On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh,
Pennsylvania

THE ISSUE

Entitlement to service connection for Hepatitis C.

ATTORNEY FOR THE BOARD

Gina E. Fenice, Associate Counsel

INTRODUCTION

The veteran served on active duty from January 1970 to
September 1971.

This case comes before the Board of Veterans’ Appeals (Board)
on appeal of a July 2005 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Pittsburgh,
Pennsylvania.

REMAND

The veteran contends that he is entitled to service
connection for hepatitis C because he was diagnosed with
viral hepatitis in service and his hepatitis C is
attributable to his being vaccinated with an air gun in
service. Though the veteran has other risk factors for
hepatitis, including three tattoos in 1994, 1995, and 1996,
he does not believe his hepatitis stems from them because his
low viral rate and high fibrosis score indicate that he has
had the disease for a very long period of time.

Stop. First of all, the Veteran is “contending” this. He is not a doctor and is now making medical conclusions as to where he picked up HCV. Wrong. That is referred to as “lay testimony” and will be thrown out with tomorrow’s trash. He has a good case, but he is going about it all wrong.

The veteran’s service treatment records indicate that he was
diagnosed with viral hepatitis with jaundice and
mononucleosis in service. Subsequent medical records from
private physicians indicate a current diagnosis of hepatitis
C in June 2003. The record does not contain any medical
opinion with regard to whether the veteran’s current
diagnosis is related to his in-service diagnosis, or any
other event in-service, including vaccination using an
airgun.

Stop. The veteran lost this at the VARO level and it is on appeal here to the BVA. What’s missing is his nexus. He doesn’t have one. This is the “lipstick on a pig” moment. Without one he will get an exam, be run through the program, and end up losing again. VA is going to provide him with one because they are very helpful. I guess I don’t need to tell you what their nexus will say. 

In 2003, Dr. Brian Berk proposed that the veteran’s
symptomatology might be suggestive of chronic viral
hepatitis, but the opinion does not link the symptomatology
to service or provide any conclusive answer.

Stop. Remember, for a nexus to have validity, the doctor has to show a cause and effect with the disease to the Veteran’s time in service. Apparently, this doctor has simply stated that the Vet has chronic hep-period. So what? That and $4.50 will get you a really dynamite Latte at Starbucks. It doesn’t help to prove any correlation between hep now and hep in 1970.

VA’s duty to assist the veteran includes obtaining a thorough
and contemporaneous examination where necessary to reach a
decision on the claim. See 38 U.S.C.A. § 5103A (West 2002);
38 C.F.R. § 3.159 (2005). See also Snuffer v. Gober, 10 Vet.
App. 400 (1997). In light of the veteran’s service treatment
records supporting a diagnosis of viral hepatitis, and the
veteran’s current diagnosis of hepatitis C, the Board
believes that the veteran should be afforded another VA
examination to determine the etiology of the disease and
whether it is related to service. 

Here comes that VA nexus, ladies and gentlemen.

The Board also notes that in his VA Form 9, the veteran
stated that he had applied for disability benefits from the
Social Security Administration (SSA). Records in the
possession of the SSA could be supportive of the veteran’s
claim and should therefore be obtained.

Accordingly, this case is REMANDED to the RO or the Appeals
Management Center (AMC), in Washington, D.C., for the
following actions:

1. The RO or the AMC should undertake
appropriate development to obtain any
outstanding medical evidence pertinent to
the veteran’s claim.

2. If it is unsuccessful in obtaining any
pertinent evidence identified by the
appellant, it should so inform the
appellant and his representative and
request them to provide the outstanding
evidence.

3. The RO or the AMC should also obtain a
copy of any SSA disability determination
for the veteran and a copy of the record
upon which the determination was based.

4. Then, the veteran should be afforded a
VA examination by a physician with
appropriate expertise to determine the
etiology of the veteran’s hepatitis C.

The examiner must review the veteran’s
claims folders, and any indicated studies
should be performed.

Based upon the examination results and the
review of the claims folders, the examiner
should provide an opinion as to whether
there is a 50 percent or better
probability that the veteran’s hepatitis C
is related to any incident of his military
service. The rationale for the opinion
must also be expressed.

And, lo and behold. Here is the request for that same nexus to be proffered free of charge, courtesy of your local VAMC or QTC.

5. The RO or the AMC should also
undertake any other development it
determines to be warranted.

6. Then, the RO or the AMC should
readjudicate the veteran’s claim. If the
benefit sought on appeal is not granted to
the veteran’s satisfaction, he and his
representative should be provided a
supplemental statement of the case and an
appropriate period of time for response.
The case should then be returned to the
Board for further consideration, if
otherwise in order.

By this remand, the Board intimates no opinion as to any
final outcome warranted.

No action is required of the appellant until he is otherwise
notified but he has the right to submit additional evidence
and argument on the matter the Board has remanded. See
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. 2008).

_________________________________________________
Shane A. Durkin
Veterans Law Judge, Board of Veterans’ Appeals

Now, on the face of it, it would appear that the Vet is being accorded every legal avenue to defend himself. You might even come to the misguided conclusion that the VA is going to make all this right and get it straightened out for the poor man. A simple misunderstanding, right? He did have hep in service so it will all all get straightened out and the truth will be told. Not. This is what is going to happen right about now as I type this. He has had his exam and sure enough, he has hep c. As to where and when he got it is decided by the the VA Examiner. They have by now turned his life upside down and checked for any criminal records, SSA records, and any VAMC records. He will or already has received a polite denial saying “after careful review, the examiner has determined that it is not at least as likely as not that the veteran contracted this in service.” He probably has gone on to say that the viral hep in service was A or B, that it was acute rather than chronic, and therefore is not related to the hep the Vet currently suffers. And the Vet is free to appeal this decision back up to the BVA. The problem is that now there is a nexus on the record. If the vet is smart he will immediately go out and get not one, but two nexi to refute the VA, and some really good medical info to back up his theory. With any luck, the doctors never typed him for an HAA test in 1970. If that is the case, then he can say GROVES V. PEAKE and he will win. Remember, if they didn’t diagnose the hep in service then your hep C now could presumptively be the same hep you had then. I hope he does. If anyone in Pittsburgh recognizes this Veteran, tell him to contact us and we’ll tell him what he’s going to need.