Citation Nr: 1331664	
Decision Date: 10/02/13    Archive Date: 10/07/13

DOCKET NO.  09-45 769	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUE

Entitlement to service connection for hepatitis C.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

A. Lindio, Counsel


INTRODUCTION

The Veteran served on active duty from November 1974 to February 1982.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in June 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana.  

In March 2010, the Veteran testified at a hearing before a Decision Review Officer (DRO) at the RO.  A transcript of the hearing is of record.

The Board also notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim.  A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal.


FINDING OF FACT

Resolving all doubt in favor of the Veteran, hepatitis C is etiologically related to his in-service risk factors.  


CONCLUSION OF LAW

Hepatitis C was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

As the Board's decision to grant service connection for hepatitis C herein constitutes a complete grant of the benefit sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the implementing regulations. 
 
Service connection may be established for disability resulting from disease or 
injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury.  See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999).  

Specific to service connection claims for hepatitis C, the evidence must show that a Veteran's hepatitis C infection, risk factor(s), or symptoms were incurred in or aggravated by service.  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 and shared toothbrushes or razor blades.  See VBA letter 211B (98-110) November 30, 1998.

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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 

At his March 2010 DRO hearing and in documents of record, the Veteran claims to have been exposed to various hepatitis C risk factors while in service.  Specifically, he has reported that he was injected with air guns that were not sterilized between uses while at boot camp.  He has further stated that it was not uncommon to mix up razors while in the barracks.  The Veteran also indicated that he shared a dwelling with nine other soldiers and that the mosquitoes would bite more than one soldier during the night.  In this regard, the Board finds that the Veteran is competent to describe the nature and extent of his in-service experiences, including those he believes caused his hepatitis C.  See 38 C.F.R. § 3.159(a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994).  Moreover, such contentions are consistent with the Veteran's many years of service.  38 U.S.C.A. § 1154(a).  Therefore, the Board finds that the Veteran has competently and credibly testified to such experiences.  

The Veteran's service treatment records do not reflect findings referable to hepatitis, but do show treatment for venereal disease (May 1974 and August 1975) and surgery to the testes in June 1974.  
      
The Veteran also has a current diagnosis of hepatitis C.  Specifically, a September 2000 record from Dr. D.C. Pound noted that the Veteran was presumed to have chronic hepatitis C, which was first detected in 1992, but which the Veteran believed was acquired in the late 1970s.  October 2000 and March 2005 biopsy reports from St. Francis Hospital and Health Centers document findings of mild chronic hepatitis.  

In a September 2002 letter, Dr. D.C. Pound found that the Veteran had chronic hepatitis C, which he most likely acquired in the late 1970s while in the military.  

A December 2, 2008 VA medical record reflects that the Veteran had a history of drug use, including marijuana use.  He also reported taking hallucinogens, opiates, heroin and cocaine in his twenties (which corresponds to the 1970s).  In a December 22, 2008 VA medical record, the Veteran specified that he had used THC, LSD, mescaline, cocaine and heroin until 1987.  The VA medical provider found the Veteran had a 30 year history of alcohol and drug abuse/dependence resulting in hepatitis C.  

In October 2009, the Veteran underwent a VA examination for the liver, gall bladder and pancreas.  The Veteran reported risk factors of high risk sexual practice and sharing shaving razors in service.  He denied blood exposure, intranasal cocaine use and intravenous drug use.  The examiner found that sexual intercourse was considered less of a risk for infection with hepatitis C and noted a recommendation to discontinue the use of air gun injections for vaccinations by the military due to the transmission of hepatitis C.  

In a November 2009 addendum opinion, the October 2009 VA examiner provided an unclear statement about the Veteran's substance abuse and again noted there was information regarding the discontinuation of air gun injections for vaccinations by the military.  In a March 2010 addendum opinion, the October 2009 VA examiner noted reviewing multiple government cases in which disease has been alleged due to inoculation with air guns and that it has been found that there is no conclusive evidence of it.

The Veteran has submitted several print outs of health articles from the internet, a copy of the Maimes Report on Hepatitis C Infection in New Hampshire, and a copy of a February 1999 memo to the Navy Environmental Health Planning Board.

The RO has also associated a copy of a VA Fast Letter addressing the relationship between immunization with jet injectors and hepatitis C with the claims file.

The Board subsequently requested a medical expert opinion.  In August 2013, a Veterans Health Administration (VHA) physician provided an advisory medical opinion.  The August 2013 VA physician indicated that it was at least as likely as not that the Veteran's hepatitis C developed during or was caused by an incident of his military service.  The VA physician found that the source of the Veteran's hepatitis C could not be clearly identified.  The VA physician noted that the Veteran "had possible instance of exposure during military service with air gun injections and shared razors as well as outside of military duty with evidence to suggest high-risk sexual activity and use of drugs by intranasal route."  The VA physician further noted that the Veteran's in-service high-risk sexual behavior was also a risk factor.

The Board is compelled to point out that although the Veteran's drug use is a potential risk factor for hepatitis, such in-service drug use would constitute willful misconduct.  See 38 C.F.R. § 3.1(n) ("willful misconduct means an act involving conscious wrongdoing or known prohibited action...it involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences"); 38 C.F.R. § 3.301(c)(2) ("the deliberate drinking of a known poisonous substance or under conditions which would raise a presumption to that effect will be considered willful misconduct").  Direct service connection can be granted only when a disability was incurred or aggravated in the line of duty not as a result of the Veteran's own willful misconduct or, for claims filed after October 31, 1990, the result of his abuse of alcohol or drugs.  38 C.F.R. § 3.301(c)(2).  However, in addition to the Veteran's drug use, the Veteran's service included exposure to additional in-service risk factors, as previously documented.
 
The Board finds the evidence of record to be in relative equipoise as to whether the Veteran's hepatitis C developed due to his in-service hepatitis C risk factors.  Dr. D.C. Pound found that the Veteran had chronic hepatitis C, which was most likely acquired in service.  The December 2008 VA medical provider found that the Veteran had a 30 year history of alcohol and drug abuse/dependence resulting in hepatitis C.  Additionally, the October 2009 VA examiner provided an unclear medical opinion as to the etiology of the hepatitis C.  However, the August 2013 VA physician determined that the source of the Veteran's hepatitis C could not be identified, but that it did at least as likely as not develop during or was caused by an incident during military service.  Furthermore, in addition to the Veteran's drug use, the August 2013 VA physician noted in-service risk factors that included air gun injections, the sharing of razors, and high-risk sexual activity.

In light of the medical opinions and evidence of exposure to hepatitis C risk factors in service, other than drug use, the Board resolves all doubt in the Veteran's favor and finds that hepatitis C is etiologically related to his in-service risk factors.  Therefore, service connection for such disability is warranted. 



ORDER

Service connection for hepatitis C is granted.


____________________________________________
A.  JAEGER 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs