Citation Nr: 0723667 Decision Date: 08/01/07 Archive Date: 08/15/07 DOCKET NO. 04-32 535 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois 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 Thomas D. Jones, Counsel INTRODUCTION The veteran served on active duty from February 1967 to February 1970. Thereafter, between 1981 and 1993, the veteran had periods of inactive duty training and active duty for training as a member of the U.S. Army Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2003 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the veteran service connection for hepatitis C. The veteran subsequently initiated and perfected an appeal of this determination. In October 2005, he testified via videoconference before the undersigned Veterans Law Judge. FINDING OF FACT Competent evidence has been presented confirming a current diagnosis of hepatitis C which was as likely as not incurred during military service. CONCLUSION OF LAW The criteria for the award of service connection for hepatitis C have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran seeks service connection for hepatitis C. Service connection may be awarded for a current disability arising from a disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2006). As with any claim, when there is an approximate balance of positive and negative evidence regarding any matter material to the claim, the claimant shall be given the benefit of the doubt. 38 U.S.C.A. § 5107 (West 2002). The Board notes that a VA "Fast Letter" issued in June 2004 (Veterans Benefits Administration (VBA) Fast Letter 04-13, June 29, 2004) identified "key points" that included the fact that hepatitis C is spread primarily by contact with blood and blood products, with the highest prevalence of hepatitis C infection among those with repeated, direct percutaneous (through the skin) exposure to blood (i.e., intravenous drug users, recipients of blood transfusions before screening of the blood supply began in 1992, and hemophiliacs treated with clotting factor before 1987). In Fast Letter 04-13, it is noted that "occupational exposure to HCV [hepatitis C virus] may occur in the health care setting through accidental needle sticks. A veteran may have been exposed to HCV during the course of his or her duties as a military corpsman, a medical worker, or as a consequence of being a combat veteran." The Fast Letter indicates, in its Conclusion section, that the large majority of hepatitis C infections can be accounted for by known modes of transmission, primarily transfusion of blood products before 1992, and injection drug use. See also VBA All Station Letter 211B (98-110) November 30, 1998; VBA Training Letter 211A (01-02) April 17, 2001 (major risk factors for hepatitis C include IV drug use, blood transfusions before 1992, hemodialysis, intranasal cocaine, high-risk sexual activity, accidental exposure while a health care worker, and various kinds of percutaneous exposure such as tattoos, body piercing, acupuncture with non-sterile needles, shared toothbrushes or razor blades). VA has recognized that transmission of hepatitis C through jet injectors is "biologically plausible" and that it is essential that a report on which a determination of service connection is made include a discussion of all modes of transmission. VBA Fast Letter 04- 13, June 29, 2004. As an initial matter, the veteran has presented competent medical evidence of a current diagnosis of hepatitis C, confirmed via multiple blood tests. Hepatitis C was first diagnosed in approximately 1992 when the veteran, a frequent blood donor, was informed his donated blood tested positive for hepatitis C. In the absence of evidence to the contrary, the Board accepts a current diagnosis of hepatitis C as an established fact. Thus, the remaining question before the Board is whether this disease was incurred during active military service. The veteran alleges that he came in contact with blood on several occasions during military service. First, he stated that while at basic training, a single air-gun needle was used to inoculate multiple recruits, possibly resulting in shared blood and a hepatitis infection. He also stated that while in Vietnam, local civilians provided shaves and haircuts using unsterilized tools and that he shared razors with other soldiers, which also could have resulted in hepatitis infection, as he and fellow soldiers were frequently nicked or cut by the barbers, resulting in possible mixing of blood. The veteran has described the conditions in Vietnam as relatively basic, and soldiers such as himself, with frequent cuts and scrapes, could have been exposed to the blood and bodily fluids of others on many occasions. Finally, the veteran stated he was at a military firebase which came under attack, and he helped bring a wound soldier, bleeding profusely, to the medic's station. He suggested this incident was the most likely cause of his hepatitis C. The veteran's DD-214 and other service personnel records are negative for the Combat Infantryman's Badge, Purple Heart medal, or other awards indicative of combat service; thus, the presumptions afforded combat veterans are not warranted in the present case. See 38 U.S.C.A. § 1154(b) (West 2002). Nevertheless, the Board notes the fact the veteran served with the 101st Airborne Division, a division which participated in numerous combat operations during the Vietnam War albeit the veteran was apparently attached to the Headquarters and Headquarters Battery, and he was in Vietnam in January 1968, during the onset of the Tet Offensive. See service medical records dated in January 1968 and February 1968. The veteran's assertion of events during military service, including his alleged exposure to the blood of a wounded soldier, is at least plausible and consistent with the verified circumstances of his service. Further, service medical records show that the veteran received inoculations at the commencement of active duty in 1967, and in 1968 and 1969. In support of his claim, the veteran has submitted August 2003, August 2004, and October 2005 medical opinion statements from P.J.L., M.D., the veteran's treating physician. In his essentially similar statements, Dr. L. opined it was "at least as likely as not" that the veteran's hepatitis C was incurred either as a result of blood exposure in Vietnam or as a result of air-gun inoculations received during basic training. Dr. L. noted the veteran's post-service medical history was negative for any blood transfusions, intravenous drug use, tattoos, multiple sexual partners, or other risk factors. Thus, Dr. L. concluded the veteran's most likely date of infection with hepatitis C was during military service. In the August 2004 letter, Dr. L. stated that that he had been asked to clarify the results of his lab work obtained in 1990. He noted that on August 1, 1990, the veteran's hepatitis C antibody was documented as negative. He noted further, however, that this was a first generation anti-HCV test and sensitivity was poor. He stated that it was important to note that elevated enzymes were evident prior in 1989 in addition to the fact that the veteran did not have risk factors for contraction of the virus aside from the time he served in Vietnam. Also of record is a June 2004 VA medical examination report. The veteran again denied any post-service history of blood transfusions, intravenous drug use, tattoos, or other risk factors for hepatitis. The examiner noted the veteran was an annual blood donor from approximately 1986 to 1992, when he was informed he was positive for hepatitis C. The veteran's liver function began to deteriorate in 2000, and he had since developed cirrhosis. His hepatitis and cirrhosis are currently managed with regular medical check-ups. After examining the veteran and reviewing the medical history, the examiner stated the veteran's blood "was tested for hepatitis C in 1991 and 1992" and was "negative in 1991 and positive in 1992 when he contracted hepatitis C from an unknown cause." Thus, the examiner found it unlikely the veteran's hepatitis C was related to any risk factor noted during military service. Nevertheless, review of the evidence on file reflects no evidence of any blood tests in 1991 or 1992 to support the VA examiner's statements in the June 2004 examination report. The examiner appears to have speculated that when the veteran donated blood in 1991, it was tested for hepatitis C and was found negative. However, in the absence of evidence of such testing, the Board finds no factual basis to the assumption that the veteran was in fact tested for hepatitis C in 1991. Further, the Board notes that "[t]he first blood test for the specific hepatitis virus became available in 1990. However, no reliable test for screening blood donors was available until 1992, and it has only been since that time that all blood donations have been tested for the virus." See VBA Fast Letter 99-41, May 3, 1999. Thus, based on this information as well as the information provided by Dr. L. particularly in the August 2004 statement outlined above, the Board finds that the VA medical opinion is of limited probative weight in this case. After considering the totality of the record, the Board finds the evidence to be in relative equipoise. While the medical evidence does not demonstrate a diagnosis of hepatitis C prior to 1992, the Board finds the veteran to be a credible witness. Thus, his statements that he had no post-service hepatitis risk factors, including tattoos, blood transfusions, intravenous drug use, or multiple sexual partners, are presumed to be truthful and are clearly documented in the treatment records. Furthermore, the Board finds his statements that he was likely exposed to blood products in service to be consistent with the circumstances of his service. Further, he has submitted competent medical nexus evidence in this case. Therefore, affording the benefit of the doubt to the veteran, the Board finds it as likely as not that the veteran incurred hepatitis C during military service, and service connection for this disability is thus warranted. ORDER Entitlement to service connection for hepatitis C is granted. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs