BVA9505016 DOCKET NO. 92-12 354 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for the residuals of viral hepatitis, including end stage liver disease and the post- operative residuals of a liver transplant. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. L. Gann, Associate Counsel INTRODUCTION The veteran had active service from April 1969 to November 1970. He served in the Republic of Vietnam for almost one year and two months. This appeal arises from an August 1990 rating decision of the Boston, Massachusetts, Regional Office (RO) which denied entitlement to the veteran's post-operative residuals of a liver transplant, resulting from end stage liver disease. In June 1993, the Board of Veterans' Appeals (Board) remanded the case for additional evidentiary development, and the case was returned to the Board in January 1995 and docketed in February 1995. The veteran's appeal is now ready for review and consideration. CONTENTIONS OF APPELLANT ON APPEAL The veteran essentially contends that he incurred chronic viral hepatitis during his 14 months of service in the Republic of Vietnam. He avers that this disease process caused the development of end-stage liver disease which was discovered in 1988, and ultimately necessitated a liver transplantation procedure in May 1990. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence supports a grant of service connection for the residuals of chronic viral hepatitis C, including a liver transplant secondary to end stage liver disease. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. Service medical records are devoid of any diagnosis of or treatment for hepatitis. These records do indicate that the veteran was treated on several occasions for fevers of undetermined origin, chills, and generalized myalgia. Testing for suspected malaria produced negative results. At service separation, the veteran indicated that he was in good health. 3. In July 1971, approximately eight months after service separation, the veteran was treated for recurrent fever, weakness, "black out spells," abdominal pain, and poor appetite, resulting in weight loss. 4. During a routine physical examination in 1988, it was noted that the veteran had abnormal liver functioning, and testing was positive for hepatitis C antibodies. Liver biopsies in 1990 revealed the presence of severe end-stage liver disease, and he underwent a liver transplantation procedure in May 1990. 5. Dr. D. Green, a Department of Veterans Affairs (VA) specialist in gastroenterology, and Dr. D. Lewis, the treating specialist in liver transplantation and hepatobiliary surgery, each opine that the veteran's end stage liver disease is the result of chronic hepatitis C which was most likely contracted during his Vietnam service. CONCLUSION OF LAW Chronic hepatitis C was incurred in service, and the veteran's end stage liver disease and eventual liver transplant are proximately due to or the result of this chronic disease process. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107(a) (West 1991); 38 C.F.R. §§ 3.303(d), 3.307, 3.309, 3.310(a) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991). A well grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). We are also satisfied that all relevant facts have been properly developed so that further assistance to the veteran is not required. Service connection may be established for disability resulting from personal injury or disease incurred in or aggravated by service. 38 U.S.C.A. § 1110, 1131 (West 1991). Where the condition is hepatitis, service connection shall be granted if this disease either arose during service or became manifest to a compensable degree within one year of service separation. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). Regulations also provide that service connection may be established where all the evidence of record, including that pertinent to service, demonstrates that the veteran's current disability was incurred in service. 38 C.F.R. § 3.303(d) (1994). A disability which is proximately due to or the result of a service-connected disease or injury shall also be service- connected. 38 C.F.R. § 3.310(a) (1994). The veteran contends that his 1990 liver transplant procedure was the proximate result of residual end-stage liver disease arising from chronic viral hepatitis incurred during his Vietnam service. We first note that his service medical records contain no diagnosis of, or treatment for, viral hepatitis. In fact, hepatitis was not diagnosed until 1988, more than 17 years after service separation, when blood tests performed during a physical examination found abnormal liver functioning, and revealed the presence of HCV (hepatitis C) antibodies. The service medical records do indicate, however, that the veteran was treated for various manifestations for which no specific diagnosis was made. In October 1970, the veteran sought treatment of a fever, lasting for approximately five days, and for diarrhea. Blood cultures were negative. He again complained in November 1970 of a fever and gastrointestinal disturbance, as well as rhinorrhea, a dry cough, and generalized myalgia. Although treating physicians suspected the presence of malaria, tests were again negative. Abdominal palpation revealed no masses, organomegaly, or tenderness. After three days, his fever ended, and he was again feeling well. The diagnosis was a probable upper respiratory infection, as all malaria smears were negative. The veteran's service separation examination found him to be in good health. In July 1971, the veteran sought treatment from Dr. F. Hunt, of the Group Medical Practice in Santa Rosa, New Mexico. He claimed that he suffered from malaria during service in October and November 1970. Upon return to the United States after service, he had continued to suffer from recurrent fever, weakness, and poor appetite. He had lost approximately 15 pounds which he could not regain. He also complained of daily abdominal pain, usually after eating, and "black out spells" which occurred several times a day. The examination was essentially normal, except the possibility of a slightly enlarged spleen, and generalized abdominal tenderness. The diagnoses were malaria by history, black out spells for which the cause was unclear, and a possible peptic ulcer. Further pertinent evidence is not shown until March 1988, when the veteran underwent a routine physical examination from Dr. R. Newman of the Harvard Community Health Plan. He noted a six- month history of abdominal pain in the right upper quadrant occurring within minutes of eating, with discomfort lasting for approximately 20 to 30 seconds. The veteran indicated that he was a regular user of alcohol, drinking approximately five six- packs of beer per week for 20 years. Blood tests revealed that the veteran was hepatitis antibody positive. An August 1988 liver scan found severe dysfunction with increased spleen/bone marrow uptake. A CT scan indicated that the spleen was greatly enlarged above normal, with liver enlargement and a "confusing" soft tissue density in the pancreas. Over the course of the next two years, it appears that the veteran suffered from gastrointestinal bleeding, weight loss, and encephalopathy. In May 1990, the veteran's liver disease, diagnosed as cirrhosis with mild to moderate chronic inflammation of the fibrous septa, necessitated a liver transplant, which was performed at the New England Deaconess Hospital at Harvard University in Boston. Preoperative and postoperative care was provided by Dr. D. Lewis, an instructor in surgery at Harvard, and a specialist in hepatobiliary surgery and liver transplantation. In a letter dated in April 1991, Dr. Lewis indicated that he had been treating the veteran since February 1990 for complications arising from end-stage liver disease resulting from viral hepatitis, which ultimately necessitated an orthotopic liver transplant in May 1990. Upon his review of the "scanty" service medical records he found a "strong possibility" that the symptoms from which the veteran suffered during his tour of duty in Vietnam indicated the initial presence of viral hepatitis. Dr. Lewis noted that the "time course for viral hepatitis to develop into end stage liver disease, requiring transplantation, is variable but generally occurs between ten and thirty years after the time of viral exposure." Therefore in his opinion the veteran's liver disease "may well have been contracted during his time in South East Asia." A June 1991 Department of Veterans Affairs (VA) examination noted the history of a liver transplant in May 1990, after a two year history of gastrointestinal disturbances and weight loss caused by a chronic hepatitis C infection. Subsequent to his liver transplant, the veteran was successfully treated for graft rejection. Subjectively, his appetite was good, but he suffered from fluctuations in energy and intermittent arthralgia. The diagnosis was status post liver transplant with a history of chronic hepatitis. After a VA hearing officer denied the veteran's claim in December 1991, Dr. Lewis again submitted a letter, dated in February 1992. He was concerned that the VA had not contacted him for additional medical information, and reiterated "with great certainty" that the veteran's viral hepatitis, which eventually required a liver transplant, was contracted in Vietnam. He noted that this disease is "indigenous to that area, without any other significant history that would suggest at any other time he had hepatitis." Dr. Lewis thereafter submitted another letter in July 1993, at which time he noted that the 1988 treatment records from the Harvard Community Health Plan, which initially indicated that the veteran was positive for hepatitis B antibodies, were probably transcribed in error. He unequivocally stated that At this time nor any time in the past has [the veteran] had any evidence of hepatitis B. . . . Having performed [the veteran's] liver transplant, followed him postoperatively, and from the experience of ten years of liver transplant (sic) at the Deaconess Hospital, it is our collective opinion that his liver disease was post viral hepatitis in origin, that alcohol did not play any significant role in the etiology of his liver failure, and finally that it is likely that he incurred the viral hepatitis while in active service in the Republic of Vietnam in late 1969 or 1970. On remand, the Board requested that a VA physician perform a comprehensive examination of the veteran and review of the claims folder. This evaluation was performed in December 1993 by Dr. R. Green, a specialist in gastroenterology at the VA Medical Center in Brockton and West Roxbury, Massachusetts, as well as a practicing gastroenterologist at the Brigham and Women's Hospital in Boston. Dr. Green provided a thorough overview of the veteran's medical history pursuant to subjective statements and objective review of the case file. Based upon his examination of the record and of the veteran, it was Dr. Green's assessment that The etiology of [the veteran's] liver disease is HCV [hepatitis C] infection, there is no evidence for hepatitis B infection. Although his alcohol consumption prior to his diagnosis of hepatitis may have been an additive insult to his liver injury, the primary etiology of his cirrhosis appears to be HCV infection, rather than ethanol. It is not possible to definitively determine when or where [the veteran] acquired his HCV infection. He was hospitalized in 1970 and 1971 for fevers, constitutional symptoms and respiratory symptoms, and the presence of malarial infection was investigated. There is no objective evidence to support the diagnosis of malaria. Liver function tests were not obtained during these hospitalizations, and there is no documentation that he was jaundiced, so there is no strong evidence to support the contention that the had acute hepatitis. Nonetheless, cirrhosis due to chronic hepatitis C often occurs without a demonstrable history of acute hepatitis. The absence of documented acute hepatitis, therefore, is not useful to exclude the possibility that [the veteran] acquired HCV infection while in the United States Army. [The veteran] developed end-stage cirrhosis, necessitating liver transplantation, approximately twenty years after his military service. If the initial HCV infection were acquired in approximately 1970, then this temporal course is quite consistent with the nature history of the progression of hepatitis C to cirrhosis. He denied any history of blood transfusions or intravenous drug abuse, . . . which are high risk activities for transmission of HCV. . . . In addition, heterosexual intercourse with prostitutes may be a mode of transmission of HCV infection, although the risk appears to be considerably lower than that posed by blood to blood transmission. Finally, approximately forty percent of patients with hepatitis C have no demonstrable risk factor for acquiring the disease, and the mode of transmission of HCV in these individuals remains elusive. . . . It is quite possible, and in my opinion likely, that he acquired hepatitis C .while in the United States Army, and the temporal course of his progression is consistent, although not pathognomonic, for acquisition of HCV while he was in military service. However, it is not possible to state definitively when his HCV infection was acquired, nor to exclude the possibility that he acquired it either before or after his military service. Dr. Lewis thereafter submitted additional copies of the veteran's 1990 preoperative liver biopsy reports in June 1994, accompanied by a letter stating the biopsy findings of cirrhosis with chronic inflammation of the fibros-septa is a process consistent with end stage liver disease with the primary etiology of hepatitis C. He concluded that this evidence is proof of a hepatitis C infection, which was temporally contracted during the veteran's time of active service in Vietnam. In July 1994, Dr. Green submitted a short letter reiterating his opinion that the veteran's development of end stage liver disease and the timing of his liver transplantation is "consistent with the acquisition of HCV infection approximately twenty years prior." He indicated that while the progression of chronic liver disease from HCV is variable, "the development of cirrhosis twenty years after HCV infection is consistent with the natural history of this disease." We first note that the overwhelming weight of the evidence supports the conclusion that the veteran's liver transplant was the ultimate result of severe end stage liver disease. Moreover, it is the consensus of both Dr. Lewis and Dr. Green that this end stage liver disease is the direct residual of a chronic hepatitis C infection. Although Dr. Green did acknowledge that the veteran had a considerable history of ethanol use, he unequivocally stated that this use may have been an "additive insult," but was not the primary etiology for the development of liver cirrhosis. Thus the sole issue remaining before us is whether the veteran's hepatitis C infection was actually incurred during, or as a result of, his service. Although our review of the record reveals the presence of negative evidence weighing against the veteran's claim for service connection, we conclude that a relative balance of positive evidence in support of his claim has also been presented, such that all benefit of the doubt must be accorded to the veteran's claim. Thus we find that service connection is warranted for chronic hepatitis C and its residuals including the development of end stage liver disease and eventual liver transplant. It is not wholly clear from the veteran's service medical records that he actually suffered from chronic hepatitis in service. Although he suffered from a recurrent fever and abdominal distress during October and November 1970, accompanied by upper respiratory symptomatology, these are non-specific symptoms which could be attributed to many different acute and/or chronic illnesses. Moreover, the veteran reported that he was in good health at the time of service separation. The July 1971 private medical report indicates continued symptoms of gastrointestinal problems, fatigue, fever, and weakness, as well as the possibility of spleen enlargement. Once again, however, no definitive diagnosis was actually associated with the veteran's symptomatology. Moreover, no further medical treatment for any manifestations associated with hepatitis, liver dysfunction, or even gastrointestinal disturbances is shown until 1988, more than 17 years after service separation. This absence of evidence clearly noting the presence of hepatitis either during service, or for so many years subsequent to service, clearly weighs against the veteran's claim. Equally compelling, however, are the numerous and detailed medical statements proffered both by Dr. Lewis, an undisputed expert in hepatobiliary disorders as well as the veteran's treating surgeon, and by Dr. Green, also a knowledgeable specialist in the area of gastrointestinal diseases. Both of these physicians generally conclude that the veteran's chronic hepatitis C more likely than not had its onset either in service, or within one year thereafter, and that this disease resulted in the insidious development of the severe end stage liver disease initially diagnosed in 1988. Dr. Green acknowledged in his December 1993 report that it was not possible to "definitively" state when the veteran's HCV infection was acquired, nor could he completely exclude the possibility that it was acquired either before or after service. Nevertheless, based upon his review of the entire claims folder, as well as a very comprehensive review of the veteran's medical history, he found the veteran's development of end stage liver disease and the timing of his need for a liver transplant to be consistent with the onset of HCV in 1970 or 1971. This same conclusion was echoed by Dr. Lewis, based upon his many years of experience with liver transplants and other types of hepatobiliary surgery. Moreover, we accord additional weight to Dr. Lewis' opinions, inasmuch as he is both the surgeon who performed the veteran's liver transplant, and the physician who has rendered follow-up treatment. Furthermore, he is an instructor in hepatobiliary surgery for a renowned medical university, and must be presumed to have specific knowledge and expertise on the most recent developments and findings in his field. We also accord additional weight to Dr. Green conclusions, particularly in light of the comprehensive, well-reasoned, well- researched, and well-written report which he provided. Although he admitted that he could not be absolutely certain that the veteran's HCV infection was acquired during service or within one year thereafter, he did offer specific explanations which assisted greatly in the Board's understanding of the nature of HCV infection. He noted that despite the absence of overt, acute HCV infectious symptomatology, an underlying chronic condition could have been present which caused the development of hepatic liver changes such as those found in the veteran. While blood to blood transmission, such as intravenous drug use and blood transfusion, is the greatest source of HCV infection, Dr. Green also noted that approximately forty percent of all HCV cases possessed no demonstrable risk factor for acquiring the disease, thus raising a question as to the mode of transmission. In light of this information, as well as his conclusion that the "timing" of the veteran's liver disease and the transplant in 1990 are consistent with the acquisition of HCV infection in approximately 1970, we find that Dr. Green's opinions arise to more than mere speculation. Inasmuch as the weight of Dr. Lewis' and Dr. Green's opinions are at least equal to that of any negative evidence presented, we must accord all benefit of the doubt to the veteran's contention that he incurred chronic hepatitis C during service, and that this disease proximately caused the development of end stage liver disease and necessitated a liver transplant in 1990. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 1991); 38 C.F.R. §§ 3.303(d), 3.307, 3.309, 3.310(a) (1994). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for the residuals of chronic hepatitis C, to include a liver transplant, secondary to end stage liver disease, is granted. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.