Citation Nr: 0804757 Decision Date: 02/11/08 Archive Date: 02/20/08 DOCKET NO. 06-04 803 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and Appellant's Spouse ATTORNEY FOR THE BOARD Patricia A. Talpins, Associate Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a December 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas in which the RO reopened the appellant's previously denied claim of entitlement to service connection for hepatitis C but denied service connection for this disorder on the merits. The appellant, who had active service from January 1968 to January 1970, appealed that decision to the BVA. Thereafter, the appellant moved and his claims file was transferred to the RO in Roanoke, Virginia. The Roanoke RO issued the Statement of the Case and a Supplemental Statement of the Case in response to the appellant's July 2004 notice of disagreement; and the appellant then timely submitted a Substantive Appeal in February 2006. The Roanoke RO then certified the appellant's appeal to the Board for appellate review. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained. 2. An unappealed rating decision dated in March 2003 denied service connection for hepatitis C. 3. The evidence received since the March 2003 rating decision, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. 4. The more persuasive and credible evidence of record indicates that the appellant's currently diagnosed hepatitis C did not manifest in service and is not shown to be causally or etiologically related to any incident or injury in service. CONCLUSIONS OF LAW 1. A March 2003 rating decision that denied entitlement to service connection for hepatitis C is a final decision. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2007). 2. The evidence received subsequent to the March 2003 rating decision is new and material; and therefore the claim for service connection for hepatitis C is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2007). 3. Hepatitis C was not incurred in or aggravated during active service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. New and material evidence As a preliminary matter, the Board observes that the appellant's claim of entitlement to service connection for hepatitis C was previously considered and denied in rating decisions dated in March 2000 and March 2003. The appellant was provided notice of those decisions but did not appeal them. Therefore, those decisions represent final decisions. 38 U.S.C.A. § 7103(a) (West 2002); 38 C.F.R. §§ 20.1100(a), 20.1104 (2007). In May 2003, the appellant via his representative requested that his claim of entitlement to service connection for hepatitis C be reopened. See May 2003 letter ("Enclosed medical statement is submitted for consideration in reopening your March 19, 2003 rating decision . . ."). As a general rule, a claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to a claim that is final. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. Under 38 C.F.R. § 3.156(a), new evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. The evidence associated with the claims file since the March 2003 rating decision consists of two private medical nexus statements from the appellant's physician, a VA medical opinion and a VA addendum medical opinion. The RO determined that these records constituted new and material evidence. December 2003 rating decision. The Board agrees with the RO's determination, reopens the claim and will perform a de novo merits adjudication of the appellant's claim based on all the evidence of record. See 38 C.F.R. § 3.156(c); see also Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). B. The Veterans Claims Assistance Act With respect to the appellant's claim of entitlement to service connection for hepatitis C, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007). Prior to the adjudication of the appellant's claim, a letter dated in August 2003 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The appellant was aware that it was ultimately his responsibility to give VA any evidence pertaining to his claim. The August 2003 letter informed the appellant that additional information or evidence was needed to support his reopened service connection claim; and asked the appellant to send the information to VA. Pelegrini v. Principi, 18 Vet. App. 112 (2004)(Pelegrini II). The appellant's service medical records, VA treatment records and identified private medical records have been obtained, to the extent possible. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. The Board observes that the appellant was afforded a VA examination in May 2005 in connection with his claim. 38 C.F.R. § 3.159(c)(4). An addendum VA medical opinion was also associated with the claims file in October 2005. Lastly, the Board notes for the record that prior to the certification of the appellant's case, the RO notified the appellant of the Dingess/Hartman v. Nicholson case, to include an explanation of disability ratings and effective dates. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Regardless, since the Board has concluded that the preponderance of the evidence is against the appellant's claim of entitlement to service connection for hepatitis C, any questions as to the appropriate disability rating or effective date to be assigned to this claim are rendered moot, and no further notice is needed. Id. C. Service connection for hepatitis C In this case, the appellant asserts entitlement to service connection for hepatitis C on the basis of several incidents in service during which he contends he may have been exposed to the hepatitis C virus. See January 2007 BVA hearing transcript. Specifically, the appellant reports that he injured his hand twice in service and that he may have been infected with the hepatitis C virus as a result of those injuries. Id., p. 3. He reports being involved in several fist-fights during service in which blood was exchanged that he believes could have been contaminated with hepatitis C. Id., pgs. 3, 8-13. In addition, the appellant reports getting a tattoo in service that may have been placed on him with hepatitis C infected needles. Id. Lastly, the appellant argues that he may have been exposed to hepatitis C via air gun inoculations he was required to receive in service. Id.; September 2002 statement. During his BVA hearing, the appellant denied receiving a blood transfusion post-service and also testified that he was never an intravenous drug user. Id. While viewing the evidence in the light most favorable to the appellant in this case, the Board finds that the preponderance of the evidence is against the appellant's claim. As such, the appeal must be denied. Applicable law provides that service connection will be granted if it is shown that a veteran has a disability resulting from an injury or disease contracted in the line of duty or for aggravation of a preexisting injury or disease. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prove service connection, the record must contain: (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances, lay testimony, of an in-service incurrence or aggravation of an injury or disease and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Pond v. West, 12 Vet. App. 341 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). There are no VA regulations specifically dealing with service connection for hepatitis C. Therefore, for service connection to be granted in this case for hepatitis C, the evidence must show that the appellant's hepatitis C infection, risk factor(s), or symptoms were incurred in or aggravated by service. The evidence must further show by competent medical evidence that there is a relationship between the claimed in-service injury and the appellant's hepatitis C. Risk factors for hepatitis C include intravenous (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. See VBA letter 211B (98-110) November 30, 1998. A VA "Fast Letter" issued in June 2004 (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). Another "key point" was the fact that hepatitis C can potentially be transmitted with the reuse of needles for tattoos, body piercing, and acupuncture. 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. It also noted that transmission of hepatitis C virus with air gun injections was "biologically plausible," notwithstanding the lack of any scientific evidence so documenting. It noted that it was "essential" that the report upon which the determination of service connection is made includes a full discussion of all modes of transmission, and a rationale as to why the examiner believes the air gun was the source of the hepatitis C. Turning to the merits of the issue in this case, the Board observes that medical evidence of record indicates that the appellant has been diagnosed with hepatitis C. This diagnosis constitutes a current disability for VA purposes and fulfills the requirements of the first element for service connection (evidence of a current disability). With regards to the second element necessary for a grant of service connection (an in-service occurrence or injury), the Board finds that the appellant's service medical records arguably support his claim in that they document that the appellant injured his hand in October 1968 and apparently lacerated his hand in October 1969. See service medical records. While these records do not show that the appellant separated from service with residuals of these injuries (in that they reveal the appellant's upper extremities were normal upon discharge) and the appellant was not found to have any identifying body marks, scars or tattoos at that time (October 1969 report of medical examination), the Board assumes for the sake of argument that the second element of the service connection test has been met in light of the fact that the service records document that an injury did occur. However, in regards to the third element of the service connection test (medical evidence of a nexus between the current disability and an in-service disease or injury), the Board finds that the more persuasive evidence of record indicates that the appellant's hepatitis C is not related to his hand injuries noted in service or any other incident reported by the appellant to have occurred during service. In support of this finding, the Board observes that the appellant's post-service medical records reference several significant risk factors that have been associated with the contraction of hepatitis C. See VBA letter 211B (98-110) November 30, 1998. Specifically, a May 1996 private medical record reports that the appellant had a hepatitis C risk factor of multiple tattoos and the possible contraction of viral hepatitis. During a new patient evaluation performed when the appellant sought a second opinion in regards to his hepatitis C infection, the appellant was noted to have several risk factors for acquiring hepatitis C that included being involved in a motor vehicle accident that occurred approximately 20 years earlier when he was "multiply transfused," multiple tattoos and a "long-standing history of intravenous drug-abuse between fifteen and twenty years ago." January 1998 private medical records. In an April 1999 private medical record, the appellant was noted to have a social history that was positive for tattoos, a transfusion history and IV drug abuse in the distant past. See private medical records dated in April 1999. In terms of the appellant's risk factor involving tattoos, the appellant testified that he did not have any tattoos prior to entering service, but that he had one placed on his upper arm during service. January 2007 BVA hearing transcript, pgs. 4-5. A review of the appellant's service induction clinical examination and service separation clinical examination both fail to note the observance of any tattoos or other identifying marks on the appellant's body. See September 1967 and October 1969 reports of medical examination. In addition, the appellant's service medical records do not reference any such identifying marks. Therefore, there is no evidence other than the appellant's testimony that he had a tattoo placed upon his body while in service. Regardless of this fact, the Board observes that the appellant testified a his BVA hearing that he presently has nine tattoos on his body, eight of which were placed upon him after his separation from service. January 2007 BVA hearing transcript, pgs. 5-6. In regards to these tattoos, the appellant reported to his treating physicians that he had them occasionally placed upon him at non-professional tattoos locations. See private medical records dated in August 1999. In terms of the potential risk factor involving a blood transfusion, the appellant has argued that the assistance provided to him as a result of injuries sustained in a 1978 motor vehicle accident did not rise to the level of an actual blood transfusion. In this regard, the appellant testified that he does not remember actually having a blood transfusion after his 1978 accident, but that he does remember his medical providers giving him "a pint of something" as part of his medical treatment. January 2007 BVA hearing transcript, p. 15. Records from the accident are not available. Id. However, contrary to the appellant's testimony, post-service medical records contained in the claims file indicate the likelihood that the appellant did undergo an actual blood transfusion in relationship to his 1978 accident. See private medical records dated in May 1996 (private medical records noted that the appellant may have had a blood transfusion in 1978 after being in a motor vehicle accident)(appellant "feels it is likely he had a blood tx 1978 after MVA"); November 1997 private medical records (appellant "had blood tx 1978"); August 1999 private medical records (appellant's treating physicians reported that the appellant underwent a blood transfusion in 1978) and October 1999 private medical records (private medical records noted that the appellant had a prior medical history of a motor vehicle accident). This indication is supported by the fact that the appellant's 1978 accident appears to have been quite severe and the appellant testified that he broke eight or nine ribs and his collar bone as a result of this vehicle crash. January 2007 BVA hearing transcript. In terms of the appellant's alleged IV drug use, the appellant testified that he tried an intravenous, injection- type drug on two or three occasions sometime in the early 1980's, but that he did not share drug needles with anyone else and did not inject these drugs after 1981. January 2007 BVA hearing transcript, pgs. 7-8. The appellant was diagnosed with hepatitis C in 1997. Id., pgs. 7-8, 17. Although the appellant's post-service medical records document two of the primary risk factors found to be associated with the spread of the hepatitis C virus (contact with blood through the skin via intravenous drug use or as a recipient of a blood transfusions prior to 1992) and references his numerous post-service tattoos, the appellant maintains that it is more likely than not that his hepatitis C infection resulted from an incident he had in service. In support of his claim, the appellant's private physician, T.P., M.D., prepared two letters that have been associated with the claims file. In his first letter, Dr. P. reported that the appellant had a diagnosis of chronic hepatitis C virus infection for which Dr. P. had treated him since August 1999. See April 2003 letter from Dr. P. Dr. P. went on to state that because of the long natural history of chronic hepatitis C virus infection, it is possible that the appellant may have contracted the infection while on active duty in the service since it can take from two to four decades for the chronic infection to progress to advanced liver disease. Id. Dr. P. did not elaborate as to what specific incident or injury alleged by the appellant to have occurred in service resulted in his contraction of hepatitis C. Id. However, in a subsequent letter, Dr. P. indicated that at the time of the appellant's initial evaluation for hepatitis C, he was noted to have evidence of advanced disease. Because of the long natural history of chronic hepatitis C virus infection, it can take from two to four decades for the infection to progress to advanced liver disease. As such, he opined that it is as likely as not that the appellant's hepatitis C may have been contracted by jet gun injections while in service. See June 2004 letter from Dr. P. In support of Dr. P.'s second letter, the appellant submitted internet articles during his BVA hearing from a website called "HCVETs.com" (United States Military with Hepatitis C), a site that indicates its purpose is to provide assistance with awareness to hepatitis C virus exposure methods during military service. The articles discussed the likelihood of hepatitis C being contracted from jet air gun inoculations. In light of Dr. P.'s medical opinions, the appellant was afforded a VA examination in May 2005 in connection with his claim. The appellant reported at that time that he had no IV drug use, denied occupational exposure to blood but reported that he had numerous fist-fights in service. He also reported receiving a body tattoo in service and also being administered injections via an air gun. May 2005 VA examination report, p. 1. After performing a physical examination and reviewing the appellant's claims file, the examiner diagnosed the appellant with hepatitis C with a history of failed treatment. She opined that the appellant's hepatitis C less likely than not had its onset in service in light of the fact that the appellant's contributing risk factors increased after his discharge from service even though he had a history of some possible risk factors in- service. Id., p. 2. The examiner also indicated that it was difficult to determine when the appellant's hepatitis C actually manifested in light of the fact that the condition was not evaluated until after the appellant's discharge from service. Id. However, she opined that the increased risk factors post-service (that included the appellant's alleged blood transfusion, continued body tattooing and reported intravenous drug history) would more likely than not have contributed to the appellant's hepatitis C. Id. In an October 2005 addendum opinion, the examiner noted her review of Dr. P.'s April 2003 and June 2004 letters but indicated that her May 2005 medical opinion remained the same in terms of her finding that the appellant's hepatitis C was less likely as not caused by or a result of the appellant's military experiences. See October 2005 addendum opinion, p. 2. In doing so, the examiner cited to specific post-service medical records contained in the claims file in support of her opinion. These records contained notations from the appellant's private medical providers as to the appellant's post-service hepatitis C risk factors, to include his post- service motor vehicle accident, his multiple tattoos and his alleged intravenous drug abuse. In affirming her prior medical opinion, the examiner disagreed with Dr. P.'s medical conclusions on the basis that he did not mention consideration of the appellant's post-service hepatitis C risk factors in formulating his opinions. After reviewing all evidence of record and comparing the medical opinions set forth above, the Board finds the May 2005 and October 2005 VA medical opinions to be more persuasive than the April 2003 and June 2004 opinions from Dr. P. In making this finding, the Board observes that the VA examiner formulated her opinions after examining the appellant, obtaining a medical history from the appellant, reviewing the appellant's claims file and considering the medical records contained therein. The examiner acknowledged all of the various hepatitis C factors set forth in the record on appeal (not only those alleged by the appellant but also those documented in the appellant's medical records) and opined that the risk factors that have been primarily associated with the contraction of hepatitis C (i.e., blood transfusions and IV drug use) more likely than not were responsible for the development of the appellant's hepatitis C in this case. Although the appellant reports that he provided Dr. P. with an accurate and complete medical history prior to formulating his opinions (January 2007 BVA hearing transcript, p. 18), the fact of the matter is that Dr. P.'s letters do not reference the appellant's other hepatitis C risk factors, much less discuss why these risk factors were discounted as a cause of the appellant's hepatitis C. The Board finds this omission to be particularly notable in light of the fact that Dr. P. appears to rely upon the premise of time in formulating his opinion in terms of the natural history of the hepatitis C virus infection and the fact that it can take from two to four decades for the chronic infection to progress to advanced liver disease. Dr. P. fails to address in his letters that the more obvious risk factors noted to be present in the case (the appellant's purported IV drug use and his apparent 1978 blood transfusion) occurred within the applicable time-frame referenced by Dr. P. and therefore seem far more likely to be associated with the appellant's infection. In addition, Dr. P. failed to discuss why he specifically felt the air gun inoculations administered to the appellant in service was the source of the appellant's hepatitis C infection in comparison to the other noted risk factors. See VA Fast Letter 04-13 (June 29, 2004). By failing to do so, Dr. P.'s opinions are less persuasive. In addition to the foregoing, the Board finds Dr. P.'s letters to be less persuasive than the May 2005 and October 2005 VA medical opinions in light of the language utilized by Dr. P. in issuing his opinions. Specifically, the Board observes that Dr. P. stated in his April 2003 letter that it was possible that the appellant may have contracted the hepatitis C infection while on active duty in the service in light of the long natural history of the virus. In his June 2004 letter, Dr. P. stated that because of the long natural history of chronic hepatitis C virus infection, it was as likely as not that the appellant's hepatitis C may have been contracted by jet gun injections while in service. The Board finds the language used by Dr. P. to be speculative at best; and the law does not permit service connection based upon speculative or conjectural medical opinions on etiology. See 38 C.F.R. § 3.102. See also Morris v. West, 13 Vet. App. 94, 97 (1999) (diagnosis that appellant was "possibly" suffering from schizophrenia deemed speculative); Bloom v. West, 12 Vet. App. 185, 186-87 (1999) (treating physician's opinion that veteran's time as a prisoner of war "could" have precipitated the initial development of his lung condition found too speculative to be medical nexus evidence to well- ground cause of death claim). Thus, in light of the fact that the May 2005 and October 2005 VA medical opinions appear to be based on a more thorough review and consideration of the overall evidence of record, the Board finds these opinions to be more probative than the private medical opinions submitted by Dr. P. As such, the Board accords the VA opinions greater probative weight and finds that the third element of the service connection test has not been met. Absent competent evidence of a disease, injury, or event in service and a medical opinion establishing a nexus between the current disability and an in-service disease, injury, or event, service connection for hepatitis C must be denied. Therefore, the Board finds that the preponderance of the evidence is against the appellant's claim of entitlement to service connection for hepatitis C, for the reasons discussed above. In reaching this decision, the Board has considered the doctrine of reasonable doubt. However, as a preponderance of the evidence against the appellant's claim, the doctrine is not applicable. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). ORDER New and material evidence has been submitted to reopen a claim of entitlement to service connection for hepatitis C; and the appeal is granted to this extent only. Service connection for hepatitis C is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs