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From: Posted by NOD
Category: -
Date: 09/14/08
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, MissouriTHE 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 ----------------------------------------------------------------------------------------------------------------------- Stop:::Look at all these claims. The VLJ is gonna wanna rule on the hep first, all this other stuff is secondary to it. Notice this old boy is swift. He's got himself an attorney. The law now says you can hire him but he can't take more than 20% of your $. You'll find these fellas' offices hanging around the SSA Office. This shylock is pretty good. He went out and hooked up with a red hot Nexus Doc. Read on, this gets way better. ___________________________________________________________________________________ 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. ___________________________________________________________________________________ As to the duty to assist, the veteran's service medical records are in the file, and the RO obtained VA medical records, which include examinations and laboratory studies relative to hepatitis A and C. In addition, the veteran has been provided with VA examinations, and a VA medical opinion has been obtained. The veteran testified at a video conference hearing before a Veterans Law Judge who is no longer at the Board, and in a statement received in January 2006, the veteran's attorney indicated that the veteran does not want another hearing. 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. ___________________________________________________________________________________ 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! ____________________________________________________________________________________ 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. 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. ____________________________________________________________________________________ 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 IDVU 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. R. F. WILLIAMS Veterans Law Judge, Board of Veterans' Appeals God, 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. ___________________________________________________________________________________
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