history of alcohol abuse, and that he was first diagnosed with alcoholic hepatitis in November 2001. The diagnoses included hepatitis C with mildly elevated LFT's. The examiner opined that the veteran's hepatitis was less likely than not related to military service.

A VA medical opinion in August 2005, included a general discussion of the findings of various studies on the subject of risk factors for hepatitis C infection in veterans. The studies indicated that while the incidence of hepatitis C was higher in veterans, it had more to do with increased exposure to the traditional risk factors rather than to the military experience itself. The physician indicated that while there was a slight risk of transmission of blood borne infections (hepatitis B) with air gun administration of mass vaccinations, the studies did not show an association with HCV (hepatitis C virus). The physician concluded that the etiology of the veteran's hepatitis C was unknown, but opined that it was less likely as not (less than 50/50 probability), related to service.

Subsequent to the videoconference hearing in May 2006, the veteran submitted statements from four private doctors to the effect that they believed that the veteran's hepatitis was related to service. (The veteran waived RO consideration of the additional evidence.) Dr. W. Z. Mehal, stated that he believed the veteran acquired the hepatitis C virus infection during his appendectomy surgery in service because of the fact that his surgical wound became infected, and that this suggested that the standard level of surgical care including the use of sterile instruments was not met. Because the site of the infection was in the wound and not the pelvis, he believed that the infection was from a surgical instrument and not the infected appendix. Dr. Mehal noted that the veteran had no other high risk factors for HCV infection, and opined that it was very likely that his hepatitis C was related to the appendectomy surgery in service. Dr. Mehal indicated that he had reviewed some 150 pages of the veteran's medical records, including the reports from Dr. T Johnson (doctor who diagnosed and treated the veteran for hepatitis since 2001).

Dr. B. D. Cecil stated that he believed the veteran's hepatitis C should be service-connected because his only risk factor was military service, and that he could have been infected from either poor sterilization of instruments during the appendectomy, or with the jet gun injectors during inoculations, or by the electric razors used to cut his hair in service. Dr. Cecil indicated that he had reviewed the veteran's service medical records.

Dr. J. S. Galati, noted that the veteran reported no identifiable risk factors other than military service, and that published reports indicated that there were occasional inadvertent breakdowns in isolation/sterilization techniques during the time frame of the veteran's appendectomy in service that could have resulted in the transmission of blood borne pathogens, including hepatitis C. Other possible risk factors included multi-use "air gun" vaccinations. Dr. Galati indicated that he reviewed the veteran's 30-year span of medical records, including his service medical records.

Finally, an opinion from Dr. C. N. Bash was to the effect that the veteran's only risk factor for the HCV was military service and that he could have been infected from the surgery or the jet air gun inoculation injections in service. He concluded that the veteran's exposure to the hepatitis C virus "equally likely" came via the jet vaccine injectors, Southeast Asia environment, and the surgery in service. While Dr. Bash was not able to definitively state which of these three routes was the most likely route, he opined that it was very likely that the veteran's virus infection was obtained during service. Dr. Bash indicated that he reviewed all of the veteran's records.

The Board recognizes that while there is no objective evidence of HCV in service or until many years after discharge from service, the veteran's only reported risk factor for HCV infection was his appendectomy surgery in service. The records showed that the veteran developed an unexplained infection subsequent to the surgery, which a liver specialist has opined was at least as likely as not the source of his infection with HCV. While there are two unfavorable VA opinions to the effect that the veteran's hepatitis C was not related to service, neither examiner offered any persuasive rationale for their conclusions. In fact, the most recent opinion in August 2005, indicated that the etiology of the veteran's hepatitis C was unknown. Thus, the Board finds that the two VA opinions are of limited probative value.

In contrast, the favorable opinions, particularly that of the gastrointestinal specialist, Dr. M., provided a rational explanation for the cause and affect of the surgery procedure and subsequent infection in service, and offered a plausible explanation for the etiology of the veteran's current hepatitis C.

The evidence required to warrant a grant of disability benefits does not have to be conclusive. The question is whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

Given the medical complexity of the facts in this case, there is reasonable doubt as to the etiology and exact date of onset of the veteran's hepatitis C. As there is medical evidence of an unexplained infection from surgery in service and opinions relating the veteran's current hepatitis C to the event in service, the Board will resolve all reasonable doubt in favor of the veteran. Accordingly, service connection for hepatitis C is warranted.

ORDER

Service connection for hepatitis C is granted.




S. L. Kennedy

Veterans Law Judge, Board of Veterans' Appeals



Important Notice: Attached to this decision is a VA Form that provides information concerning your rights to appeal our decision. Due to recent changes in the law, some of the information contained in the attached notice of appellate rights form is no longer accurate concerning the ability to pay attorneys and agents to represent you. Some additional information follows that summarizes the current law. To the extent that the information contained in the attached VA Form conflicts with the summary below, please disregard the information on the VA Form and instead rely upon the following information:

Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See Veterans Benefits, Health Care, and Information Technology Act of 2006, Pub. L. No. 109-461, 120 Stat. 3403 (2006). If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision.

The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement.

VA is in the process of amending its regulations governing representation of claimants for veterans' benefits in order to implement the provisions of the new law. More information concerning the regulation changes and related matters can be obtained at http://www1.va.gov/OGC (click on "Accreditation and Recognition of Service Organizations").

Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code.

Filing of Fee Agreements: In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to the Secretary at the following address:

Office of the Chief Counsel for Policy (01C3)
Board of Veterans' Appeals
810 Vermont Avenue, NW,
Washington, DC 20420
Facsimile: (202) 565-5643


(When final regulations are published to implement the requirements of the new law, fee agreements must be filed with the VA Office of the General Counsel and not the Board.)



Department of Veterans Affairs

drbash@doctor.com

______________________

Craig N. Bash M.D., M.B.A.

Neuro-Radiologist and Associate Professor

Uniformed Services School of Medicine

NPI/UPIN-1225123318

4938 Hampden Lane
Bethesda, Md 20814

Cell/Text 240-506-1556
Fax 301-951-9106