Citation Nr: 1224304 Decision Date: 07/13/12 Archive Date: 07/18/12 DOCKET NO. 09-17 431 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Bernard T. DoMinh, Counsel INTRODUCTION The Veteran served on active duty from July 1982 to October 1986. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision by the Seattle, Washington, Regional Office of the Department of Veterans Affairs (VA), which denied the Veteran's claim of entitlement to service connection for hepatitis C. (The original claim was brokered to the Seattle, Washington, VA Regional Office by the Oakland, California, VA Regional Office (RO), which is the agency of original jurisdiction over the current appeal.) FINDINGS OF FACT Hepatitis C was the result of the Veteran's exposure to the hepatitis C virus during active military service. CONCLUSION OF LAW A chronic hepatitis C infection was incurred in active duty. 38 U.S.C.A. §§ 1131, 1137, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 As will be further discussed below, the Veteran's claim of entitlement to service connection for hepatitis C is being granted in full. Therefore, the Board finds that any error related to the Veterans Claims Assistance of Act of 2000 (VCAA) (Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2011)) on this claim is rendered moot by this fully favorable decision. See 38 U.S.C. §§ 5103, 5103A (West 2002 & Supp. 2011); 38 C.F.R. § 3.159 (2009); Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Therefore, there is no need to engage in any analysis with respect to whether the requirements of the VCAA have been satisfied concerning the claim on appeal. Entitlement to service connection for hepatitis C The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2011); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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. See 38 U.S.C.A. §§ 1110, 1131, 1137 (West 2002). However, that an injury or disease occurred in service is not enough; there must also be a chronic disability resulting from that injury or disease. If there is no showing of the chronic disability during service, then a showing of continuous symptoms after service is required to support a finding of chronicity. See 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. See 38 C.F.R. § 3.303(d) (2011). In order to establish service connection for a disability, there must be (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The Veteran's military records show that he served honorably in the United States Army from July 1982 to October 1986. His military awards include the Parachutist Badge and the British Armed Forces Parachutist Badge. The Veteran's service medical records show that he sustained a fracture of his left fibula during paratrooper training in February 1985 and underwent left ankle surgery for an open reduction of the fracture. The procedure involved insertion of screws, pins, and metal hardware to set the fracture. The surgery report indicated only minimal blood loss. The fracture fully healed and over a year later, in July 1986, the Veteran underwent a second surgical procedure at the fracture site to remove the metal hardware that was implanted in the prior operation. The surgery records do not indicate that a blood transfusion was administered at either procedure. Although the Veteran reported during and after service that he had a history of receiving a blood transfusion during active duty, his service medical records do not objectively demonstrate that a blood transfusion was ever administered to him at any time during service. As relevant, the Veteran's clinical records from service show that he received routine immunizations and dental treatment during the course of his period of active duty. The medical records from service do not show a diagnosis of hepatitis in general or hepatitis C in particular. Post-service VA and private medical records show that abnormal elevated liver function test results and blood samples obtained from the Veteran in late August 2006 were analyzed at a medical laboratory and demonstrated that he had an active hepatitis C infection. This is the Veteran's earliest established diagnosis of hepatitis C disease. The Veteran filed his claim for VA compensation for hepatitis C in September 2006. In addition to his contention that he was exposed to the hepatitis C virus through blood transfusions administered during his left ankle surgeries in service, he also contends that his disease was contracted during active duty through the following vectors of exposure: (1.) The Veteran asserts that he was exposed to the hepatitis C virus through receiving inoculations from infected air inoculation injection guns while being administered mass immunizations in service. (2.) The Veteran asserts that he was exposed to the hepatitis C virus through dental treatment administered in service by dental care providers who were operating under the less-stringent protocol standards extant in the early-to-mid 1980s, which did not contemplate the threat of exposure to the hepatitis C virus. (3.) The Veteran asserts that he was exposed to the hepatitis C virus through haircuts and shaves received during active duty by military barbers who used unsterilized razors and other sharp haircutting instruments. In support of the above contentions, the Veteran submitted a medical study report dated in May 1993 indicating that dental patients and dental care providers may be exposed through blood contact to various infectious disease agents, including the hepatitis C virus, and recommended several protocols to prevent exposure or transmission of the infectious disease. The Veteran contends that these recommended protocols were not common practice during his period of active duty in 1982 - 1986 and thus he was plausibly exposed to hepatitis C in service. With regard to the Veteran's assertion that he was exposed to hepatitis C via infected air inoculation injection guns of the type used during his period of active duty in 1982 - 1986 to administer immunizations to mass numbers of servicepersons, and that the more relaxed standards of disease infection control in existence during that era further contributed to the likelihood of his hepatitis C exposure, the Board notes that a letter dated June 29, 2004 from the Veterans Benefits Administration states, in pertinent part, that "[d]espite the lack of any scientific evidence to document transmission of [hepatitis C virus] with [immunization] airgun injectors, [such transmission] is biologically plausible." (see VBA Fast Letter 04-13.) The Veteran has presented personal statements and answers to a November 2006 VA questionnaire regarding his lifestyle and prior activities to assess his risk factors for hepatitis C exposure. These personal historical accounts, which the Board deems to be honest and credible, and the Veteran's concurrent VA and private medical records show that the Veteran does not have any tattoos or body piercings; is not, nor has he ever been an intravenous drug user or nasal drug user; does not engage in unsafe sexual practices and has been in an exclusively monogamous sexual relationship with his spouse since 1988 (who has been tested negative for hepatitis C); does not have a history of hemodialysis, acupuncture with unsterilized needles, or sharing toothbrushes or razor blades; and was not, nor was he ever a healthcare worker who was exposed to contaminated blood or fluids. In this regard, an August 2000 VA medical addendum shows that the Veteran had no risk factors for hepatitis C. In November 2008, VA scheduled the Veteran for a medical examination to obtain a nexus opinion. The examination was conducted by a VA nurse practitioner, who stated in her report that she had reviewed the Veteran's claims file and pertinent medical history in conjunction with her examination of the Veteran. After confirming his diagnosis of chronic hepatitis C, she presented the following opinion: After examining the veteran and reviewing his c-file it is less likely as not that his present Hep C condition is related to his service time. This is based on review of his hospital note, post-op of his ankle surgery, noting there was minimal blood loss therefore it [is] highly doubtful [the] vet received a blood transfusion during or after his surgery. Further more there is no additional evidence or risk factors during his service time where he would have contacted [sic] Hepatitis C including air gun injectors which at this time have not been proven to cause hepatitis C or from dental visits during service time. The Veteran submitted a written statement dated in October 2007 from his private physician, Bennet Cecil, M.D., who identified himself as the corporate medical director of Hepatitis C Treatment Centers of Louisville, Kentucky. Dr. Cecil presented the following commentary and opinion: I have examined the service and VA records of [the Veteran], who has. . . no history of injection or nasal drug abuse and no history of transfusion. His service records document numerous vaccinations, and he states that these were given by air gun vaccinations. He also states that dentists who were not wearing gloves did his dental work in the Army. He has many haircuts and shaves by Army barbers who did not use sterile razors. [M]ilitary veterans [have a hepatitis C infection] prevalence much higher than the general population. While [some] have risk factors such as transfusion or drug abuse, many others like [the Veteran] have only their military service as a risk factor. Air gun injectors have been proven to spread viral hepatitis from one person to another as proven by Dr. Miriam Alter at the [Center for Disease Control (CDC)]. The CDC advises that razors not be shared. In my medical opinion, it is highly likely that [the Veteran] acquired his hepatitis C infection during his military service and it is service connected. The Board has considered the evidence discussed above and finds that the objective opinions of both the November 2008 VA nurse practitioner and Dr. Cecil in October 2007, as well as the medical documentation pertinent the Veteran's ankle surgeries in service indicate that no blood transfusion was ever administered to the Veteran during active duty. Thusly, the Board finds that the Veteran's personal recollection of having received such transfusions is outweighed by the contemporaneous surgical records from service and the opinions of the aforementioned clinicians. As such, the Board finds that there is no factual basis to support the Veteran's contention that his present hepatitis C disease was contracted through receipt of an infected blood transfusion during active duty. The Board finds, however, that the clinical evidence is in relative equipoise regarding the likelihood of the Veteran's exposure to, and acquisition of a hepatitis C infection during active duty as a result of receiving a vaccination from an infected air injection gun while undergoing immunizations administered en masse to all servicepersons. Whereas the November 2008 VA nurse practitioner did not find it likely that the Veteran contracted his hepatitis C through this particular vector, Dr. Cecil, who is a medical doctor specializing in treatment of hepatitis C, held the opinion that this vector was the likely cause of the Veteran's hepatitis C infection. The Board finds that Dr. Cecil's professional credentials confer considerable probative weight to his opinion as compared to the lesser credentials of the VA nurse practitioner who held an opposing opinion. Furthermore, VA's own VBA Fast Letter 04-13 expressly did not rule out the biological plausibility of hepatitis C transmission through an infected air injection gun of the type used during the Veteran's period of service. The clinical evidence is also in relative equipoise regarding the likelihood of his in-service hepatitis C exposure through other infection vectors, including dental treatment and the use of shared barbering tools. Differing opinions in this regard are presented by the VA nurse practitioner involved in this case and by Dr. Cecil. Objective studies and treatises do not rule out the possibility that hepatitis C could be contracted through these aforementioned means. The Veteran's assertion that the less-stringent infection control protocols for dental care providers and barbers that were in existence at the time of his period of active duty increased his likelihood of exposure to hepatitis C is certainly plausible, and appears to be supported by the medial treatise evidence. Finally, the Board finds that the Veteran's account of his own personal history is credible with regard to his risk factors for hepatitis C infection. He did not engage in the high-risk activities and behavior that would predispose him to exposure to hepatitis C outside of military service or as a result of willful misconduct while serving in uniform. In view of the foregoing discussion, because the Board finds that the evidence in this case is approximately balanced both in support of and against the merits of the Veteran's claim, the benefit of the doubt is conferred in his favor and his claim for service connection for hepatitis C is therefore granted. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2011); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for hepatitis C is granted. ____________________________________________ M. W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs