Citation Nr: 1211881 Decision Date: 04/02/12 Archive Date: 04/11/12 DOCKET NO. 05-14 252 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD C. J. Houbeck, Associate Counsel INTRODUCTION The Veteran had active service from March 1973 to May 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2003 rating determination of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Philadelphia, Pennsylvania, which denied the claim on appeal. The Veteran had a hearing before the undersigned Veterans Law Judge in September 2010. A copy of the transcript was reviewed and associated with the claims file. The claim previously was remanded in January 2009 for further development. Such development having been substantially completed, the matter is again before the Board. The record also reflects that the Board requested etiology opinions from the Veterans Health Administration (VHA). See 38 C.F.R. § 20.901 (2011). Pursuant to 38 C.F.R. § 20.903 (2011), the Veteran would normally be sent a notice letter following the Board's receipt of a VHA opinion, and a period of 60 days to submit any additional evidence or argument in response. However, as will be discussed below, the Board is granting the benefit sought on appeal in full. Therefore, the Board finds no prejudice in proceeding with a decision without providing the Veteran notice in advance of the content of the requested VHA opinions. FINDING OF FACT There is at least an approximate balance of positive and negative evidence as to whether the Veteran's current hepatitis C disability had its onset during military service, or is otherwise attributable to his military service. CONCLUSION OF LAW Resolving doubt in favor of the Veteran, hepatitis C was incurred during his military service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION The VCAA describes VA's duties to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). In light of the favorable decision herein as to entitlement to service connection, the Board finds that any deficiencies in notice as to this issue were not prejudicial to the Veteran. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2011). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability on a direct basis, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran contends that he has hepatitis C from an in-service blood transfusion or air gun inoculation. The Veteran's service treatment records include a clinical discharge summary from January 1974 that outlines a November 1973 arthrotomy, medial and lateral, left knee; chondrectomy, patellar, partial, left; advancement, vastus medialis obliqus, left; application, and cast, cylinder, left lower extremity. The Veteran asserts that prior to this surgery he was informed by the assisting physician that he might require a blood transfusion during the surgery. After the surgery, the Veteran states that the operating physician informed him that he required a pint of blood during the course of surgery. The January 1974 clinical summary does not indicate whether a blood transfusion was required during the November 1973 surgery. The Regional Office (RO) attempted to obtain additional hospital records from that time period to confirm such transfusion, but was informed that such records had been lost. The following guidance has been published for adjudicating hepatitis C (HVC) claims, which states in part as follows: * Population studies suggest HVC can be sexually transmitted. However, the chance for sexual transmission of hepatitis C is well below comparable rates for HIV/AIDS or hepatitis B infection. . . . * The hepatitis B virus is heartier and more readily transmitted than hepatitis C. While there is at least one case report of hepatitis B being transmitted by an air gun injection, thus far, there have been no case reports of hepatitis C being transmitted by an air gun transmission. * The source of infection is unknown in about 10 percent of acute HVC cases and in 30 percent of chronic HVC cases. These infections may have come from blood-contaminated cuts or wounds, contaminated medical equipment or multi-dose vials of medications. CONCLUSION: The large majority of HVC infections can be accounted for by known modes of transmission, primarily transfusion of blood products before 1992, and injection drug use. Despite the lack of any scientific evidence to document transmission of HVC with air gun injectors, it is biologically plausible. . . . VBA Fast Letter 04-13 (June 29, 2004). The RO requested a medical opinion as to how likely it was that a blood transfusion was administered to the Veteran during his in-service left knee surgery. The resulting December 2009 VA medical opinion stated that the reviewer could not resolve the issue without resort to speculation, noting that the January 1974 discharge summary included no blood transfusion history. In addition to the November 1973 in-service surgery, the Veteran reportedly has undergone approximately seven (7) additional surgeries on his left knee. The Veteran's March 1973 report of medical history at entrance indicated a prior fracture of the left patella. Furthermore, April 1973 and October 1973 service treatment records indicate a history of a fractured left patella six (6) and eleven (11) months prior, respectively, but it is somewhat unclear as to whether this fracture necessitated one of the surgeries noted above. The claims file otherwise indicates the Veteran underwent a left knee arthroscopy in August 1990. In late November or early December 1990, the Veteran underwent a left knee lateral retinacular release, medial reefing, patellar shaving, and synovectomy. Another surgery, manipulation under anesthesia, left knee, in January 1991, resulted in no lost blood. In August 1991, the Veteran appears to have undergone a left knee arthroscopy and chondroplasty. In August 1992, the Veteran had a high tibial osteotomy of the left leg, related to hip pain. The Veteran also claims several additional arthroscopies between service and 1994. The Veteran reported banking blood for at least one of his post-service surgeries, in 1990. The precise date of diagnosis of hepatitis C is somewhat unclear; however, the Veteran's treatment records from December 1990 reference a history significant for hepatitis C. The Veteran otherwise has denied any risk factors for contraction of hepatitis C, to include intravenous drug use, snorting of cocaine or other drugs, tattoos, unsafe sex, or sharing razors or toothbrushes. The Veteran's service entrance examination in March 1973, however, specifically noted a tattoo on the left forearm. In support of his claim, the Veteran also submitted several journal articles. One article discussed the reduced production of hemoglobin following knee joint surgery. Another discussed a new technique that reduced average blood loss and the need for blood transfusion in total knee arthroplasty. The Veteran also submitted links for articles discussing transfusion and arthrotomy. The Board requested a medical opinion from the Veterans Health Administration (VHA) as to the likelihood that the Veteran received a blood transfusion in November 1973 during left knee surgery and, if so, the likelihood his current hepatitis C was related to that transfusion. In addition, the Board asked for an opinion regarding the likelihood that his hepatitis C was related to an in-service air gun inoculation. The resulting April 2011 opinion letter indicated that the physician was unable to answer any of the questions posed. Following a request for clarification, an August 2011 opinion indicated that in November 1973 the risk of post-transfusion hepatitis was near 30 percent, as opposed to at present when it was less than 1 percent. An additional opinion letter noted that the physician still was unable to provide an opinion as to whether a November 1973 blood transfusion occurred or if hepatitis C was related to an in-service air gun inoculation. An October 2011 opinion letter discussed the Veteran's above-noted history. In relevant part, the letter stated: If the patient has or had a tattoo there were no lab results to confirm this in the records that I was supplied. If the patient has or had a tattoo as noted in the medical records on entry into the military but denied by the patient in the records, it is also likely that he could have acquired Hepatitis C from the tattoo needles. I cannot comment on any other risk factors for Hepatitis C as there was no further data in the record to confirm or deny the patient's statements. From an epidemiologic perspective, it is more likely that tattoo needles would lead to acquisition of Hepatitis C than use of an air gun injector. However, it is theoretically possible to acquire Hepatitis C from an air gun injector. That said, it is impossible from the records to determine whether the tattoo, if it is confirmed that he actually had a tattoo, or an injection from an air gun lead [sic] to his acquisition of Hepatitis C. Finally, a January 2012 opinion letter discussed numerous studies that considered the spread of disease through the use of air gun injections. In particular, one study at a VA medical facility included the conclusion that the risk of hepatitis C infection among those who served during the Vietnam era could have been due to jet inoculation. Based on these studies, the physician concluded that it was at least as likely as not that the Veteran because infected with hepatitis C as a result of air gun inoculation during basic training. The Board finds the January 2012 opinion of significant probative value, as it is the sole medical opinion of record that provides a definitive conclusion. Cf. Obert v. Brown, 5 Vet. App. 30, 33 (1993); Beausoleil v. Brown, 8 Vet. App. 459, 462 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996) (holding that any medical link that is speculative, general or inconclusive in nature is of no probative value). The January 2012 opinion letter also provided a rationale and basis for the opinion provided. The Board remains concerned about the notation of a tattoo at entrance into service. However, the Board is also concerned that there are substantial treatment records associated with the file, and the 1973 notation that the Veteran has a tattoo on his left forearm is the only evidence of record suggesting the presence of a tattoo. This is particularly significant in light of the fact that the Veteran has denied any history of having a tattoo. In any event, the Board again finds the January 2012 opinion of significant probative value, and sufficient to place the evidence is at least in equipoise as to whether the Veteran's hepatitis C was due to an air gun inoculation in service. As such, resolving all reasonable doubt in the Veteran's favor, the Board concludes that service connection for hepatitis C is warranted. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for hepatitis C is granted. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs