Citation Nr: 1105990 Decision Date: 02/14/11 Archive Date: 02/28/11 DOCKET NO. 10-03 169 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to service connection for hepatitis C. 2. Entitlement to service connection for cirrhosis of the liver, claimed as secondary to hepatitis C. REPRESENTATION Appellant represented by: Nevada Office of Veterans' Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The Veteran served on active duty from January 1976 to February 1981 and from November 1982 to February 1988. These matters come before the Board of Veterans' Appeals (Board) from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. In that decision, the RO, among other things, denied entitlement to service connection for hepatitis C and cirrhosis of the liver. In June 2010, the Veteran testified at a hearing before the undersigned using video-conferencing technology; a transcript of that hearing is of record. Additional evidence was submitted during the hearing and subsequent to notification of certification of the appeal to the Board, along with a waiver of initial RO review of this evidence. In addition, the Board is granting each service connection claim, which constitutes a grant of the full benefits sought on appeal. Seri v. Nicholson, 21 Vet. App. 441, 447 (2007) (the grant of a claim of service connection constitutes an award of full benefits sought on an appeal of the denial of a service connection claim). Consequently, the Board will consider this evidence in the first instance. 38 C.F.R. § 20.1304(c) (2010). FINDINGS OF FACT 1. Hepatitis C is related to service. 2. Cirrhosis of the liver is related to hepatitis C. CONCLUSIONS OF LAW 1. Hepatitis C was incurred in service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2010). 2. Cirrhosis of the liver is proximately due to or the result of hepatitis C. 38 U.S.C.A. § 1131; 38 C.F.R. §§ 3.303, 3.310(a) (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Clams Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). However, as the Board is granting the claims for service connection for hepatitis C and cirrhosis of the liver, the claims are substantiated, and there are no further VCAA duties with regard to them. Wensch v. Principi, 15 Vet App 362, 367-368 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Moreover, during the June 2010 Board videoconference hearing, the undersigned took testimony on the dispositive issues in the case, and received additional relevant evidence. These actions provided an opportunity for the Veteran and her representative to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. § 3.103(c)(2) (2010). See Bryant v. Shinseki, 23 Vet. App. 488 (2010). Analysis Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection on a direct incurrence basis generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303(a),(d). Service connection is also warranted on a secondary basis when there is evidence that a current disability is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Laboratory test results contained in the service treatment records (STRs) indicate that the Veteran was diagnosed with hepatitis B in service. The Veteran claims that this was a diagnosis, and that this evidence actually indicates that she had hepatitis C in service. During the Board hearing, the Veteran testified to receiving vaccinations via jet guns at the same time as others, and submitted pictures purporting to show her receiving such injections. The Veteran also submitted articles indicating that such injections contain a potential risk of blood borne disease transmission if not properly cleaned and disinfected between injections. The STRs reflect multiple vaccinations. VBA Fast letter 211B (98-110) (November 30, 1998) lists various risk factors for hepatitis C, including direct percutaneous exposure such as acupuncture with non-sterile needles. This list does not include immunization with jet injectors as a risk factor. However, this list is not exclusive. Significantly, VBA Fast letter 04-13 (June 29, 2004) specifically addressed the relationship between immunization with jet injectors and hepatitis C as it relates to service connection. In this letter, the Acting Director of Compensation and Pension Service noted that an RO decision had erroneously quoted a VA physician who was the chief consultant to the Public Health Strategic health care group as indicating that anyone inoculated with jet injectors was at risk of having hepatitis C. Although the attribution of this quotation was erroneous, the Acting Director concluded that, while most hepatitis C infections can be accounted for by known modes of transmission such as pre-1992 transfusion and injection drug use, the transmission of the virus that causes hepatitis C with air gun injectors is "biologically plausible." She cautioned that it is essential that any physician making such a determination include a full discussion of all modes of transmission, and a rationale as to why the physician believes the air gun was the source of the Veteran's hepatitis C. The Veteran has submitted multiple medical opinions in support of her claim. In an April 2007 letter, Dr. Carrera, who has treated the Veteran for her hepatitis C, indicated that, while a specific diagnosis of hepatitis C was made in 1995, it was quite likely that the hepatitis diagnosed in service (which he described as non-A, non-B hepatitis) was actually hepatitis C. In an April 2009 letter, Dr. Frenette, who also treated the Veteran, wrote that it was quite likely that the hepatitis diagnosed in service (which she described as non-A, non-B hepatitis) was actually hepatitis C, as there was no testing for hepatitis C at that time. Dr. Frenette reiterated this conclusion in a June 2010 letter, and noted that the Veteran may have been exposed to hepatitis C during boot camp when she received vaccinations through "the pneumatic type vaccinations gun." The only other medical opinion on this question was that of the November 2007 VA examiner. She reviewed the claims file, noted in-service hepatitis A and B diagnoses, and concluded that she could not "make a determination without mere speculation" as to the current hepatitis C was caused by service. She noted that there were no positive markers for non-A, non-B viral hepatitis infection, that the Veteran had separate infection of hepatitis A and hepatitis B, and that hepatitis A is a self limiting viral infection and does not lead to hepatitis B. The examiner concluded that, although the risk factors for hepatitis B and C are similar, hepatitis B does not convert into hepatitis C. In weighing the above medical opinions, the Board notes that each are flawed. Drs. Carrera and Frenette each erroneously noted that the Veteran was diagnosed in service with non-A, non-B hepatitis. However, it appears to the Board from the context of their remarks that they meant to indicate that diagnoses of hepatitis A or hepatitis B in service could have been erroneous diagnoses of what was actually hepatitis C. The November 2007 VA examiner's statement that hepatitis B does not convert to hepatitis C is beside the point, as there is no argument that such a "conversion" occurred, but, rather, that the hepatitis B diagnosis was in fact an erroneous diagnosis of what was actually hepatitis C. Moreover, in Jones v. Shinseki, 23 Vet. App. 382 (2009), the Court held that, before the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence. Id. at 390. It must also be clear that the physician has considered "all procurable and assembled data." Id (citing Daves v. Nicholson, 21 Vet. App. 46 (2006)). Finally, the physician must clearly identify precisely what facts cannot be determined. Id. the November 2007 VA examiner's conclusion does not appear to meet these criteria, as she did not indicate that she had considered the evidence regarding jet gun injections or the possibility that the hepatitis B diagnosis was an erroneous diagnosis of what was actually hepatitis C. In regard to the comment that there were no markers, we are unable to determine whether there were markers that were negative for non-A non-B or that there was an absence of testing for markers. While Drs. Carrera and Frenette did not indicate that they had considered all of the other risk factors, their letters, taken together, did contain a rationale for their conclusion that the hepatitis B diagnosis was likely an erroneous diagnosis of what was actually hepatitis C. Thus, these opinions are entitled to more weight than that of the November 2007 VA examiner. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). We also note that the VA examiner identified all risk factors as occurring during service. As the weight of the evidence thus indicates that the Veteran had hepatitis C during the appeal period that is related to service, she is entitled to service connection for this disability. As to the Veteran's cirrhosis of the liver, there are multiple medical opinions indicating that her cirrhosis of the liver is related to her hepatitis C. In a series of letters from February 2004 to March 2006, Dr. Yao indicated that the Veteran's cirrhosis of the liver was due to her hepatitis C, including references to "biopsy-proven cirrhosis of the liver due to chronic hepatitis C," and "biopsy documented cirrhosis due to chronic hepatitis C." Dr. Frenette also indicated in her June 2010 letter that the Veteran's cirrhosis of the liver was related to her hepatitis C. While there was little reasoning in these letters, Dr. Yao did implicitly indicate that her conclusion was based on her analysis of the biopsy, and even a flawed medical opinion may constitute evidence probative of an etiological question. See Fagan v. Shinseki, 573 F.3d 1282, 1290, n. 4 (Fed. Cir. 2009) (citing Hogan v. Peake, 544 F.3d 1295, 1297-98 (Fed. Cir. 2008) (even flawed medical opinions must be considered evidence relevant to medical questions and not dismissed as "non-evidence"). Moreover, there is no contrary medical evidence or opinion. Consequently, the weight of the evidence supports a relationship between the Veteran's cirrhosis of the liver and her hepatitis C. As the Board has granted service connection for hepatitis C, the Veteran is thus entitled to service connection for cirrhosis of the liver as secondary to this service-connected disability. 38 C.F.R. § 3.310(a). ORDER Entitlement to service connection for hepatitis C is granted. Entitlement to service connection for cirrhosis of the liver, claimed as secondary to hepatitis C, is granted. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs