Citation Nr: 0001814 Decision Date: 01/21/00 Archive Date: 01/28/00 DOCKET NO. 95-12 368 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney at Law ATTORNEY FOR THE BOARD Theresa M. Catino, Counsel INTRODUCTION The veteran served on active military duty from November 1967 to October 1969. This case was before the Board of Veterans' Appeals (Board) in December 1998. At that time, the Board denied a claim of entitlement to service connection for hepatitis C and remanded to the regional office (RO) a rating issue regarding the veteran's service-connected post-traumatic stress disorder. In denying the claim of service connection for hepatitis C, the Board concluded that the claim was not well grounded because no competent medical evidence had been presented linking hepatitis C to the veteran's military service or event(s) coincident therewith, such as claimed intravenous drug use. The veteran appealed the Board's decision, and in August 1999, a joint motion was filed by the parties to the appeal. It was agreed upon by the parties to the appeal that the Board had denied the claim of service connection for hepatitis C on the grounds that service connection may not be awarded for the purpose of compensation benefits for disability resulting from substance abuse. The United States Court of Appeals for Veterans Claims (Court) vacated that part of the Board's December 1998 decision which denied service connection for hepatitis C. The Court remanded this issue to the Board for re-adjudication. In addition, the Court dismissed the appeal of the rating claim for post-traumatic stress disorder because the Board had not yet entered a final decision on the issue. FINDING OF FACT The veteran has been diagnosed with hepatitis C that has been linked to his military service. CONCLUSION OF LAW The claim of entitlement to service connection for hepatitis C is well grounded. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.303 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION The threshold question that must be resolved is whether the veteran has presented evidence that his claim is well grounded. See 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1998); Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). A well-grounded claim is a plausible claim, one that appears to be meritorious. See Murphy, 1 Vet.App. at 81. An allegation that a disorder is service connected is not sufficient; the veteran must submit evidence in support of the claim that would "justify a belief by a fair and impartial individual that the claim is plausible." See 38 U.S.C.A. § 5107(a); Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). The quality and quantity of the evidence required to meet this statutory burden will depend upon the issue presented by the claim. Grottveit v. Brown, 5 Vet.App. 91, 92-93 (1993). Generally, in order for a claim of service connection to be well grounded, there must be proof of present disability. Brammer v. Derwinski, 3 Vet.App. 223 (1992); see also Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992) (requiring, for a well-grounded claim, competent evidence that the veteran currently has the claimed disability). In addition, there must also be evidence of incurrence or aggravation of a disease or injury in service. Caluza v. Brown, 7 Vet.App. 498 (1995). The veteran must also submit medical evidence of a nexus between the in-service disease or injury and current disability. Id. Competent evidence demonstrating that a disability is due to, or was aggravated by, an already service-connected disability will also make a claim of service connection well grounded. 38 C.F.R. § 3.310(a). Where the issue is factual in nature (e.g., whether an incident or injury occurred in service), competent lay testimony, including the veteran's testimony, may constitute sufficient evidence to establish a well-grounded claim; however, if the determinative issue is one of medical etiology or a medical diagnosis, competent medical evidence must be submitted to make the claim well grounded. Grottveit v. Brown, 5 Vet.App. 91, 93 (1993); Layno v. Brown, 6 Vet.App. 465, 469 (1994). A lay person is not competent to make a medical diagnosis or to relate a medical disorder to a specific cause. Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992). In the August 1999 motion filed by the parties to the appeal of the Board's December 1998 denial, the Board was instructed to permit the veteran, on remand, an opportunity to submit additional evidence and argument in accordance with Quarles v. Derwinski, 3 Vet.App. 129, 141 (1992). Pursuant to this instruction, the Board, by a November 1999 letter, informed the veteran's attorney of the opportunity to submit additional argument and evidence in support of the appeal. The following month, the veteran's attorney submitted a copy of a letter from a private physician. In this December 1999 letter, the private physician explained that the veteran has hepatitis C. The physician initially stated simply that the veteran's hepatitis C "probably stems from an IV drug habit that he developed while in Vietnam." The physician concluded by saying that "the hepatitis C is secondary to [the veteran's] IV drug use . . . [and] that the PTSD and IV drug abuse stem from his experience in Vietnam." A reasonable reading of the private physician's letter is that the veteran's hepatitis C is attributable to in-service events, i.e., intravenous drug use that started while the veteran was in Vietnam. Consequently, the Board concludes that the veteran's claim of service connection for hepatitis C is well grounded. See Caluza, supra. In short, this medical opinion provides evidence of current disability and nexus to military service, which evidence is required to make the claim well grounded. ORDER The claim of service connection for hepatitis C is well grounded; to this extent, the appeal is granted. REMAND As noted above, a private physician stated in a December 1999 letter that the veteran's hepatitis C "probably stems from an IV drug habit that he developed while in Vietnam." Later in the same letter, the physician reported that, in his opinion, "the hepatitis C is secondary to [the veteran's] IV drug use . . . [and] that the PTSD and IV drug abuse stem from [the veteran's] experience in Vietnam." The Board also notes that, in an August 1993 medical record, a physician's assistant stated that the veteran's liver function tests were still elevated and that the studies would be repeated in six months. In addition, the assistant explained that the veteran's medical history was positive for hepatitis C, which "probably [originated from] intravenous heroin usage during the Vietnam war." According to this medical report, the veteran stated that he had not used drugs "since then." Significantly, neither of the medical professionals who provided an opinion or relevant history as to the onset of hepatitis C specifically stated that he had had access to the veteran's claims folder, especially pertinent medical records. Review of such records is particularly important in this case where the veteran himself has provided different statements regarding the extent and onset of intravenous drug use. In this regard, the Board notes that the service medical records are negative for complaints of, treatment for, or findings of hepatitis. Furthermore, at the separation examination, which was conducted in October 1969, the veteran denied having at that time, or ever having had, a drug or narcotic habit. A VA general medical examination conducted in April 1970 revealed no abnormalities of the veteran's liver. At a VA psychiatric evaluation also completed at that time, the veteran did not mention ever having had a drug abuse problem. Subsequently, at a three-day VA hospitalization in April 1972 for a right arm abscess, the veteran reported that he had a history of heroin use off and on for the previous three to four years, which appears to place the onset of heroin use during military service. According to an undated record from this same medical facility, the veteran was found to be "manipulative." In particular, discrepancies in terms of the length of time and the extent of the veteran's addiction to heroin were found. It was noted that the veteran said whatever he thought was the right answer. In May 1973, the veteran reported having a heroin addiction with multiple drug abuse since 1970, which appears to place the onset of such drug use after the veteran's separation from service. The first competent evidence of hepatitis C is dated in June 1992. In a letter dated at that time, a physician at a private medical facility informed the veteran that several tests had been completed on his blood donation of that month and that these studies showed that he had an infection with hepatitis C-type virus. The physician recommended to the veteran that he contact his own doctor and arrange for any additional evaluations deemed necessary. A private medical report dated three months later, in September 1992, confirmed the assessment of elevated liver function tests and hepatitis C. At this treatment session, the veteran stated that he used intravenous drugs (heroin) 15 years earlier, that he had been snorting cocaine weekly for the previous five years. He reported that he had not had any blood transfusions, that he had never had jaundice, and that a physician had made him aware of elevated liver function tests for "at least five years." At a treatment session conducted two months later, the veteran's liver function tests remained significantly elevated and, according to the examining physician, "probably have been so for the past several years." In a December 1992 medical record, a private physician expressed his opinion that the veteran's main liver problem was alcohol abuse, although "probably some of his liver damage is . . . hepatitis C induced." At a VA post-traumatic stress disorder examination conducted in March 1994, the veteran asserted that he contracted hepatitis C in Vietnam when he was "shooting up drugs in his veins." The veteran reported that he became alcohol dependent approximately ten years prior to the post-traumatic stress disorder evaluation, but that his alcoholism had been "long since in remission." Additionally, the veteran stated that he had tried just about all drugs, but had been in remission for approximately five to ten years. Subsequently prepared VA medical records indicate that the veteran had not remained in remission in terms of his alcoholism and drug addiction. Specifically, at a November 1994 evaluation, the veteran reported that both he and his wife were drinking alcohol and using cocaine. Additionally, the veteran stated that 20 years prior to the evaluation he was using barbiturates and heroin and that he currently drinks alcohol, uses cocaine, and takes Valium occasionally. The examiner provided Axis I diagnoses of alcohol dependence and cocaine abuse as well as an Axis III diagnosis of hepatitis C. Despite the veteran's occasional reports of in-service drug use, the service medical records do not provide any evidence confirming such an assertion and also do not include competent evidence of hepatitis. As noted above, at the separation examination which was conducted in October 1969, the veteran denied having at that time, or ever having had, a drug or narcotic habit. Moreover, the first competent evidence of hepatitis was not until June 1992, when the veteran was notified that blood tests completed that month showed an infection with the hepatitis C-type virus. Although a physician recently provided an opinion of a relationship between hepatitis C and drug use during military service, the evidence described above raises certain questions regarding the bases for such a conclusion, especially in light of the absence of any indication of drug use in service medical records and the absence of a showing of hepatitis until about 1992. Even some accounts provided by the veteran, such as in May 1973, tend to show that drug use or addiction did not begin until after the veteran's separation from active military service. Consequently, the medical opinions that the veteran has hepatitis C as a result of in-service drug use appear to have been based solely upon the veteran's own reports of in-service events, without consideration of other evidence suggesting otherwise. In order to obtain an opinion as to the onset of hepatitis C which is founded on a review of all the evidence of record, a remand is required. For the reasons stated, this case is REMANDED to the RO for the following actions: 1. The veteran should be given an opportunity to supplement the record on appeal. The RO should assist the veteran as necessary in accordance with 38 C.F.R. § 3.159 (1999). 2. Thereafter, the veteran should be afforded a VA examination to determine the presence and etiology of hepatitis C. The claims folder and a copy of this remand must be made available to the examiner, the receipt of which should be acknowledged in the examination report. After reviewing the file and obtaining a detailed history from the veteran, the examiner should provide an opinion as to the medical probabilities that any hepatitis C found on examination is attributable to the veteran's service (e.g., to in-service events such as those that may have precipitated intravenous drug use), to already service-connected post-traumatic stress disorder, or to some other cause, including, but not limited to, blood transfusions. Accepted medical principles that might affect the examiner's opinion regarding the time of onset in relation to the first indications of liver dysfunction should be considered. If the examiner determines that the veteran has hepatitis C and that this disorder was caused by drug use, the examiner should express his opinion as to the medical probabilities that such drug use either began during service or was the result of already service-connected disability. A complete rationale should be provided for all opinions reached. Any opinion provided should be explained in light of the opinions already of record that hepatitis C is the result of intravenous drug use that stems from the veteran's service in Vietnam. 3. The RO should thereafter re- adjudicate the issue of entitlement to service connection for hepatitis C. If the benefit sought on appeal is not granted, the veteran and his attorney should be provided with a supplemental statement of the case. After the veteran has been given opportunity to respond to the supplemental statement of the case, the case should be returned to the Board for further appellate consideration. The veteran need take no action until he is informed, but he may furnish additional evidence and argument while the case is in remand status. Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992); Booth v. Brown, 8 Vet. App. 109 (1995); and Kutscherousky v. West, 12 Vet. App. 369 (1999). The purpose of this remand is to comply with governing adjudicative procedures and to obtain clarifying evidence. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. MARK F. HALSEY Member, Board of Veterans' Appeals