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BVA---Combat enhancement(1154b)

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Date: 09/17/08

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Citation Nr: 0618053 Decision Date: 06/20/06 Archive Date: 06/27/06 DOCKET NO. 03-01 370 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Associate Counsel INTRODUCTION The veteran served on active duty from June 1969 to March 1971. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a May 2002 rating decision by the Winston-Salem, North Carolina Department of Veterans Affairs (VA) Regional Office (RO), which in pertinent part denied entitlement to service connection for hepatitis C. This case was before the Board in December 2003 and February 2005 when it was remanded for additional development. That development has been completed and the case has been returned to the Board for adjudication. Pursuant to the veteran's request, he was scheduled for a videoconference hearing that was held in November 2004 before the undersigned. A transcript of this hearing is of record. FINDINGS OF FACT 1. All relevant evidence necessary to render a decision on the veteran's claim has been obtained by the RO, and the RO has notified him of the type of evidence needed to substantiate his claim. 2. Hepatitis C was contracted by the veteran during military service. CONCLUSION OF LAW Hepatitis C was incurred in active service. 38 U.S.C.A. §§ 1110, 1154(b), 5103, 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.159, 3.303 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 As a preliminary matter, the Board finds that VA has satisfied its duties to the veteran under the Veterans Claims Assistance Act of 2000 (VCAA). A VCAA notice consistent with 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim, or something to the effect that the claimant should "give us everything you've got pertaining to your claim(s)." This new "fourth element" of the notice requirement comes from the language of 38 C.F.R. § 3.159(b)(1). Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112 (2004). The RO considered the veteran's claim under the VCAA and applicable regulations. Additionally, VA has made all reasonable efforts to assist the veteran in the development of his claim and has notified him of the information and evidence necessary to substantiate the claim and of the efforts to assist him. In a letter dated in March 2001, the veteran was notified of the information and evidence needed to substantiate and complete his claim, of what part of that evidence he was to provide, and what part VA would attempt to obtain for him. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In this case, although the VCAA notice letter that was provided to the veteran does not specifically refer to the "fourth element," the Board finds that the veteran was otherwise fully notified of the need to give to VA any evidence pertaining to his claim. The March 2001 letter informed him that it was his responsibility to ensure that VA received any evidence not in the possession of the Federal government; this would necessarily include submitting any relevant evidence in his possession. In Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II, which replaced the opinion in Pelegrini v. Principi, 17 Vet. App. 412 (2004), the U.S. Court of Appeals for Veterans' Claims (Court) held that a VCAA notice must be provided to a claimant before the initial unfavorable [agency of original jurisdiction (AOJ)] decision on claim for VA benefits. VCAA was provided prior to the issuance of the May 2002 RO decision that is the subject of this appeal. The Board also notes that prior to the May 2002 RO decision and subsequently, the veteran has been presented opportunities to present any evidence in his possession or that he could obtain that would help substantiate his claim. As to any duty to provide an examination and/or opinion addressing the question of whether the veteran contracted hepatitis C during service or is causally linked to service, the Board notes that, in the case of a claim for disability compensation, the assistance provided to the claimant shall include providing a medical examination or obtaining a medical opinion when such examination or opinion is necessary to make a decision on the claim. An examination or opinion shall be treated as being necessary to make a decision on the claim if the evidence of record, taking into consideration all information and lay or medical evidence (including statements of the claimant) contains competent evidence that the claimant has a current disability, or persistent or recurring symptoms of disability; and indicates that the disability or symptoms may be associated with the claimant's act of service; but does not contain sufficient medical evidence for VA to make a decision on the claim. 38 U.S.C. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2005). In this case, a VA examination of the veteran was obtained by the RO. The VA opinion was quite thorough in nature. These VA reports when viewed in conjunction with the lay and additional medical evidence associated with the claims file, is sufficient for a determination on the merits of the appellant's appeal. See 38 C.F.R. § 5103A(d). Under these circumstances, there is no further duty to provide another examination or medical opinion. Id. The Board finds that all obtainable evidence necessary for an equitable disposition of the appeal has been obtained. During the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, Nos. 01-1917 and 02-1506, which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Dingess/Hartman, slip op. at 14. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. In the present appeal, the veteran was provided with notice of what type of information and evidence was needed to substantiate his claim for service connection, but he was not provided with notice of the type of evidence necessary to establish a disability rating or effective date for the disability on appeal. Despite the inadequate notice provided to the veteran on these latter two elements, the Board finds that this constitutes harmless error. The RO will address the notice defect with respect to the rating and effective date elements when effectuating the award. Laws and Regulations A claimant with active service may be granted service connection for disease or disability either incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. When the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support a claim of service connection. 38 C.F.R. § 3.303(b). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Alternatively, the nexus between service and the current disability can be satisfied by medical or lay evidence of continuity of symptomatology and medical evidence of a nexus between the present disability and the symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495 (1997). The provisions of 38 U.S.C.A. § 1154(b) provide that in the case of any veteran who engaged in combat with the enemy in active military service during a period of war, the Secretary shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred or aggravated by such service, satisfactory lay or other evidence of service incurrence or aggravation if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation. However, the provisions of 38 U.S.C.A. § 1154(b) are only applicable in cases where a veteran is shown to have actually served in combat with the enemy. For application of 38 U.S.C.A. § 1154(b), it is not sufficient that a veteran be shown to have served during a period of war or to have served in a theater of combat operations or in a combat zone. To gain the benefit of a relaxed standard for proof of service incurrence of an injury or disease, Section 1154(b) requires that the veteran have actually participated in combat with the enemy. See VAOPGCPREC 12-99 (October 18, 1999). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102. Analysis The veteran has been diagnosed with hepatitis C. He contends, in essence, that this condition is causally related to exposure to blood and contagion while carrying wounded bodies in Vietnam. In the alternative, he argues that it could be due to inoculations from an air gun that was reused on multiple servicemen, shared razors while shaving or dental care that was provided in less than sanitary conditions, during active duty. See November 2004 Hearing Transcript. The veteran's service personnel DD 214 form shows that he served in the infantry during the Vietnam Conflict. For his service, he was awarded the Combat Infantry Badge, among other decorations. The veteran's service medical records confirm a series of vaccinations during active duty. These records, to include a February 1971 discharge examination report and a report of medical history, are otherwise negative for any findings attributable to hepatitis C, or exposure to known risk factors. The post-service medical records show that in 1979, the veteran was seriously injured with electrical burns to his arms and legs. As a result of this injury, he underwent quadruple amputations. The medical records reflect that during the amputation procedure the veteran lost 1500 cc of fluid. As a result of the blood loss, he was given 4 units of packed red blood cells and 4 units of fresh frozen plasma (May 1979 medical reports). The blood transfusion took place at a time when medical facilities did not screen blood for hepatitis C. Post-service medical records show that a liver biopsy performed in August 2000, revealed a diagnosis of hepatitis C. Subsequent medical records reflect that the veteran has received treatment for hepatitis C, hemochromatosis and cirrhosis. In September 2005, the veteran underwent a VA examination. He reported that while in Vietnam, he was exposed to both friendly and enemy fire. The veteran related having been exposed to more blood, body parts and active bleeding than actual medics. He also described sharing razors with other soldiers. The veteran denied drug use or multiple sex partners. The examiner identified two major risk factors; exposure to blood in Vietnam and the blood transfusion performed in 1979. However, he stated that it was not possible for him to determine which risk factor was involved or was the cause of the hepatitis C inoculation. He opined that it was as likely as not that the he could have gotten hepatitis C during Vietnam, just as it was as likely as not that he would have been infected by the 1979 blood transfusion. The examiner concluded that he could not say, with any degree of medical certainty, which of these two risk factors was the source of his hepatitis C without speculation. The Board notes that 38 U.S.C.A. § 1154(b) provides a relaxed evidentiary standard of proof to determine service connection. Collette v. Brown, 82 F.3d 389 (1996). Specifically, VA regulations provide that in the case of any veteran who has engaged in combat with the enemy in active service during a period of war, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of service, even though there is no official record of such incurrence or aggravation. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2005); see generally Peters v. Brown, 6 Vet. App. 540, 543 (1994). The reduced evidentiary burden only applies to the question of service incurrence, and not to the question of either current disability or nexus to service, both of which generally require competent medical evidence. Brock v. Brown, 10 Vet. App. 155, 162 (1997); Libertine v. Brown, 9 Vet. App. 521 (1996); Beausoleil v. Brown, 8 Vet. App. 459, 464 (1996). In the opinion of the Board, the evidence is in equipoise as to the question at issue; that is, whether the veteran contracted hepatitis C due to exposure to tainted blood while serving in Vietnam. Resolving the benefit of the doubt in his favor, service connection for hepatitis C is warranted. 38 U.S.C.A. §§ 1110, 1154(b), 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303. ORDER Entitlement to service connection for hepatitis C is granted. ____________________________________________ K. R. FLETCHER Acting Veterans Law Judge, Board of Veterans' Appeals This shows the relaxed standard of evidence necessary to prove a claim if you were involved in combat. The Combat Infantryman's Badge is a sure fire indicator of combat, as is a Combat action ribbon.

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