Citation Nr: 1207290	
Decision Date: 02/27/12    Archive Date: 03/09/12

DOCKET NO.  07-15 432	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUES

1.  Entitlement to service connection for an acquired psychiatric disorder, claimed as bipolar disorder and posttraumatic stress disorder (PTSD). 

2.  Entitlement to service connection for residuals of a head injury. 

3.  Entitlement to service connection for hepatitis C. 


ATTORNEY FOR THE BOARD

J. Davitian, Counsel


INTRODUCTION

The Veteran served on active duty from November 1973 to September 1976. 

These matters come before the Board of Veterans' Appeals  (Board) on appeal of an October 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. 

When this case was previously before the Board in July 2010, it was remanded for additional development.  The issues are again before the Board for appellate consideration.

The issues of service connection for an acquired psychiatric disorder, claimed as bipolar disorder and PTSD, and service connection for residuals of a head injury, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

The competent clinical, and competent and credible lay, evidence of record demonstrates that it is at least as likely as not that the Veteran incurred hepatitis C during active duty.  


CONCLUSION OF LAW

Hepatitis C was incurred in active service.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.304 (2011).


REASONS AND BASES FOR FINDING AND CONCLUSION

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007).  In this case, the Board is granting 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 further discussed.  

Legal Analysis 

A veteran is entitled to service connection for a disability resulting from a disease or injury incurred or aggravated during active service.  See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection also is permissible for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).

If there is no evidence of a chronic condition during service, or during an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim.  See 38 C.F.R. § 3.303(b).  Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent.  See Savage v. Gober, 10 Vet. App. 488, 495-498 (1997).

In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's medical records, and all pertinent medical and lay evidence.  38 U.S.C.A. § 1154(a).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.  38 U.S.C.A. § 5107(b).

The Veteran contends that he now has hepatitis C as a result of air gun inoculations during active duty.  He is competent to report having undergone air gun inoculations during active duty.  He is competent to provide testimony and statements concerning factual matters of which he has firsthand knowledge.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005).  Further, under certain circumstances, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 

Post-service VA treatment records show post-service use of cocaine, and a diagnosis of hepatitis C in 2002.  

A November 2010 VA medical opinion provides that the examiner reviewed the Veteran's claims file and CPRS.  The examiner recounted that the Veteran tested positive for hepatitis C in 2001.  The Veteran had a history of polysubstance abuse from age 18 to 42, including cocaine and heroin.  His most current HCV RNA (PCR) was 3470000.  The examiner stated that it was his opinion that the Veteran's hepatitis C was not caused by or related to military service.  The examiner explained that the Veteran's history of substance abuse as noted in records was consistent with the risk for development of hepatitis C.  It was opined that air gun inoculations were an extremely unlikely cause for introduction of the hepatitis C, and were that the case, there would be a documented pattern of multiple cases resulting from the date of the inoculations (batch production verification).  He stated that exposure to hepatitis C and/or other viral infections was very high and very likely in individuals with exposure to substance abuse using heroin/cocaine/or other intravenous drugs.  

The Board finds that this medical opinion lacks probative value.  The opinion is based on the fact that the examiner believes that the Veteran's post-service drug use could have caused his hepatitis C.  However, the law does not preclude service connection based on inservice events simply because post-service events could also have resulted in the claimed disability.  Moreover, the VA examiner failed to address the fact that in a June 2004 VA "Fast Letter" (Fast Letter 04-13, June 29, 2004), VA noted that the large majority of hepatitis C infections can be accounted for by known modes of transmission, primarily transfusion of blood products before 1992, and injection drug use.  However, VA also noted that transmission of hepatitis C virus with air gun injections was "biologically plausible," notwithstanding the lack of any scientific evidence so documenting.  

The Board further notes that in Alemany v. Brown, 9 Vet. App. 518 (1996), the United States Court of Appeals for Veterans Claims (Court) stated that in light of the benefit of the doubt provisions of 38 U.S.C.A. § 5107(b), an accurate determination of etiology is not a condition precedent to granting service connection; nor is "definite etiology" or "obvious etiology."  Further, in Gilbert v. Derwinski, 1 Vet. App. 49 (1990), the Court stated that a veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail.  The Court specifically stated that entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence.  Under the benefit of the doubt doctrine established by Congress, when the evidence is in relative equipoise, the law dictates that the appellant prevails.  See also 38 C.F.R. § 3.102. 

In view of the foregoing, the Board finds that the record reflects that it is at least as likely as not that the Veteran's hepatitis C is etiologically related to his active service.  Resolving reasonable doubt in favor of the Veteran, the Board concludes service connection is warranted for his hepatitis C.

ORDER

Service connection for hepatitis C is granted.


REMAND

A preliminary review of the record indicates that the Veteran's claims for service connection for an acquired psychiatric disorder and service connection for residuals of a head injury require additional development.  

In the July 2010 remand, the Board requested that VA conduct examinations for these claims.  

An August 2010 VA Compensation and Pension Exam Request provides two different addresses for the Veteran, and points out that the address provided by VBA differed from the address in VHA's database.  A Compensation and Pension Exam Inquiry (Inquiry) printed in November 2010 indicates that the Veteran failed to report for two August 2010 VA examinations for his service connection claims.  

A review of the claims file reveals that correspondence (including the Board's July 2010 remand) has been sent to the address in VBA's records since July 2010.  None of this correspondence has been returned as undeliverable, and thus the VBA address appears correct.  It is unclear to which address, if either, notice of the August 2010 VA examinations was sent.  

In light of the Veteran's absence at the August 2010 VA examinations, and the uncertainty as to whether he received proper notice of them, the Board will remand these claims so that VA examinations may be rescheduled, and the Veteran properly notified of them at his current address.  In this regard, the Board points out that a remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand orders.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  It imposes upon VA a concomitant duty to ensure compliance with the terms of the remand.  Thus, in the present case additional development must be conducted. 

The Veteran is advised that individuals for whom examinations have been authorized and scheduled are required to report for such examinations.  38 C.F.R. § 3.326(a) (2011).  Further, the provisions of 38 C.F.R. § 3.655(a) (2011) provide that when entitlement to a benefit cannot be established or confirmed without a current VA examination and a claimant, without "good cause," fails to report for such examination, action shall be taken.  When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record.  38 C.F.R. § 3.655(b). 

Accordingly, the case is REMANDED for the following action:

1.  Using the address to which VA sent a copy of the Board's July 2010 remand, unless verification is obtained of a more current address, schedule the Veteran for an examination with an appropriate medical professional for the purpose of determining the nature and etiology of all current psychiatric disorders.  Documentation of the examination notification sent to the appellant, to include the address to which it was issued, must be included in the claims folder.  The Veteran's VA claims folder, including a copy of this remand, must be made available to the examiner.  The examiner should either diagnose PTSD, or rule it out as a diagnosis.  All diagnostic testing deemed to be necessary by the examiner should be accomplished.  If the examiner determines that the Veteran suffers from a psychiatric disorder, the examiner should state whether it is at least as likely as not (e.g. a 50/50 probability) that the Veteran's disability is related to his military service.  If PTSD is diagnosed, the examiner must identify the stressor(s) which serve as the basis for the PTSD diagnosis.  A report of the examination should be prepared and associated with the Veteran's VA claims folder. 

2.  Using the address to which VA sent a copy of the Board's July 2010 remand, unless verification is obtained of a more current address, schedule the Veteran for an examination with an appropriate medical professional for the purpose of determining the nature and etiology of all current residuals of a head injury.  Documentation of the examination notification sent to the appellant, to include the address to which it was issued, must be included in the claims folder.  The Veteran's VA claims folder, including a copy of this remand, must be made available to the examiner. 

The examiner should provide an opinion, with supporting rationale, as to whether or not the Veteran has residuals of a head injury, to include whether such complaints are symptoms of the Veteran's claimed acquired psychiatric disorders.  If a separate disability exists, the examiner should comment on whether such a disability is at least as likely as not (e.g. a 50/50 probability) the result of the Veteran's military service to include his alleged 1974 car accident.  A report of the examination should be prepared and associated with the Veteran's VA claims folder

3.  Then, readjudicate the Veteran's claims.  If either benefit sought on appeal remains denied, the appellant and his representative should be provided a supplemental statement of the case and afforded an opportunity to respond.  The case should be returned to the Board for appellate review.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court 

of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).



______________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs