Citation Nr: 0003907 Decision Date: 02/15/00 Archive Date: 02/23/00 DOCKET NO. 96-47 137 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD J.M. Daley, Associate Counsel INTRODUCTION The veteran had active service from January 1971 to January 1973. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), located in Los Angeles, California. FINDING OF FACT The veteran has presented competent evidence of hepatitis C that has plausibly been related to service in Korea during the Vietnam era. CONCLUSION OF LAW The claim of entitlement to service connection for hepatitis C is well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION Pertinent Regulations Service connection In order to establish service connection for a claimed disability the facts must demonstrate that a disease or injury resulting in current disability was incurred in the active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Where there is a 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. 38 C.F.R. § 3.303(b). This rule does not mean that any manifestation in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The chronicity provision of 38 C.F.R. § 3.303(b) is applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under the Court's case law, lay observation is competent. If the chronicity provision is not applicable, a claim may still be well grounded if (1) the condition is observed during service, (2) continuity of symptomatology is demonstrated thereafter and (3) competent evidence relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 489 (1997); see also Grottveit v. Brown, 5 Vet. App. 91, 93 (1993) (where the issue involves questions of medical diagnosis or an opinion as to medical causation, competent medical evidence is required). Service connection may also be granted for a 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). Well Groundedness The threshold question to be answered in the veteran's appeal with respect to claims of service connection is whether he has presented evidence of well-grounded claims. "[A] person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded." 38 U.S.C.A. § 5107(a); Carbino v. Gober, 10 Vet. App. 507 (1997); Anderson v. Brown, 9 Vet. App. 542, 545 (1996). A well-grounded claim is "a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of [section 5107(a)]." Murphy v. Derwinski, 1 Vet. App. 79, 81 (1990). In Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992), the Court held that a claim must be accompanied by supportive evidence and that such evidence "must 'justify a belief by a fair and impartial individual' that the claim is plausible." For a claim to be well grounded, there generally must be (1) a medical diagnosis of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. See Anderson, supra; Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table). In any case, a claim for service-connection for a disability must be accompanied by evidence which establishes that the claimant currently has the claimed disability. Absent proof of a present disability there can be no valid claim. See, e.g., Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). Medical evidence is required to prove the existence of a current disability and to fulfill the nexus requirement. Lay or medical evidence, as appropriate, may be used to substantiate service incurrence. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). For the purposes of determining whether this claim is well grounded, the Board must presume the truthfulness of the evidence, "except when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion." King v. Brown, 5 Vet. App. 19, 21 (1993). Analysis The veteran in this case has clearly been diagnosed with hepatitis C. Moreover, there is medical evidence that plausibly relates such to service. Dr. J.H. cited to the veteran's lack of other likely exposure such as a blood transfusion or drug use. The textual information submitted by the veteran and Dr. J.H. includes note that there is a high incidence of hepatitis C in Southeast Asian areas such as Korea, where the veteran was stationed. See Mattern v. West, 12 Vet. App. 222 (1999). The physicians, Drs. J.H. and F.S., also noted that the prognosis and advanced stage of the veteran's hepatitis support the conclusion that he contracted that disease as much as 20 or more years ago, coincident with the time he was in Korea. Accordingly, the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107. To that extent, the appeal is granted. ORDER The claim of entitlement to service connection for hepatitis C is well grounded. REMAND The fulfillment of the veteran's burden to submit evidence of well-grounded claim has triggered VA's duty to assist and develop. Peters v. Brown, 6 Vet. App. 540, 542 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). There is no reference to hepatitis is shown in service medical records or until many years thereafter. In a letter dated in September 1995, Dr. J.H. reported treating the veteran in June 1994, at which time a diagnosis of chronic active hepatitis C with early cirrhosis and 3-4+ esophageal varices was made. Dr. J.H.'s medical records pertaining to the veteran have not been obtained. In a letter dated in December 1995, Dr. F.S. opined that the veteran had documented hepatitis C with cirrhosis and esophageal varices and that it was "unclear as to the exact time when the patient contracted his hepatitis C, but we believe that it was many years ago, perhaps, as long as 20-25 years ago." Dr. F. S.'s medical records also have not been obtained. In a personal statement received in July 1996, the veteran argued that he contracted hepatitis while stated in Korea and reported having had numerous sexual affairs while stationed there. He reported post-service relationships with three women all purportedly negative for hepatitis, denied intravenous drug use, and denied blood transfusions until recently. The veteran has submitted medical abstracts and similar literature, indicating, in part, that the most common source of transmission is by blood transfusion or intravenous drug use, although in up to 50 percent of the cases the cause is unknown. Some of the submitted texts indicate transmission through sexual relations, although there is conflicting evidence as to the prevalence of infection by that method. One text, dated in April 1995, sets out that there were 400 million chronic carriers of hepatitis C in the world, " with most of these located in the Far East." However, that text does not address the prevalence of hepatitis C in the Far East in the early 1970s, when the veteran was stationed there. In January 1997, the veteran testified at a personal hearing that prior to being diagnosed with hepatitis C he had had lower abdominal pain and was seeing "just an M.D." The identity of that doctor must be ascertained and his records requested Where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order to fulfill the statutory duty to assist under 38 U.S.C.A. § 5107(b) (West 1991). Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). Inasmuch as relevant medical records are not associated with the claims file, they must be obtained to ensure proper adjudication of the claim. Accordingly, this claim is returned to the RO for the following development: 1. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). Medical evidence or opinion relating his hepatitis C to service, with an explanation of the basis of the opinion and support from statistics or other scientific data, would be helpful. 2. With the veteran's consent, the RO should ask F.S., M.D., of Tampa, Florida, and J.H., M.D., associated with the University of California Irvine Medical Center, for a copy of the veteran's complete medical records, including any letters of referral from other physicians and the initial patient history, reports of any diagnostic tests or procedures, any laboratory reports, and any correspondence which is in any way relevant to the veteran's hepatitis. The physicians should specifically be asked to identify the genotype and subtype of the veteran's hepatitis C, if determined, and to provide the results of any genetic testing, polymerase chain reaction testing, or the like. Also, the RO should ascertain whether any tissue/blood samples were obtained in connection with the laparoscopic biopsy or other procedures, and, if so, obtain both the laboratory results and the actual specimen(s) for association with the claims file so that if deemed necessary such can be referred for an outside medical opinion. Any specimen obtained will be returned to the provider upon completion of this appeal. Dr. J.H. should be asked to state the method by which he believes that the veteran became infected while in Korea, and to provide any statistics or other scientific data to support his opinion that the veteran's "very likely" acquired his virus in Korea, to include data on the incidence of female to male sexual transmission of hepatitis C in short term relationships, the incidence of non-A non-B hepatitis in the early 1970s in South Korea, and the incidence of infection by unknown methods of transmission. The RO should also request copies of the veteran's complete records, inpatient and outpatient, to include the results of any diagnostic tests or studies, and any laboratory results, from Mission Hospital, University Community Hospital and The Ohio State University Hosptial for which the veteran has provided authorizations that should be updated if necessary. If indicated, the veteran should be asked to provide more specific information regarding his treatment at those facilities, to include dates, the departments at which he was seen, whether he was an inpatient or outpatient, etc. The RO's attempts to obtain the veteran's records should be documented in the claims file. 3. The RO should obtain the name and address of the physician to whom the veteran initially complained of abdominal pain (referred to as "just an M.D." at his hearing) that eventually led to the diagnosis of hepatitis, and then request a copy of the veteran's complete medical records, including the results of any laboratory tests, from the time the veteran was first seen by that doctor. These records should include any medical or other history given by the veteran. Also, the veteran should be asked to identify when and where he underwent the blood transfusion referred to in the claims folder. The RO should then obtain the veteran's complete medical records (not just those related to the transfusion) from the facility where the transfusion was performed and from the doctor who was treating the veteran at that time. 4. After the development requested above has been completed to the extent possible, the RO should again review the record to ensure that it is adequate for appellate review and then readjudicate the claim. The RO is advised that where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance, and further remand will be mandated. Stegall v. West, 11 Vet. App. 268 (1998). If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case, including any specimens obtained, should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The veteran need take no action until otherwise notified. 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 Court 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. JANE E. SHARP Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1999).