Citation Nr: 1224538 Decision Date: 07/16/12 Archive Date: 07/20/12 DOCKET NO. 07-33 302 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Conner, Counsel INTRODUCTION The appellant served on active duty from January 1972 to December 1975. This matter came to the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, which determined that new and material evidence had not been received to reopen a previously denied claim of service connection for hepatitis C. In September 2009, the appellant testified at a Board hearing at the RO. In a January 2010 decision, the Board reopened the claim of service connection for hepatitis C and remanded the matter for additional evidentiary development. In May 2011, the appellant executed a VA Form 21-22a, Appointment of Individual as Claimant's Representative, appointing Dawn R. Holliday of the Veterans Disability Consultants to represent him before VA. In a May 2012 letter, the Board advised the appellant that although Ms. Holiday was accredited to represent claimants before VA in the capacity of an agent, she was incorrectly identified as an attorney on the May 2011 VA Form 21-22a. As a result, the Board determined that the appointment was invalid and offered the appellant the opportunity to complete a corrected VA Form 21-22a, appoint a new representative, or proceed pro se. The following month, the appellant responded that he no longer wished to be represented by Ms. Holliday and duly appointed the Disabled American Veterans as his accredited representative. In June 2012, that organization provided written arguments in support of the appellant's appeal. Also in June 2012, the appellant provided additional evidence directly to the Board, including a medical opinion in support of his claim. The appellant also provided a waiver of initial RO consideration of this additional evidence, as did his representative. 38 C.F.R. § 20.1304 (2011). FINDINGS OF FACT Hepatitis C was not clinically evident during the appellant's active service or for many years thereafter and the most probative evidence indicates that the appellant's current hepatitis C is not causally related to his active service or any incident therein. CONCLUSION OF LAW Hepatitis C was not incurred in service. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As a preliminary matter, the Board finds that no further notice or development action is necessary in order to satisfy VA's duties to the appellant under the VCAA. In an April 2006 letter issued prior to the initial decision on the claim, VA notified the appellant of the information and evidence needed to substantiate and complete his claim, and of what part of that evidence he was to provide and what part VA would attempt to obtain for him. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2011). The April 2006 letter included the additional notification requirements imposed by the U.S. Court of Appeals for Veterans Claims (Court) in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Additionally, in a January 2010 letter, the RO sent the appellant a letter reiterating the information and evidence needed to substantiate and complete his claim, and of what part of that evidence he was to provide and what part VA would attempt to obtain for him. Since the issuance of this letter, the RO has reconsidered the appellant's claim, most recently in the May 2011 Supplemental Statement of the Case. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In addition to the April 2006 and January 2010 notification letters, during a conference held prior to the appellant's September 2009 Board hearing, and during the hearing itself, the undersigned Veterans Law Judge discussed the issue on appeal with the appellant and his representative, including the type of evidence required in order to prevail in the claim. 38 C.F.R. § 3.103 (2011); see also Bryant v. Shinseki, 23 Vet. App. 488 (2010). The appellant and his representative acknowledged full understanding of all matters discussed, offered relevant evidence and argument at the hearing, and indicated that additional evidence would be forthcoming. As set forth above, the appellant has recently submitted additional evidence in connection with his claim, along with a written waiver of initial RO consideration of that evidence. With respect to VA's duty to assist, the record shows that VA has undertaken all necessary development action. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2011). In that regard, the appellant's service treatment records are on file, as are all available post-service clinical records which the appellant has specifically identified and authorized VA to obtain. 38 U.S.C.A. § 5103A(c) (West 2002); 38 C.F.R. § 3.159(c)(2), (3) (2011). The Board notes that in clinical settings, the appellant has reported that he is in receipt of disability benefits from the Social Security Administration (SSA) due to pharyngeal cancer. There is no indication, however, that records from SSA are relevant to the claim of service connection for hepatitis C, nor has the appellant indicated otherwise. See McGee v. Peake, 511 F.3d 1352, 1357 (Fed. Cir. 2008) (noting that Congress has explicitly defined VA's duty to assist in terms of relevance); see also Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed.Cir.2010) (noting that "[r]elevant records for the purpose of § 5103A are those that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the veteran's claim."). Under these circumstances, VA has no duty to request records from SSA in connection with the claim adjudicated in this decision. The Board also notes that the record on appeal indicates that the appellant has a history of ankle surgery in 1991 or 1992. As set forth in more detail below, the appellant has reported a conflicting history regarding whether he received a transfusion during this surgery, a recognized risk factor for hepatitis C. For example, on multiple occasions in clinical settings prior to filing his claim for VA compensation for hepatitis C in 2002, the appellant reported that he had had a blood transfusion during his 1991 or 1992 ankle surgery and his providers noted that the appellant likely contracted hepatitis C from tattooing or the blood transfusion. More recently, however, the appellant has expressly denied ever having received a transfusion, including during his ankle surgery. Indeed, he now claims that he has reviewed his surgical records which indicate that he only received an intravenous solution for rehydration, not a transfusion. Unfortunately, however, the surgical records purportedly reviewed by the appellant are not associated with the of record nor has the appellant specifically identified these records to VA or authorized the release of these records. The Board notes that the appellant was asked to complete a VA Form 21-4142, Authorization for Release of Information, regarding medical treatment he received from private physicians or hospitals, but he failed to provide the requested information. The appellant has a legal obligation to cooperate fully with VA's reasonable efforts to obtain relevant records in support of his claim. 38 U.S.C.A. § 5107(a) (West 2002); 38 C.F.R. § 3.159 (2011). This includes providing VA with enough information to identify and locate relevant records, including the approximate time frame covered by the records and the custodian or agency holding the records. Additionally, the appellant must authorize the release of such records in a form acceptable to the custodian. See 38 C.F.R. § 3.159(c)(2),(3) (2011). In light of the appellant's failure to provide the necessary information regarding records corresponding to his ankle surgery, the Board finds that VA has no further duty to assist with respect to these records. The appellant has also been afforded an adequate VA medical examination in connection with his claim. 38 C.F.R. § 3.159(c) (4) (2011). The opinion obtained pursuant to that examination was provided by a qualified medical professional, a VA physician, and was predicated on a full reading of all available records as well as the appellant's reported medical history. The examiner also provided a rationale for the opinion rendered, with specific reference to the pertinent evidence as well as a consideration of the appellant's contentions. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). For the reasons set forth above, and given the facts of this case, the Board finds that no further notification or development action is necessary on the issue now being decided. Background The appellant's service treatment records are negative for complaints or findings of hepatitis. His vaccination records show that he was administered the triple typhoid vaccine, tetanus toxoid, and yellow fever vaccines in January 1972. At his November 1975 military separation medical examination, no pertinent abnormalities were identified and the appellant denied having or ever having had jaundice or hepatitis. His skin was examined and determined to be normal at service separation, with no tattoos noted. In October 2002, the appellant submitted an application for VA compensation and pension benefits, stating that he had been disabled due to hepatitis C since June 2002. In support of the appellant's claim, the RO obtained VA clinical records dated from January 2001 to September 2002, showing that in January 2001, a hepatitis C screening was positive. In March 2001, the appellant's hepatitis C risk factors were noted to include multiple tattoos as well as a blood transfusion during ankle surgery in 1991. The appellant denied a history of intravenous drug use and high risk sexual activity. He acknowledged a history of heavy alcohol use for a few years approximately ten years prior, but indicated that he was currently only a sporadic social drinker. The appellant indicated that he was unsure how he had contracted the hepatitis C virus as his tattoos had been done in a very sterile manner. In August 2001, the appellant's VA treatment provider indicated that the appellant's hepatitis C had likely been acquired from tattooing or a blood transfusion. In January 2002, the appellant's VA physician noted that the appellant had no significant medical history except for hepatitis C with risk factors of tattoos and a blood transfusion in 1992. In February 2002, the appellant denied the current use of alcohol or drugs, but acknowledged a prior history of alcohol and drug use. In a January 2003 statement submitted in support of his application for VA compensation, the appellant indicated that it was his belief that he had been exposed to the hepatitis C virus in service from inoculations he received in basic training which had been administered with an air gun. He indicated that "[a]fter reviewing previous medical records, I have concluded that there was no transfusion for ankle surgery in 1995, only solution administered intravenously for rehydration." The appellant also indicated that he had received all of his tattoos between 1997 and 2000 in "my own studio under the strictest standards to prevent contamination with biohazards materials." Additional VA clinical records dated to March 2006 show that the appellant received continued treatment for hepatitis C. During this period, the appellant acknowledged a history of alcohol abuse and cocaine use on several occasions. It was also noted that his occupation was tattoo artist. In January 2005, the appellant again acknowledged a history of alcohol abuse and indicated that he was aware that he had "an addictive personality." In a September 2006 statement, the appellant claimed that his only possible exposure to the hepatitis C virus was during jet gun inoculations during active duty. In a statement received in September 2009, an individual who served with the appellant recalled that during boot camp, they had received shots with a "nasty air powered gun." At his September 2009 Board hearing, the appellant testified that he had been diagnosed as having hepatitis C in 2001. He testified that it was his belief that he had contracted the disease as a result of receiving inoculations with an air jet gun during boot camp. He indicated that throughout his entire life, he had "treated [his] body as a temple." Transcript at page 4. He indicated that although he had "drank some beer in my life," he did not do drugs nor had he ever received transfusions during surgery. Id. He also denied ever being covered in blood during combat conditions. He indicated that the only way he could have contracted the virus was through the misuse of immunity jet guns. In a January 2010 statement, the appellant claimed that he had not abused alcohol and had quite drinking 16 years prior. He further claimed that he had never done cocaine. He acknowledged that he had been employed as a tattoo artist but indicated that this employment had only been after his hepatitis C diagnosis. He also claimed that he had received all of his tattoos after his hepatitis C diagnosis. Finally, he claimed that he had never had a blood transfusion. In April 2010, the appellant underwent VA medical examination. In reviewing the appellant's claims folder, the examining physician noted that the record contained documentation of a post-service history of heavy alcohol use, cocaine use, tattoos, and a blood transfusion in connection with an ankle surgery. He noted, however, that the appellant believed that he had contracted hepatitis C from jet guns used for inoculations in service in the early 1970s. On examination, the appellant reported a history of drinking a six pack of beer on the weekends from his early 20s until his early 40s. He denied heavier alcohol use. He also denied intranasal cocaine use, intravenous drug use, and high risk sexual practices. He reported that he had shared a razor during service on one occasion and had received airgun inoculations during boot camp. The appellant also reported receiving tattoos after service. After examining the appellant, the examiner diagnosed hepatitis C. He concluded that it was less likely than not that the appellant's hepatitis C had begun during service or was otherwise casually related to any incident of service, to include exposure to air jet inoculations. The examiner explained that although transmission of the hepatitis C virus via jet gun was "a biological plausibility," a review of the medical literature indicated that it was not a significant risk factor for hepatitis C infection. Conversely, each of the appellant's other post-service risk factors documented in the record was a recognized risk factor for infection with hepatitis C, although tattooing was less of a risk factor. He further explained that although heavy alcohol use was not a means of transmission in and of itself, studies had shown a high prevalence of hepatitis C among alcohol abusers independent of their other risk factors, presumably because it is a marker for other undisclosed or unidentified risk factors. In that regard, the examiner noted that although the appellant currently refuted a history of various risk factors, it was unlikely to be incorrect for all the documented risk factors. In a May 2011 statement, the appellant argued that his alcohol consumption had been at acceptable, average amounts in his early twenty's to early thirties. Indeed, he claimed that several times between the ages of 23 and 42, he had gone "up to a year" without any alcohol consumption and that he had been "100% alcohol free since 1990." He also denied ever receiving a blood transfusion or abusing cocaine. Finally, the appellant claimed that all of his tattoos had been administered by a close friend who owned and operated an artist's studio and who used sterile applications and properly handled needles. In support of his claim, the appellant submitted a June 2012 letter from Bennet Cecil, M.D., who indicated that he had examined the appellant's service records and had concluded that it was "very likely" that the appellant had been infected with hepatitis C during service. He noted that although VA had indicated that the appellant used cocaine, had tattoos, and received a blood transfusion, the appellant had refuted those statements in his appeal. Dr. Cecil indicated that the appellant had not had a blood transfusion and that the appellant's tattoos were received after his hepatitis C diagnosis. Dr. Cecil further indicated that the appellant had been "shaved by military barbers using unsterile razors" and had "received airgun vaccinations which have been proved to transmit viral hepatitis." He noted that the appellant had been diagnosed as having cirrhosis in 2007, which took 20 to 40 years to develop, placing the infection onset during service. In support of his opinion, Dr. Cecil attached an article obtained from the internet regarding an outbreak of hepatitis B associated with jet injections in a weight reduction clinic. Applicable law Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). 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) (2011). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C.A. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis The appellant contends that he contracted hepatitis C during service as a result of jet airgun injector inoculations he received during boot camp. After carefully considering the evidence of record, the Board concludes that the preponderance of the evidence is against the claim. As a preliminary matter, the Board notes that the appellant's service treatment records are entirely negative for complaints or findings of hepatitis C. In fact, the record shows that the appellant was not diagnosed as having hepatitis C until 2001, approximately twenty-five years after service separation. The appellant does not contend otherwise. Although the record in this case establishes that hepatitis C was not identified during the appellant's active service or for approximately twenty-five years thereafter, as set forth above, service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In other words, if there is a causal connection between the current condition and service, service connection may be established. Godfrey v. Derwinski, 2 Vet. App. 354 (1992). After considering the record on appeal, however, the Board finds that the most probative evidence indicates that the appellant's current hepatitis C is not related to his active service or any incident therein, including jet airgun injector inoculations he recalls receiving during boot camp. As described in detail above, the evidence of record contains conflicting medical opinions regarding the etiology of the appellant's current hepatitis C. In an April 2010 opinion, a VA physician concluded that it was less likely than not that the appellant's hepatitis C had begun during service or was otherwise casually related to any incident of service, to include exposure to air jet inoculations. Conversely, in June 2012, Bennet Cecil, M.D., concluded that it was very likely that the appellant had been infected with hepatitis C during service from airgun vaccinations. In Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), the Court held that the rules on expert witness testimony delineated in the Federal Rules of Evidence provide "important, guiding factors to be used by the Board in evaluating the probative value of medical opinion evidence." Nieves-Rodriguez, 22 Vet. App. at 302. These factors are (1) the opinion is based upon sufficient facts or data. In other words, is the medical professional informed of sufficient facts upon which to base an opinion relevant to the problem at hand; (2) the opinion is the product of reliable principles and methods; and (3) the expert has applied the principles and methods reliably to the facts of the case. In other words, most of the probative value of a medical opinion comes from its reasoning. After carefully considering both medical opinions in light of these factors, the Board finds that the April 2010 opinion from the VA physician outweighs the opinion provided by Dr. Cecil. Both physicians have the expertise necessary to opine on the matter at issue in this case and considered the appellant's risk factor history in providing their opinions. The Board finds that the probative value of the opinion offered by Dr. Cecil, however, is significantly diminished by his reliance on an inaccurate factual premise. As set forth above, Dr. Cecil noted that although VA had indicated that the appellant had used cocaine, gotten tattoos, and received a blood transfusion after leaving military service, the appellant had "refuted those statements in his appeal." Relying on solely on the appellant's recent reports regarding his risk factors, Dr. Cecil determined that it was likely that the appellant contracted hepatitis C during service from airgun vaccinations which had been proven to transmit viral hepatitis. The Board, however, finds that the appellant's version of events regarding his hepatitis C risk factors, as relied upon by Dr. Cecil, is wholly lacking in credibility. For example, although the appellant now claims, and told Dr. Cecil, that he received all of his tattoos after being diagnosed as having hepatitis C, VA clinical records clearly establish that the appellant had multiple tattoos at the time of his hepatitis C diagnosis in 2001. Indeed, his VA treatment providers specifically cited the appellant's tattoos as a likely source of his hepatitis C infection. The Board also notes that in a prior statement received in January 2003, the appellant, in his own hand, indicated that he had received his tattoos between 1997 and 2000, prior to his hepatitis C diagnosis. The Board finds that the objective clinical records are far more probative than the appellant's recent version of events made in the context of a claim for compensation. The Board further finds that the record on appeal establishes a similar pattern of contradiction with respect to the appellant's other risk factors. See Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001) (recognizing the Board's inherent fact-finding ability); see also Caluza v. Brown, 7 Vet. App. 498, 511, 512 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996) (discussing the factors to be considered in determining the weight to be assigned to evidence, including inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, and desire for monetary gain). For example, although the appellant now denies ever having used cocaine, ever using alcohol excessively, or ever receiving a blood transfusion, on multiple prior occasions in clinical settings, he acknowledged a history of drug use, including cocaine and marijuana, as well as heavy alcohol use and a blood transfusion. The Board assigns far more probative weight to the appellant's earlier statements, made in the context of medical evaluation and treatment, than his recent statements which were made in pursuit of monetary benefits. Here, the Board notes that it has considered the appellant's recent claims to the effect that he has reviewed prior medical records and that such records show that he did not receive a transfusion during his ankle surgery. Questions of competency notwithstanding, given the appellant's pattern of contradictory statements and his failure to provide those records to VA, the Board finds that these statements are similarly lacking in credibility. The Board's conclusion regarding the appellant's credibility in reporting his risk factors is further strengthened by the opportunity to observe his demeanor at the September 2009 Board hearing. In view of the foregoing, the Board finds that Dr. Cecil's reliance on the appellant's recent version of his risk factor history significantly reduces the probative value of his opinion. In other words, because Dr. Cecil wholly discounted any post-service risk factors, including cocaine use, tattoos, and a blood transfusion, as potential sources of the appellant's hepatitis C infection, his opinion that the appellant was therefore likely infected during service through immunizations or unsterile razors is less probative as it is based on an incomplete and/or unreliable record. On the other hand, the VA physician expressly considered all of the appellant's documented risk factors both in service and thereafter, including his reports of sharing a razor in service and receiving inoculations from an jet gun during basic training. After considering all of these risk factors, he nonetheless concluded that it was less likely than not that the appellant's current hepatitis C virus had been contracted in service. The examiner explained that although transmission of the hepatitis C virus via jet gun was "a biological plausibility," a review of the medical literature indicated that it was not a significant risk factor for hepatitis C infection. Rather, in considering all of the appellant's risk factors in light of the available medical literature regarding the likelihood of transmission, the examiner concluded that it was less likely than not that the appellant's current hepatitis C was contracted during his period of active duty. Again, the Board finds that the VA medical opinion is persuasive and assigns it great probative weight. The opinion was rendered by a medical professional who has expertise to opine on the matter at issue in this case. In addition, the examiner addressed the appellant's contentions, based his opinion on a review of the appellant's claims folder, including the most pertinent evidence therein, and provided a rationale for his opinion, with reference to current medical literature. Based on the examiner's opinion, and given the applicable evidentiary standard, service connection is not warranted. Again, although the VA examiner acknowledged the biological possibility of transmission of the hepatitis C virus by jet airgun injectors, whether an event is "plausible" or "possible" is a significantly lower threshold than the "equipoise" standard necessary for a grant of the benefits. See Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied, 524 U.S. 940 (1998). In sum, the evidence shows that the appellant's hepatitis C was not clinically evident during active service or for many years thereafter and the most probative evidence of record indicates that his current hepatitis C is not causally related to his active service or any incident therein. For these reasons, the preponderance of the evidence is against the claim of service connection for hepatitis C. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER Entitlement to service connection for hepatitis C is denied. ______________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs