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BVA-- Be careful what you ask for #2

From: Posted by NOD
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Date: 09/21/08

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Citation Nr: 0611589 Decision Date: 04/21/06 Archive Date: 04/26/06 DOCKET NO. 02-20 442 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for hepatitis B. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Hager, Associate Counsel INTRODUCTION The veteran had active service from July 1968 to July 1971, and subsequently served in the Air Force Reserve. Reserve duty time is not at issue herein. This matter initially came before the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In its September 2004 remand, the Board noted that the RO had in December 1999 adjudicated the veteran's April 1999 claim for service connection for hepatitis B on the merits, but subsequently indicated that this was erroneous and the claim should have been treated as a petition to reopen the claim with new and material evidence. The Board, however, noting that the veteran had not been properly notified of the prior, September 1971 denial of his claim for service connection for serum hepatitis, deemed the December 1999 rating decision to have applied the correct standard, and remanded the new claim for service connection for hepatitis B for additional development. As explained below, the requested development has taken place, and the Board will therefore decide the claim. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDING OF FACT The preponderance of the competent, probative evidence of record reflects that the veteran's in-service hepatitis was acute and transitory and resolved without residual disability, and that, to the extent that the veteran has hepatitis B that constitutes a disability, it did not arise for many years after service and is not otherwise related to service. CONCLUSION OF LAW Chronic hepatitis B was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2005). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. (West 2002), and its implementing regulations redefine the obligations of VA with respect to its duties to notify and assist claimants. The VCAA applies to claims, such as the veteran's April 1999 claim here, that were filed prior to its effective date but were finally decided thereafter. VAOPGCPREC 7-2003 (Nov. 19, 2003). In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) discussed both the timing and content of the VCAA's notice requirements. In VAOPGCPREC 7-2004 (July 16, 2004), VA's Office of General Counsel (GC) undertook to explain the holding of Pelegrini. The Board is bound by the precedent opinions of VA's General Counsel as the chief legal officer of the Department. See 38 U.S.C.A. § 7104(c) (West 2002). The Pelegrini Court held that VCAA notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. Pelegrini, 18 Vet. App. at 115, 120. The Court in Pelegrini also held that VCAA notice 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 his or her possession that pertains to the claim. Pelegrini, 18 Vet. App. at 120-121. According to GC, Pelegrini did not require that VCAA notification contain any specific "magic words," and allowed for the VCAA notification requirements to be satisfied by a document such as a statement of the case (SOC) or supplemental statement of the case (SSOC), as long as the document meets the four content requirements listed above. VAOPGCPREC 7-2004, at 3. However, as explained in 7-2004, Pelegrini did not hold that, if VCAA notice was not provided because VA had decided a claim before November 9, 2000, the case must be returned to the AOJ for the adjudication to start anew as though no previous adjudication had occurred. Id. at 2. Rather, Pelegrini indicated that the failure to provide VCAA notice when such notice was not mandated at the time is not a prejudicial error requiring remand where subsequent VA actions satisfy the purpose behind the notice requirement, i.e., affording a veteran an opportunity to participate in the processing of his claim. Pelegrini, 18 Vet. App. at 122- 124. Here, the RO's December 1999 rating decision took place prior to enactment of the VCAA, and, therefore, prior to any VCAA notification. However, subsequent to enactment of the VCAA, and prior to its most recent, November 2005 readjudication of the veteran's claim, VA provided VCAA notice in the Appeals Management Center's (AMC's) September 2004 letter. This letter met the notice requirement. In it, the AMC told the veteran it was still working on his claim for service connection for hepatitis B, and explained how to establish entitlement to this benefit. The letter also indicated the information or evidence needed from the veteran and the respective responsibilities of the veteran and VA in obtaining it. The AMC also wrote on the first page of the letter: "If there is any other evidence or information that you think will support your claim, please let us know. If you have additional evidence in your possession, please send it to us." The AMC's September 2004 letter also complied with the notice requirement as explained in Dingess/Hartman v. Nicholson, Nos. 01-1917 and 02-1506 (Vet. App. March 3, 2006), 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, i.e., 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 letter stated that to establish entitlement to an increased evaluation for a service-connected disability, the evidence had to show that a service-connected condition had gotten worse. The letter also explained that if VA decided the veteran's claim before a year from the date of the letter, he would continue to have until that date to submit additional evidence and protect his entitlement to benefits from the earliest possible date. Moreover, to the extent that this did not fully notify the veteran as to the effective date element of his claim, there is no prejudice to the veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the veteran has been prejudiced thereby). Because the Board will deny the service-connection claim in this case, any questions as to the effective date to be assigned is moot, as there is no effective date to assign. Thus, the AMC's September 2004 letter complied with all of the elements of the notice requirement. This letter and the AMC's November 2004 SSOC constituted subsequent VA process that afforded the veteran a meaningful opportunity to participate effectively in the processing of his claim. Not only has the veteran been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices, but the actions taken by VA essentially cured any error in the timing of VCAA notice and satisfied the purpose behind the notice requirement. It is therefore not prejudicial for the Board to proceed to finally decide this appeal. Moreover, VA obtained all identified treatment records. In addition, as directed by the Board, the AMC asked the veteran in a December 2004 letter about any blood transfusions and obtained additional service medical records from the National Personnel Records Center (NPRC). The Board notes that Dr. "J.P." stated in a June 2004 letter that the veteran "lives from SS disability." However, he made this statement in a letter describing the veteran's service- connected psychiatric disability as well as his circular- vascular disease of the right leg. Moreover, the veteran has not himself indicated that he is receiving SSA disability records in response to multiple VA letters requesting information relating to his claim, including the September 2004 letter asking the veteran to let VA know about any other evidence that would support his claim and to send any additional evidence in his possession. Thus, the evidence indicates that if the veteran is in fact receiving SSA disability payments, he is receiving them for a disorder or disorders other than those for which he is claiming service connection herein, and he did not indicate otherwise in response to letters asking him for additional information regarding his current claim. VA is therefore not obligated to take further action regarding the possibility that there are SSA records that relate to disabilities other than the one for which the veteran is currently claiming service connection. Cf. Quartuccio v. Principi, 16 Vet. App. 183, 187-188 (2002) (requiring VA to obtain SSA disability records where the veteran was receiving SSA disability benefits for the same disorder, schizophrenia, for which he was seeking VA benefits). See also 38 C.F.R. § 3.159(c)(2)(i) (2005) (requiring claimants to cooperate fully with VA's reasonable efforts to obtain relevant Federal records); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street."). In addition, there is no indication that any other records exist that should be requested, or that any pertinent evidence was not received. As there is no indication that any other records exist that should be requested, or that any pertinent evidence was not received, VA thus complied with the VCAA's duty to assist provisions and their implementing regulations. Therefore, under these circumstances, no further development is required to comply with the VCAA or the implementing regulations, and the Board will proceed to adjudicate the veteran's claim. Service connection may be granted for disability resulting from a disease contracted or an injury sustained while on active duty in the military. See 38 U.S.C.A. §§ 1110 (West 2002); 38 C.F.R. § 3.303(a) (2005). When a disease is shown to be chronic in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2005). When such chronicity in service is not adequately supported, or may be legitimately questioned, a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2005). Service connection also is permissible for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, indicates the disease was incurred in service. 38 C.F.R. § 3.303(d) (2005). During service, the veteran was admitted to the emergency room of Bad Cannstatt Army Hospital in August 1969 with jaundice, and was diagnosed with "serum hepatitis." Although the veteran at some point denied using intravenous drugs, the hospital admission report indicates that he subsequently admitted that he had done so. The Board notes that, although other medical records refer to intravenous drug use, the veteran denied any such actions at the May 2002 Decision Review Officer (DRO) conference. In any event, the October 1969 discharge diagnosis indicated serum hepatitis suspected on basis of history of drug abuse, treated and improved. The veteran was transferred to Landstahl Army hospital where he was treated from October to November 1969 and diagnosed with a psychotic reaction (drug induced) and serum hepatitis. The June 1971 separation examination indicated that the veteran had serum hepatitis, secondary to self injection, without sequelae, and liver status was normal. Thus, the in- service medical records reflect that the hepatitis that the veteran had in service was acute and transitory and resolved without residual disability. He therefore did not have a chronic disorder in service or the residuals thereof secondary to hepatitis. In addition, there is no evidence of continuity of symptomatology. There was no hepatitis noted at the September 1971 VA examination, and the liver was not enlarged on palpation. Moreover, all systems, including the abdomen and viscera and endocrine systems, were normal at the March 1985, June 1986, and December 1992 examinations conducted as part of the veteran's Air Force Reserve duty. Further, there is some question as to whether the veteran in fact has hepatitis B that constitutes a disability under VA law. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (based on the definition found in 38 C.F.R. § 4.1, the term disability "should be construed to refer to impairment of earning capacity due to disease, injury, or defect, rather than to the disease, injury, or defect itself"). For example, an October 1998 letter from Dr. "G.Z." indicated that the veteran was hepatitis B DNA negative, but that he had hepatitis C. Dr. "G.Z." concluded that the veteran was either a healthy carrier with only the hepatitis C antibody but no demonstrable virus, or, more likely, was exposed to hepatitis B and is now immune to it. Thus, Dr. "G.Z." concluded, the veteran was at best immune and at worst a healthy carrier, with the more important issue being hepatitis C, although the veteran did not have significant liver function abnormalities. This conclusion is supported by the February 2000 liver biopsy findings of hepatitis C, and VA outpatient treatment (VAOPT) notes of hepatitis C without mention of hepatitis B in November 2004, December 2004, and May 2005. A March 2004 VAOPT note indicated that the veteran tested negative for hepatitis B surface antibody. However, at the August 2002 VA examination, the veteran had serum markers for hepatitis A, B, and C. The veteran denied drug use, stating that the SMRs were in error, and the VA examiner stated, "If the veteran did in fact take drugs intravenously, it is more likely than not that he had hepatitis B and/or a diagnosis at that time which would be called non A non B hepatitis which is now clear cut hepatitis C." The VA examiner noted that the veteran had blood transfusions in 1971 and 1972 from which he might have gotten hepatitis B and/or C. He concluded that it is not clear cut what the veteran had in service, and that it was more than likely that the veteran obtained hepatitis B and/or C after blood transfusions for his facial surgeries. The Board notes that neither the facial surgeries referred to by the August 2002 VA examiner nor any other surgeries or documents indicate that the veteran has ever received blood transfusions at any time. These include the SMRs, the November 1973 VA mandibular subapical osteotomy operation report indicating estimated blood loss of 300 ccs, and the March 1974 VA horizontal sliding augmentation genioplasty indicating estimated blood loss of 150 ccs. Thus, the August 2002 VA examiner's opinion does not constitute competent, probative evidence because it was unsupported by the evidence and in fact mischaracterized the evidence. See Black v. Brown, 5 Vet. App. 177, 180 (1995) (a medical opinion is inadequate when it is unsupported by clinical evidence); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). In addition, the veteran's January 2005 statement in response to the AMC's request for information regarding any blood transfusions indicated only that the veteran had no blood transfusions prior to service, and did not indicate any transfusions during or after service. Thus, to the extent that the positive hepatitis B serum test at the August 2002 VA examination indicates that the veteran has a hepatitis B disability, this disability did not arise for many years after service and the evidence reflects that it is not otherwise related to the hepatitis that the veteran had in service. As to the veteran's hepatitis C, should he desire to claim service connection for this disorder, the matter is referred to the RO for appropriate development and consideration. The preponderance of the competent, probative evidence of record thus reflects that the veteran did not have chronic hepatitis B in service, to the extent he has this disorder it did not arise for many years thereafter, and it is not otherwise related to service. The benefit-of-the-doubt doctrine is therefore not for application, and the claim for service connection for hepatitis B must be denied. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2005); Alemany v. Brown, 9 Vet. App. 518, 519-20 (1996). ORDER The claim for service connection for hepatitis B is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals The VET asked for hep B. They denied him for B .He didn't have a nexus. They gave him one of theirs. Not a very favorable nexus. Just Claim Hepatitis. No ABCDEF stuff. Just hep. Don't let them figure it out. Figure it out yourself and tell them to read your Doctor's nexus.

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Date: 08/21/09

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Date: 08/21/09

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