I’m going to excise some dull reading here and leave the meat…
Citation Nr: 0607837
Decision Date: 03/17/06 Archive Date: 03/29/06
DOCKET NO. 00-01 467 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUES
1. Entitlement to service connection for residuals of
hepatitis A.
2. Entitlement to service connection for hepatitis C.
3. Entitlement to service connection for coronary artery
disease (claimed as heart condition), to include as secondary
to hepatitis C.
4. Entitlement to service connection for deep vein
thrombosis, to include as secondary to hepatitis C.
5. Entitlement to service connection for gastroesophageal
reflux disease (claimed as stomach condition), to include as
secondary to hepatitis C.
6. Entitlement to service connection for hemochromatosis
(also claimed as blood condition), to include as secondary to
hepatitis C.
7. Entitlement to service connection for depression (claimed
as mental condition), to include as secondary to hepatitis C.
8. Entitlement to service connection for sexual condition,
to include as secondary to hepatitis C.
REPRESENTATION
Appellant represented by: Theodore C. Jarvi, Attorney
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Nancy S. Kettelle, Counsel
INTRODUCTION
The veteran served on active duty from September 1975 to
March 1980.
This matter came to the Board of Veterans’ Appeals (Board) on
appeal from decisions of the Department of Veterans Affairs
(VA) Regional Office (RO) in Montgomery, Alabama, and the RO
in Phoenix, Arizona. The Board notes that in correspondence
dated in January 2006, the veteran’s attorney provided notice
that the veteran has moved to Missouri, and for that reason,
the Board has identified the RO in St. Louis, Missouri, on
the title page.
In January 2002, the veteran testified from the Montgomery RO
at a video conference hearing before a Veterans Law Judge who
is no longer at the Board. In a decision dated in February
2003, that judge denied service connection for residuals of
hepatitis A and also denied service connection for hepatitis
C. The veteran appealed to the United States Court of
Appeals for Veterans Claims (Court). In an order dated in
August 2003, the Court remanded the case to the Board having
vacated the February 2003 Board decision pursuant to the
decision of the United States Court of Appeals for the
Federal Circuit (Federal Circuit) in Disabled Am. Veterans v.
Sec’y of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003).
In that decision, the Federal Circuit invalidated 38 C.F.R.
§ 19.9(a)(2), which had given the Board authority to
undertake case development and consider additional evidence
without having to remand the agency of original jurisdiction
for initial consideration and without having to obtain the
appellant’s waiver.
Subsequent to the remand from the Court, the Board, in
February 2004, remanded the case to the Montgomery RO for its
initial consideration of evidence developed by the Board and
for consideration of additional evidence submitted by the
veteran without waiver of that referral.
While the case was at the Court, the veteran filed claims for
additional disabilities, all of which he contends are
secondary to hepatitis C. The Phoenix RO denied those
claims, the veteran filed a notice of disagreement, the RO
issued a statement of the case, and the veteran filed a
timely substantive appeal, which the RO received in late
August 2005. On his VA Form 9, the veteran requested a Board
hearing at the RO, and at the same time the veteran submitted
additional evidence concerning the etiology of his hepatitis.
The Phoenix RO returned the case to the Board in mid-
September 2005. In a letter received at the Board in October
2005, the veteran’s attorney waived RO consideration of the
evidence submitted in August 2005.
In a letter to the veteran dated in December 2005, the Board
advised him that the Veterans Law Judge who conducted the
January 2002 hearing is no longer employed by the Board and
informed him that he has the right to another Board hearing.
In January 2006, the veteran’s attorney notified the Board
that the veteran does not want an additional hearing and
requested that the Board issue its decision.
The issues of entitlement to service connection for coronary
artery disease (claimed as heart condition), deep vein
thrombosis, gastroesophageal reflux disease (claimed as
stomach condition), hemochromatosis (also claimed as blood
condition), depression (claimed as mental condition), and a
sexual condition, all claimed as secondary to hepatitis C,
are addressed in the REMAND portion of the decision below and
are REMANDED to the St. Louis RO via the Appeals Management
Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. The evidence does not demonstrate the presence of
disability residual to any in-service hepatitis A.
2. The weight of the competent evidence supports the finding
that the veteran’s current hepatitis C was initially manifest
with symptoms of hepatic irritation in service.
CONCLUSIONS OF LAW
1. Service connection for hepatitis A is not warranted.
38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303
(2005).
2. Hepatitis C was incurred in active service. 38 U.S.C.A.
§§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2005).
—————————————————————-
Hold the phone. This always sucks . They tell you who won up front and spoil the movie. What I really want to show here is that this lawyer is a jock. He rides this claim all the way to the top, gets it remanded back down so they can work on the nexus, submits the new stuff and kicks ass and takes names. VA didn’t know what hit ’em. This guy’s positively stinky,dude! Quite possibly the BEST NEXUS ever written is coming up.
—————————————————————-
The RO most recently completed a supplemental statement of
the case addressing the claims decided here in July 2005 and
certified those claims to the Board in September 2005.
Evidence that the veteran submitted in August 2005 was not
considered by the RO, but in an October 2005 letter, the
veteran’s attorney, as permitted by 38 C.F.R. § 20.1304,
waived referral to the agency of original jurisdiction for
initial consideration and preparation of an additional
supplemental statement of the case. The Board will consider
that evidence in its adjudication of the claim. Neither the
veteran nor his representative has indicated that the veteran
has or knows of any additional information that pertains to
his service connection claims considered here.
—————————————————————-
See this? Attorney dude submits the last minute, red hot nexus after the VA has made their case and submitted all their nexus BS. He waives referral by the RO in favor of letting the VLJ make the call on the new nexus he has. RO doesn’t get to play the “I’ll see your nexus and raise you” game. VET’s attorney effectively has seen them and called. SO SMART.
—————————————————————-
Background
The issues on appeal are entitlement to service connection
for residuals of hepatitis A and entitlement to service
connection for hepatitis C. The veteran has argued that he
should simply be awarded service connection for hepatitis
because he had hepatitis in service and he believes that all
his present liver trouble is due to the hepatitis he
contracted in service.
Review of the veteran’s service medical records shows that he
was hospitalized in early March 1978 after having noticed the
onset of dark urine and general malaise. At the time, he was
on temporary duty at Nellis Air Force Base and was admitted
to the hospital for observation. Liver function studies
initially showed elevations of the alkaline phosphatase of
120, bilirubin 9.1, and SGOT (serum glutamic oxaloacetic
transaminase) 2,128. The urine showed a large amount of
bilirubin. After four days, the veteran was transferred to
the hospital at Luke Air Force Base where on examination the
liver edge was palpable, but not grossly enlarged. The liver
was slightly tender, and the veteran was noted to have
scleral icterus. Liver function tests drawn the following
day were essentially normal, with only mild elevation of the
SGPT (serum glutamate pyruvate transaminase). The veteran
was discharged to duty in mid-March 1978, and the final
diagnosis was hepatitis. Clinical Record Cover Sheets from
both hospitals listed the diagnosis as acute hepatitis.
Chronological records show that in August 1978, the veteran
was seen for follow up of hepatitis and reported that he now
felt well. He also reported that he had been experiencing
green urethral discharge and dysuria for the past two days
and gave a history of suspicious sexual contact a few days
earlier. After examination, the assessment was past
hepatitis, resolved, and urethritis, nonspecific.
Chronological records of medical care show that in early
November 1979 the veteran was seen with complaints of dark
urine and fatigue, and he gave a history of jaundice about a
year and a half earlier. He reported that his appetite was
good but that he had a three pound weight loss in the past
two weeks. The assessment after clinical examination was
uropathy, question of venereal disease, question of urinary
tract infection. Laboratory studies were ordered. On
follow-up three days later the veteran reported that he had
had loose stool and cramps the previous day, but his appetite
and digestion were good and his urine was not as dark. By
the sixth day, urinalysis was essentially negative, and the
veteran was clinically negative.
A laboratory report shows that the clinical physician
requested a study for the veteran’s SGOT reading in early
November 1979. The SGOT value was 320, and the laboratory
report shows that the normal value for men is from 0 to 26.
That result was noted in the chronological records in late
November 1979, and at that time, clinical examination
revealed no liver enlargement; there was slight tenderness in
the right upper quadrant with no guarding. The assessment
was elevated SGOT, clinically negative. The veteran was
given an appointment to return in about six weeks. Liver
function tests based on a blood sample taken in late November
1979 show the SGOT value was 17 at that time, while the SGPT
value was 61. The laboratory report shows 0 to 48 as the
normal range for SGPT for males.
In two record entries on the same date in late January 1980,
the physician who examined the veteran in November 1979,
reexamined him and stated there was no evidence of clinical
pathology due to drug or alcohol abuse. In both entries he
noted a history of hepatitis in November 1979. There were no
abnormalities on clinical examination. The physician ordered
laboratory studies including SGOT, but in a later undated
record entry noted there were no lab results in veteran’s
chart. A note on the report of the veteran’s separation
examination in late February 1980 states hepatitis in 1978
NCNS (no complications, no sequelae).
The veteran reports that while he was being seen by a new
doctor at a VA outpatient clinic in 1999, he mentioned that
while he was on temporary duty at Nellis Air Force Base, he
was exposed to and contracted acute hepatitis and there were
several other cases at the same time in the same area.
As has been reported by the veteran, VA outpatient records
dated in April 1999 show that laboratory tests were done;
tests referred to a private laboratory detected total
antibodies to hepatitis A; the VA test for hepatitis B was
negative; and multiple VA tests for hepatitis C were
positive. In clinical records, the VA physician noted that
the veteran said he was an intravenous drug user in
approximately the 1980s.
At a VA examination in July 1999, the examiner noted that in
1978 the veteran had hepatitis with rather high values that
promptly disappeared. The examiner also said that at that
time the veteran was injecting himself. After physical
examination, the examiner commented that the veteran was not
vomiting, never had hematemesis, never received transfusions,
but did use intravenous drugs. The diagnosis was “Hepatitis
C diagnosed by tests that are done for the first time about
three months ago (there is a story of Hepatitis in 1978).
Hepatitis C antibody was positive on lab test of 7-20-99.”
In a letter dated in September 1999 and addressed to the
veteran, a VA physician said, “This letter is in response to
your clinic visit of your Hepatitis C. By reviewing your
records it appears that you had acute Hepatitis from April 4,
1978 through April 13, 1978.”
The record includes a brochure titled “What Your Should Know
About Hepatitis” with a copyright date of August 1999. The
veteran reports that it was a handout at the VA hospital.
The brochure indicates that acute hepatitis A usually
resolves itself within six months and does not develop into a
chronic disease. The brochure also includes the statement
that hepatitis C virus develops into a chronic infection in
up to 85 percent of the newly infected people each year. It
is further noted that people who are at risk of being
infected with hepatitis C include health care workers, people
with multiple sex partners, intravenous drug users, and
hemophiliacs. It also includes a reference that hepatitis C
can be transmitted by sharing toothbrushes or nail files
contaminated with infected blood although these forms of
transmission rarely occur. Approximately one third or more
of hepatitis A, B, and C cases result from unknown sources
meaning that one does not necessarily have to be among the
“high-risk” groups to become infected with these viruses.
The brochure also includes the notations that most people who
get hepatitis C have no recognizable signs or symptoms but
that some people do experience flu-like symptoms, such as
loss of appetite, nausea and vomiting, fever, weakness,
tiredness, as well as mild abdominal pain. Less common
symptoms are dark urine and yellowing of the skin and eyes
(jaundice).
At the January 2002 video conference hearing, the veteran
testified that when he was 14 years old, he was exposed at
church to a child with hepatitis. He testified that all who
had been at the church function were contacted and he went to
his family doctor, and that was the last he ever heard of it.
He stated that he did not receive any treatment. In
addition, the veteran testified about his hospitalization for
hepatitis at Nellis Air Force Base and Luke Air Force Base
while on active duty. He indicated that it was in 1999 that
he first learned he had hepatitis A and hepatitis C
antibodies in his blood. The veteran also testified that he
knew that hepatitis C was generally associated with
intravenous drug use and things of that nature. He did not
know how he got either the A or C virus but he added that he
had a mole on the back of his neck that inevitably gets
clipped when he has a haircut, and that might be the way he
got the hepatitic C virus.
VA outpatient records show that when the veteran was seen in
a mental health clinic in February 2002, he denied alcohol
use since age 20 when he developed hepatitis in service. He
stated that he had been a heroin and methamphetamine user for
about six years and stopped both about 16 years ago. Later
records show that the veteran received a series of three
doses of Hepatitis B vaccine, which was completed in May 2002
In the report of an August 2002 VA examination, the physician
stated that he reviewed the claims file and the computerized
VA record. He noted that in 1978 the veteran was
hospitalized with symptoms compatible with acute hepatitis,
that his liver enzymes were markedly elevated, but rapidly
dropped to normal. The physician said that the veteran told
him that he knew there were several other cases of hepatitis
at the same time because he was asked several times if was
from “area two” barracks section, where apparently other
people had a similar illness. The physician noted that the
veteran had never had a transfusion or tattoos. He noted
that the veteran did use injectable hard drugs but stated
that it was a “long time ago.” The physician reported that
the veteran stated that he quit using drugs about 20 years
ago, which the physician said if taken literally would mean
in 1982, two years after he left the service.
In the August 2002 report, the VA physician noted that the
veteran was positive for hepatitis C and that three days
prior to the examination liver enzymes were mildly elevated,
and also had been mildly elevated in October 2001. The
physician said the record included no test for total
hepatitis A antibody. He stated that the veteran was
negative for hepatitis B and had been given a vaccine to
prevent that. The physician noted that the veteran quit
drinking alcohol a number of years ago and said the only
symptom the veteran described was fatigue. The veteran also
described a lot of tenderness and sensitivity in the liver
area. As examples, the veteran said if he rode on a long
trip, that area became very painful and uncomfortable and
that when a doctor recently palpated his liver very
thoroughly, he was in pain for a day or more.
After physical examination, the impression was that the
veteran is positive for hepatitis C and has a mild elevation
of liver enzymes, which the physician said is suggestive that
there may be an element of chronic hepatitis. The physician
stated that the hepatitis contracted in the service in March
1978 clinically is more likely than not to have been
hepatitis A (the brief illness, the severity with rapid
resolution, the other cases at the base at the same time, and
apparently in the same barracks). The physician said that
presuming that was hepatitis A, there is no relation between
the veteran’s current diagnosis and the in-service hepatitis.
The physician at the August 2002 VA examination stated that
the only risk factor the veteran described for hepatitis C
was drug abuse with needle use and that this by his history
at the current examination and by the notation of use in the
1980s would indicate that was either developed or continuing
after he was in the service. The physician concluded his
report stating that he was awaiting test results for
hepatitis A total antibodies. He then said, “[i]t cannot be
stated as likely as not that the hepatitis C was incurred in
the service, and it is very unlikely that it is related to
the episode of acute hepatitis in the service.”
In an addendum report dated in September 2002, the VA
physician reported hepatitis A total antibodies are positive,
which he said indicates that the veteran had hepatitis A and
it is very likely that the hepatitis in service, for all the
reasons cited, was hepatitis A.
—————————————————————-
OK. Here’s how to do a NEXUS with capital letters:
—————————————————————-
In a letters to the veteran’s attorney dated in January 2004,
D.C., M.D., outlined her education and professional
experience and responded to the attorney’s request for a
medical opinion involving the question of the etiology of the
veteran’s hepatitis C. Dr. D.C. stated that in preparation
for rendering her opinion, she relied on her training and
experience, conducted a search of the literature relating to
etiological factors in evaluating hepatitis and was enclosing
several articles written to assist a lay person in
understating the issues involved. She also stated that she
had reviewed the VA Clinician’s Guide regarding significant
findings in hepatitis and the diagnostic codes for rating
chronic liver diseases, including hepatitis C.
In her January 2004 opinion letter, Dr. D.C. outlined
information from the veteran’s service medical records noting
the diagnosis of hepatitis at Nellis Air Force Base in 1978
and the later August 1978 notation of green urethral
discharge, which Dr. D.C. stated was significant because the
source of hepatitis C could have been sexual transmission.
She further noted the November 1979 complaints of dark urine
and the SGOT level of 320, which she pointed out is more than
a factor of 10 higher than is considered normal. She also
acknowledged the veteran’s history of drug use, but noted
there was no medical evidence linking that behavior with the
veteran’s hepatitis. She also noted there was no other
medical record of hepatitis until 1999 when the veteran was
diagnosed with hepatitis.
In her letter, Dr. D.C. stated that based on the above
information, it was her observation that the symptoms the
veteran experienced in 1978 and 1979 suggested not one, but
two, incidents of hepatitis. She said that since hepatitis A
normally only shows up once in an individual, the veteran’s
body would be expected to produce the antibodies necessary to
combat hepatitis A. She said that the observations of 1979
were highly symptomatic of hepatitis.
Dr. D.C. said it is her professional opinion that the
hepatitis that the veteran is now experiencing is more likely
than not the hepatitis that he was diagnosed with in service
in 1978 or 1979. She noted that in 1978 hepatitis was not
characterized by classes such as A, B, or C. She went on to
state that the veteran had two separate episodes of hepatic
irritation in service, Hepatitis A does not reoccur, and the
veteran tested negative for hepatitis B in 1999; she
concluded it is therefore more likely than not that one of
those episodes in service was hepatitis C.
In a notarized affidavit dated in April 2005, the veteran’s
attorney stated that he had sought the expert medical opinion
of Dr. D.C. and in so doing provided her with a complete copy
of the claims file that he had obtained from VA in
approximately June 2003. He stated prior to engaging Dr.
D.C.’s service he emphasized the importance of having her
review all the medical records in the file, and she indicated
complete understanding and agreement with this requirement.
In a sworn and notarized affidavit dated in May 2005, the
veteran stated that he recalled that in basic training his
flight received air gun injections and the airman in front of
him passed out and fell and was cut on the arm. The veteran
stated that he caught the airman as he fell and blood from
that airman got all over his left forearm and hands. The
veteran stated that it was some time before he had a chance
to wash with soap and water. The veteran also recalled he
saw the air injections being administered to multiple
individuals without cleaning the injector. Also, the veteran
recalled that his mouth bled during dental cleanings in
service.
In a letter dated in August 2005, Dr. D.C. reported that she
had again completely reviewed all the medical documentation
in the veteran’s claims file including the most recent VA
doctor’s opinion and the information related to the air gun
injection the veteran received while on active duty. Dr.
D.C. stated that based upon having access to all the records,
it remained her professional opinion that the medical
evidence in the veteran’s service records strongly suggests
that the veteran experienced two incidents of hepatitis in
service. She said that the 1978 episode had all the symptoms
of hepatitis A or C: tender liver, yellowish skin, fatigue,
poor appetite accompanied by sexual contact that was
conducive to contracting this disease. She observed that the
1979 episode included dark urine and fatigue, also
symptomatic of hepatitis, and per the medical record,
possibly related to the occurrence in 1978.
In her August 2005 letter, Dr. D.C. stated that medical
research on hepatitis indicates that hepatitis A does not
reoccur, the veteran tested negative for hepatitis B in 1999,
and hepatitis C frequently does not produce symptoms until
many years after having been contacted. Dr. D.C. concluded
that hepatitis C more likely than not had its etiology in one
of the two incidents while on active duty.
—————————————————————-
Is that BUFF or what? There’s no if s, ands or buts in this. It is a More Likely Than Not , But what the hey. There’s no wiggle room here and the VLJ had to rule the way he did. This is why I try to tell everyone their case is unique to them , and them only. This is proof that you can win. Somebody get this Lady’s Name, Rank, Airspeed and Tail # out of the St. Louis Phonebook .She’ll be under Doctors in the Yellow Pages with the surname starting in C and a Christian name with D. This is the gal you want writing your nexus. I’m DEAD SERIOUS. She’s so good the VA isn’t printing her last name!
—————————————————————-
Background
The issues on appeal are entitlement to service connection
for residuals of hepatitis A and entitlement to service
connection for hepatitis C. The veteran has argued that he
should simply be awarded service connection for hepatitis
because he had hepatitis in service and he believes that all
his present liver trouble is due to the hepatitis he
contracted in service.
Review of the veteran’s service medical records shows that he
was hospitalized in early March 1978 after having noticed the
onset of dark urine and general malaise. At the time, he was
on temporary duty at Nellis Air Force Base and was admitted
to the hospital for observation. Liver function studies
initially showed elevations of the alkaline phosphatase of
120, bilirubin 9.1, and SGOT (serum glutamic oxaloacetic
transaminase) 2,128. The urine showed a large amount of
bilirubin. After four days, the veteran was transferred to
the hospital at Luke Air Force Base where on examination the
liver edge was palpable, but not grossly enlarged. The liver
was slightly tender, and the veteran was noted to have
scleral icterus. Liver function tests drawn the following
day were essentially normal, with only mild elevation of the
SGPT (serum glutamate pyruvate transaminase). The veteran
was discharged to duty in mid-March 1978, and the final
diagnosis was hepatitis. Clinical Record Cover Sheets from
both hospitals listed the diagnosis as acute hepatitis.
Chronological records show that in August 1978, the veteran
was seen for follow up of hepatitis and reported that he now
felt well. He also reported that he had been experiencing
green urethral discharge and dysuria for the past two days
and gave a history of suspicious sexual contact a few days
earlier. After examination, the assessment was past
hepatitis, resolved, and urethritis, nonspecific.
Chronological records of medical care show that in early
November 1979 the veteran was seen with complaints of dark
urine and fatigue, and he gave a history of jaundice about a
year and a half earlier. He reported that his appetite was
good but that he had a three pound weight loss in the past
two weeks. The assessment after clinical examination was
uropathy, question of venereal disease, question of urinary
tract infection. Laboratory studies were ordered. On
follow-up three days later the veteran reported that he had
had loose stool and cramps the previous day, but his appetite
and digestion were good and his urine was not as dark. By
the sixth day, urinalysis was essentially negative, and the
veteran was clinically negative.
A laboratory report shows that the clinical physician
requested a study for the veteran’s SGOT reading in early
November 1979. The SGOT value was 320, and the laboratory
report shows that the normal value for men is from 0 to 26.
That result was noted in the chronological records in late
November 1979, and at that time, clinical examination
revealed no liver enlargement; there was slight tenderness in
the right upper quadrant with no guarding. The assessment
was elevated SGOT, clinically negative. The veteran was
given an appointment to return in about six weeks. Liver
function tests based on a blood sample taken in late November
1979 show the SGOT value was 17 at that time, while the SGPT
value was 61. The laboratory report shows 0 to 48 as the
normal range for SGPT for males.
In two record entries on the same date in late January 1980,
the physician who examined the veteran in November 1979,
reexamined him and stated there was no evidence of clinical
pathology due to drug or alcohol abuse. In both entries he
noted a history of hepatitis in November 1979. There were no
abnormalities on clinical examination. The physician ordered
laboratory studies including SGOT, but in a later undated
record entry noted there were no lab results in veteran’s
chart. A note on the report of the veteran’s separation
examination in late February 1980 states hepatitis in 1978
NCNS (no complications, no sequelae).
The veteran reports that while he was being seen by a new
doctor at a VA outpatient clinic in 1999, he mentioned that
while he was on temporary duty at Nellis Air Force Base, he
was exposed to and contracted acute hepatitis and there were
several other cases at the same time in the same area.
As has been reported by the veteran, VA outpatient records
dated in April 1999 show that laboratory tests were done;
tests referred to a private laboratory detected total
antibodies to hepatitis A; the VA test for hepatitis B was
negative; and multiple VA tests for hepatitis C were
positive. In clinical records, the VA physician noted that
the veteran said he was an intravenous drug user in
approximately the 1980s.
At a VA examination in July 1999, the examiner noted that in
1978 the veteran had hepatitis with rather high values that
promptly disappeared. The examiner also said that at that
time the veteran was injecting himself. After physical
examination, the examiner commented that the veteran was not
vomiting, never had hematemesis, never received transfusions,
but did use intravenous drugs. The diagnosis was “Hepatitis
C diagnosed by tests that are done for the first time about
three months ago (there is a story of Hepatitis in 1978).
Hepatitis C antibody was positive on lab test of 7-20-99.”
In a letter dated in September 1999 and addressed to the
veteran, a VA physician said, “This letter is in response to
your clinic visit of your Hepatitis C. By reviewing your
records it appears that you had acute Hepatitis from April 4,
1978 through April 13, 1978.”
The record includes a brochure titled “What Your Should Know
About Hepatitis” with a copyright date of August 1999. The
veteran reports that it was a handout at the VA hospital.
The brochure indicates that acute hepatitis A usually
resolves itself within six months and does not develop into a
chronic disease. The brochure also includes the statement
that hepatitis C virus develops into a chronic infection in
up to 85 percent of the newly infected people each year. It
is further noted that people who are at risk of being
infected with hepatitis C include health care workers, people
with multiple sex partners, intravenous drug users, and
hemophiliacs. It also includes a reference that hepatitis C
can be transmitted by sharing toothbrushes or nail files
contaminated with infected blood although these forms of
transmission rarely occur. Approximately one third or more
of hepatitis A, B, and C cases result from unknown sources
meaning that one does not necessarily have to be among the
“high-risk” groups to become infected with these viruses.
The brochure also includes the notations that most people who
get hepatitis C have no recognizable signs or symptoms but
that some people do experience flu-like symptoms, such as
loss of appetite, nausea and vomiting, fever, weakness,
tiredness, as well as mild abdominal pain. Less common
symptoms are dark urine and yellowing of the skin and eyes
(jaundice).
At the January 2002 video conference hearing, the veteran
testified that when he was 14 years old, he was exposed at
church to a child with hepatitis. He testified that all who
had been at the church function were contacted and he went to
his family doctor, and that was the last he ever heard of it.
He stated that he did not receive any treatment. In
addition, the veteran testified about his hospitalization for
hepatitis at Nellis Air Force Base and Luke Air Force Base
while on active duty. He indicated that it was in 1999 that
he first learned he had hepatitis A and hepatitis C
antibodies in his blood. The veteran also testified that he
knew that hepatitis C was generally associated with
intravenous drug use and things of that nature. He did not
know how he got either the A or C virus but he added that he
had a mole on the back of his neck that inevitably gets
clipped when he has a haircut, and that might be the way he
got the hepatitic C virus.
VA outpatient records show that when the veteran was seen in
a mental health clinic in February 2002, he denied alcohol
use since age 20 when he developed hepatitis in service. He
stated that he had been a heroin and methamphetamine user for
about six years and stopped both about 16 years ago. Later
records show that the veteran received a series of three
doses of Hepatitis B vaccine, which was completed in May 2002
In the report of an August 2002 VA examination, the physician
stated that he reviewed the claims file and the computerized
VA record. He noted that in 1978 the veteran was
hospitalized with symptoms compatible with acute hepatitis,
that his liver enzymes were markedly elevated, but rapidly
dropped to normal. The physician said that the veteran told
him that he knew there were several other cases of hepatitis
at the same time because he was asked several times if was
from “area two” barracks section, where apparently other
people had a similar illness. The physician noted that the
veteran had never had a transfusion or tattoos. He noted
that the veteran did use injectable hard drugs but stated
that it was a “long time ago.” The physician reported that
the veteran stated that he quit using drugs about 20 years
ago, which the physician said if taken literally would mean
in 1982, two years after he left the service.
In the August 2002 report, the VA physician noted that the
veteran was positive for hepatitis C and that three days
prior to the examination liver enzymes were mildly elevated,
and also had been mildly elevated in October 2001. The
physician said the record included no test for total
hepatitis A antibody. He stated that the veteran was
negative for hepatitis B and had been given a vaccine to
prevent that. The physician noted that the veteran quit
drinking alcohol a number of years ago and said the only
symptom the veteran described was fatigue. The veteran also
described a lot of tenderness and sensitivity in the liver
area. As examples, the veteran said if he rode on a long
trip, that area became very painful and uncomfortable and
that when a doctor recently palpated his liver very
thoroughly, he was in pain for a day or more.
After physical examination, the impression was that the
veteran is positive for hepatitis C and has a mild elevation
of liver enzymes, which the physician said is suggestive that
there may be an element of chronic hepatitis. The physician
stated that the hepatitis contracted in the service in March
1978 clinically is more likely than not to have been
hepatitis A (the brief illness, the severity with rapid
resolution, the other cases at the base at the same time, and
apparently in the same barracks). The physician said that
presuming that was hepatitis A, there is no relation between
the veteran’s current diagnosis and the in-service hepatitis.
The physician at the August 2002 VA examination stated that
the only risk factor the veteran described for hepatitis C
was drug abuse with needle use and that this by his history
at the current examination and by the notation of use in the
1980s would indicate that was either developed or continuing
after he was in the service. The physician concluded his
report stating that he was awaiting test results for
hepatitis A total antibodies. He then said, “[i]t cannot be
stated as likely as not that the hepatitis C was incurred in
the service, and it is very unlikely that it is related to
the episode of acute hepatitis in the service.”
In an addendum report dated in September 2002, the VA
physician reported hepatitis A total antibodies are positive,
which he said indicates that the veteran had hepatitis A and
it is very likely that the hepatitis in service, for all the
reasons cited, was hepatitis A.
—————————————————————-
OK. Here’s how to do a NEXUS with capital letters:
—————————————————————-
In a letters to the veteran’s attorney dated in January 2004,
D.C., M.D., outlined her education and professional
experience and responded to the attorney’s request for a
medical opinion involving the question of the etiology of the
veteran’s hepatitis C. Dr. D.C. stated that in preparation
for rendering her opinion, she relied on her training and
experience, conducted a search of the literature relating to
etiological factors in evaluating hepatitis and was enclosing
several articles written to assist a lay person in
understating the issues involved. She also stated that she
had reviewed the VA Clinician’s Guide regarding significant
findings in hepatitis and the diagnostic codes for rating
chronic liver diseases, including hepatitis C.
In her January 2004 opinion letter, Dr. D.C. outlined
information from the veteran’s service medical records noting
the diagnosis of hepatitis at Nellis Air Force Base in 1978
and the later August 1978 notation of green urethral
discharge, which Dr. D.C. stated was significant because the
source of hepatitis C could have been sexual transmission.
She further noted the November 1979 complaints of dark urine
and the SGOT level of 320, which she pointed out is more than
a factor of 10 higher than is considered normal. She also
acknowledged the veteran’s history of drug use, but noted
there was no medical evidence linking that behavior with the
veteran’s hepatitis. She also noted there was no other
medical record of hepatitis until 1999 when the veteran was
diagnosed with hepatitis.
In her letter, Dr. D.C. stated that based on the above
information, it was her observation that the symptoms the
veteran experienced in 1978 and 1979 suggested not one, but
two, incidents of hepatitis. She said that since hepatitis A
normally only shows up once in an individual, the veteran’s
body would be expected to produce the antibodies necessary to
combat hepatitis A. She said that the observations of 1979
were highly symptomatic of hepatitis.
Dr. D.C. said it is her professional opinion that the
hepatitis that the veteran is now experiencing is more likely
than not the hepatitis that he was diagnosed with in service
in 1978 or 1979. She noted that in 1978 hepatitis was not
characterized by classes such as A, B, or C. She went on to
state that the veteran had two separate episodes of hepatic
irritation in service, Hepatitis A does not reoccur, and the
veteran tested negative for hepatitis B in 1999; she
concluded it is therefore more likely than not that one of
those episodes in service was hepatitis C.
In a notarized affidavit dated in April 2005, the veteran’s
attorney stated that he had sought the expert medical opinion
of Dr. D.C. and in so doing provided her with a complete copy
of the claims file that he had obtained from VA in
approximately June 2003. He stated prior to engaging Dr.
D.C.’s service he emphasized the importance of having her
review all the medical records in the file, and she indicated
complete understanding and agreement with this requirement.
In a sworn and notarized affidavit dated in May 2005, the
veteran stated that he recalled that in basic training his
flight received air gun injections and the airman in front of
him passed out and fell and was cut on the arm. The veteran
stated that he caught the airman as he fell and blood from
that airman got all over his left forearm and hands. The
veteran stated that it was some time before he had a chance
to wash with soap and water. The veteran also recalled he
saw the air injections being administered to multiple
individuals without cleaning the injector. Also, the veteran
recalled that his mouth bled during dental cleanings in
service.
In a letter dated in August 2005, Dr. D.C. reported that she
had again completely reviewed all the medical documentation
in the veteran’s claims file including the most recent VA
doctor’s opinion and the information related to the air gun
injection the veteran received while on active duty. Dr.
D.C. stated that based upon having access to all the records,
it remained her professional opinion that the medical
evidence in the veteran’s service records strongly suggests
that the veteran experienced two incidents of hepatitis in
service. She said that the 1978 episode had all the symptoms
of hepatitis A or C: tender liver, yellowish skin, fatigue,
poor appetite accompanied by sexual contact that was
conducive to contracting this disease. She observed that the
1979 episode included dark urine and fatigue, also
symptomatic of hepatitis, and per the medical record,
possibly related to the occurrence in 1978.
In her August 2005 letter, Dr. D.C. stated that medical
research on hepatitis indicates that hepatitis A does not
reoccur, the veteran tested negative for hepatitis B in 1999,
and hepatitis C frequently does not produce symptoms until
many years after having been contacted. Dr. D.C. concluded
that hepatitis C more likely than not had its etiology in one
of the two incidents while on active duty.
—————————————————————-
Is that BUFF or what? There’s no if s, ands or buts in this. It is a More Likely Than Not , But what the hey. There’s no wiggle room here and the VLJ had to rule the way he did. This is why I try to tell everyone their case is unique to them , and them only. This is proof that you can win. Somebody get this Lady’s Name, Rank, Airspeed and Tail # out of the St. Louis Phonebook .She’ll be under Doctors in the Yellow Pages with the surname starting in C and a Christian name with D. This is the gal you want writing your nexus. I’m DEAD SERIOUS. She’s so good the VA isn’t printing her last name!
—————————————————————-
Analysis
Residuals of hepatitis A
In order to prevail on the merits on the issue of service
connection, there must be medical evidence of current
disability; medical or, in certain circumstances lay,
evidence of in-service incurrence or aggravation of a disease
or injury; and medical evidence of a nexus between the
claimed in-service disease or injury and the present
disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir.
2004); Hickson v. West, 12 Vet. App. 247, 253 (1999).
With respect to the issue regarding hepatitis A, the record
includes only a laboratory finding that the veteran tests
positive for hepatitis A total antibodies, but there is no
finding or diagnosis of any residuals of hepatitis A. The VA
physician who conducted the August 2002 VA examination noted
in his September 2002 addendum that the veteran’s hepatitis A
total antibodies are positive, which indicated that he had
had hepatitis A, and also said it was very likely that the
veteran had hepatitis A in service, but neither that
physician nor any other health care provider has identified
any current finding or diagnosis as a residual of hepatitis
A.
It is now well-settled that in order to be considered for
service connection, a claimant must first have a disability.
In Brammer v. Derwinski, 3 Vet. App. 223 (1992), the Court
noted that Congress specifically limited entitlement for
service-connected disease or injury to cases where such
incidents had resulted in a disability. See also Rabideau v.
Derwinski, 2 Vet. App. 141, 143 (1992); Gilpin v. Brown, 155
F.3d 1353 (Fed. Cir. 1998) (service connection may not be
granted unless a current disability exists). A “current
disability” means a disability shown by competent medical
evidence to exist at the time of the award of service
connection. Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir.
1997); Chelte v. Brown, 10 Vet. App. 268 (1997).
In this case, the presence of hepatitis A total antibodies in
the veteran’s blood represents only a laboratory finding, and
is not a disability in and of itself for which VA
compensation benefits are payable. See 61 Fed. Reg. 20440,
20445 (May 7, 1996) (laboratory test results are not, in and
of themselves, disabilities). Service connection may not be
granted for a laboratory finding. “Congress specifically
limits entitlement for service-connected disease or injury to
cases where such incidents have resulted in a disability. In
the absence of proof of present disability there can be no
valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225
(1992); see 38 U.S.C.A. § 1131.
Accordingly, because there is no competent evidence of the
presence of residuals of hepatitis A, the Board finds that
the preponderance of the evidence in this case is against the
claim, and the benefit of the doubt doctrine is not for
application. See generally Gilbert v. Derwinski, 1 Vet. App.
49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir.
2001). The Board therefore concludes that service connection
for residuals of hepatitis A is not warranted.
—————————————————————-
This is normal.You won’t ever get SC for hepA. It’s not chronic.
Hepatitis C
—————————————————————-
As outlined in the background section above, there is medical
evidence that the veteran currently has hepatitis C. Not
only have laboratory studies been positive for the virus, at
the August 2002 VA examination, the physician detected liver
fullness and there were reports of tenderness and sensitivity
in the liver area as well as fatigue. The physician stated
that the veteran’s elevated liver enzymes were suggestive of
chronic hepatitis.
As to the remaining elements required to support the
veteran’s claim, that is, evidence of inservice incurrence of
the disease and medical evidence of a nexus between the
claimed in-service disease and the present disability, there
are conflicting opinions. The VA physician who conducted the
August 2002 examination concluded that the hepatitis
contracted in service in March 1978 was hepatitis A, and he
based his conclusion on the current presence of hepatitis A
total antibodies plus the inservice evidence of the briefness
of the illness, the severity with rapid resolution, and the
veteran’s reports of other cases at the base at the same
time, and apparently in the same barracks. That physician
stated that the only risk factor the veteran described for
hepatitis C was drug abuse with needle use. He said this was
by the veteran’s history at the examination and by the
notation of use in the 1980s, which the physician said would
indicate that that was either developed or continuing after
he was in the service. He said it could not be stated that
it is as likely as not that the hepatitis C was incurred in
service and it is very unlikely that it is related to the
episode of acute hepatitis in service. While the opinion of
the VA physician is consistent with the evidence he cites in
support of that opinion, it does not explicitly take into
account other evidence in the veteran’s record, including the
August 1978 record entry regard urethral discharge and the
November 1979 evidence of hepatic irritation.
—————————————————————-
This is where the VA doc. steps on his necktie. “Very Unlikely” is a BIG nexus that requires BIG facts. He fails to address how this VET could have 2 cases of Hepatitis, assuming they both are type A. The VET, by now, probably knows more about how all these medical DXs work, but is not allowed to “opine”. Good thing the attorney got this claim in front of someone with a College Education, or he’d be rearranging the deck furniture on the Titanic to keep it dry. The St. Louis RO would have shot this down in a New York Minute
—————————————————————-
In her opinion, Dr. D.C. noted this evidence as well as the
March 1978 records and diagnosis of acute hepatitis. Based
on her experience, her literature search, and review of the
complete evidence, she presented her opinion that the medical
evidence in the veteran’s service medical records strongly
suggests that the veteran experienced two incidents of
hepatitis in service. Her statement that medical research
indicates that hepatitis A does not reoccur is consistent
with the information in the brochure the veteran obtained
from VA, and her observation that the veteran has not had
hepatitis B is documented by laboratory tests. She
acknowledged the veteran’s history of drug use, and while the
VA physician said this was the veteran’s only risk factor for
hepatitis C, she pointed out the evidence of the green
urethral discharge in service in August 1978, which she
points out as evidence of opportunity for sexual transmission
of hepatitis C. The Board further notes that while the
veteran told the examiner who conducted the July 1999 VA
examiner that he was injecting himself in 1978, the physician
who examined the veteran in January 1980, which was after the
second episode of hepatic irritation in November 1979 stated
there was no evidence of clinical pathology due to drug or
alcohol abuse.
—————————————————————-
This is priceless. She uses the VA’s hepatitis guide to refute the VA Doctor’s nexus. It already had more holes than Swiss Cheese , but she pointed them out. The VET is also lucky that the 1979 VA doc. didn’t address the IVDU or this would have been more difficult.
—————————————————————-
Based on her review of the record and analysis of the medical
evidence, Dr. D.C. found that the evidence strongly suggests
that the veteran experienced two incidents of hepatitis in
service and concluded that the veteran’s present hepatitis C
more likely than not had its etiology in one of the two
incidents while on active duty. Because Dr. D.C. reviewed
and accounted for all medical evidence and provided a
plausible rationale for her conclusion, when weighed against
the opinion of the VA physician whose opinion is against the
claim, the Board finds the opinion of Dr. D.C. to be of
greater probative value. For that reason, the Board finds
that the competent evidence supports the finding that the
veteran’s current hepatitis C was initially manifest with
symptoms of hepatic irritation in service. The Board
therefore concludes that hepatitic C was incurred in service
warranting the grant of service connection for that
disability.
ORDER
Service connection for residuals of hepatitis A is denied.
Service connection for hepatitis C is granted.
——————————-
od, is this cool or what. You have all the elements of good and evil. Excuse me for being melodramatic, but this is JUSTICE. The VA had this ol’ boy up against the ropes. He goes into the first appeal in January,2002 with nothing . That means he started this claim about June, 2000. They give him the bum’s rush. He gets the LAW DOG and they finally get everything assembled , gosh darn it, right after the SSOC. Ne problemo. Let’s let the VLJ sort it out. We know VA justice is Non-Adversarial. Nice piece of work there, Judge Williams. Congratulations from all of us here @ HCVETS. VET 1, VA 0.
asknod
Bethanie Spangenberg
kcraveiro
robinhoodesqvetsatty
Wesley McCauley
