Citation Nr: 1343070	
Decision Date: 12/27/13    Archive Date: 01/07/14

DOCKET NO.  12-01 268	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUES

1.  Entitlement to service connection for hepatitis C. 

2.  Entitlement to service connection for cirrhosis of the liver.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

P. Childers, Counsel


INTRODUCTION

The Veteran served on active duty from July 1983 to August 1986.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).  

In August 2013 the Veteran testified by videoconference from the St. Paul RO before the undersigned Veterans Law Judge sitting in Washington, D.C.  A transcript of that hearing is in the claims file.


FINDINGS OF FACT

1.  The Veteran did not have any liver disorder on entry into service.

2.  The Veteran received multiple blood transfusions during service; and he does not have a history of any other risk factors for hepatitis C.

3.  The Veteran's cirrhosis of the liver is related to his hepatitis C.


CONCLUSIONS OF LAW

1.  The criteria for a grant of service connection for hepatitis C are met.  38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013).

2.  The criteria for a grant of service connection for cirrhosis of the liver are met.  38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.310 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In light of the fully favorable determination in this decision, no discussion of compliance with VA's duty to notify and assist set out under the VCAA is necessary.

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service.  38 C.F.R. § 3.303.  Disorders diagnosed after discharge may also be service connected if all the evidence, including that pertinent to service, establishes that the disorder was incurred in service.  38 C.F.R. § 3.303(d).  

Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury.  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability.  C.F.R. § 3.310(a).  See also Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).  

On review of the evidence the Board finds that service connection for hepatitis C and cirrhosis is warranted.

Facts

In November 1985 the Veteran was involved in a motor vehicle accident during service.  There is no record of any injury to the liver, but he did sustain multiple orthopedic injuries that required surgery.  Service records confirm that he was given "numerous transfusions" during this surgery.  See February 1986 Medical Board records.

According to VA's Compensation and Pension service, tainted blood transfusions cause hepatitis C (see, e.g., VA C&P liver examination worksheet); and there was no reliable test for screening blood donors for the specific hepatitis C virus until 1992.  See Fast Letter 99-41.  

In his responses to a Risk Factors for Hepatitis Questionnaire signed by the Veteran in March 2011, the Veteran denied any at risk hepatitis C behaviors other than the blood transfusions during service.  He also wrote, and testified, that soon after separation from service (in or around 1987) he volunteered to donate blood because he was feeling better, but was rejected as a donor.  See March 2011 statement in support of claim.  According to the Veteran, the phlebotomist sent the Veteran a letter advising that the Veteran had "non A, non B hepatitis," and that he would never be able to donate blood.  Id.

Medical evidence, including liver function tests dating from 2010, confirm a diagnosis of hepatitis C; and a liver biopsy in 2011 confirms that the Veteran's liver is now cirrhotic.  In a letter dated in January 2011 a private gastroenterologist emphasized that the Veteran's cirrhosis was caused by his hepatitis C.  

Analysis

Preliminarily, the Board notes that it has never been suggested that the Veteran was not in line of duty during his 1985-86 inpatient care, during which time he received blood transfusions; so the Board finds that his earlier involvement in a motor vehicle accident while intoxicated, and his incurrence of numerous orthopedic fractures during that accident, does not preclude service connection for liver disease due to tainted blood transfusion.  (If, in the drinking of a beverage to enjoy its intoxicating effects, intoxication results proximately and immediately [emphasis added] in disability, the disability will be considered the result of the person's willful misconduct.  38 C.F.R. § 3.301.  The Veteran's transfusions were not a proximate and immediate result of his intoxication.  )  

According to the medical evidence of record, tainted blood transfusions cause hepatitis C; there was a high probability of tainted blood transfusions prior to 1992; and the Veteran was given blood transfusions prior to 1992 while on active duty service.  This evidence, which is uncontroverted, is highly probative evidence in support of the Veteran's claim of service connection.  See Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (providing that the Board, as fact finder, must determine the probative value or weight of the admissible evidence).  

Moreover, based on the consistency of the Veteran's assertions with the medical evidence of record (i.e., no information or evidence of any intravenous drug use, illicit drug use, promiscuity, or other sharing/exchanging of bodily fluids), and in the absence of evidence to the contrary, the Board finds that the Veteran is a credible witness, and his assertion that his hepatitis C is related to his receipt of tainted blood during blood transfusions to be convincing.  See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) (holding that "nothing in the regulatory or statutory provisions . . . require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself").  And the only blood transfusions that this Veteran has ever had were in 1985-86; during service.  The weight of the evidence is therefore in favor of the claim for service connection for hepatitis C.  38 C.F.R. § 3.303.  As the Veteran's cirrhosis is secondary to his hepatitis C, service connection for cirrhosis is in turn warranted.  38 C.F.R. § 3.310.


ORDER

Service connection for hepatitis C is granted.

Service connection for cirrhosis of the liver is granted.




____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs