Citation Nr: 1428737 Decision Date: 06/25/14 Archive Date: 07/03/14 DOCKET NO. 12-09 654 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in White River Junction, Vermont THE ISSUES 1. Entitlement to service connection for hepatitis C. 2. Entitlement to service connection for a back disorder. REPRESENTATION Appellant represented by: Vermont Office of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from September 1968 to July 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the VA Regional Office (RO) in White River Junction, Vermont. In September 2012, the Veteran testified at a hearing conducted before the undersigned. A transcript of the hearing has been associated with the claims file. At his hearing, the Veteran submitted new evidence pertaining to the issue of service connection for hepatitis C without a waiver of RO review. As the Board is granting that benefit in full, the Veteran is not prejudiced by the Board's review of that evidence. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. In September 2012, prior to the promulgation of a decision in the appeal, the Veteran withdrew from appellate review his appeal of the claim for service connection for a back disorder. 2. The Veteran has hepatitis C that is as likely as not related to his military service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for service connection for a back disorder by the Veteran have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2013). 2. The criteria for service connection for hepatitis C have been met. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. Withdrawal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2013). Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran has withdrawn the appeal for entitlement to service connection for a back disorder. See September 2012 statement. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal of this issue and it is dismissed. B. Service Connection Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. A letter dated June 29, 2004, from the Veterans Benefits Administration (VBA) 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." Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. The Veteran's service treatment records (STRs) reflect no treatment for, or diagnosis of hepatitis C. A July 1968 treatment record shows that the Veteran reported that his wife felt that he had yellowing around the eyes. Examination was normal and the Veteran was diagnosed with malaise of questionable etiology. The record shows that liver enzymes were to be tested, but the Veteran's STRs do not include the results of any tests. The Veteran's STRs show that he had surgery for his wrist in March 1972; the records do not show that he had a blood transfusion in connection with this surgery. His June 1972 separation examination revealed all clinically normal systems; in his report of medical history, he denied jaundice or hepatitis and liver trouble. Post-service treatment records reveal that the Veteran denied all risk factors for hepatitis C in November 2004. He was first diagnosed with hepatitis C in January 2005. One of the January 2005 treatment records show that the Veteran could not think of any risk factors except for working at an assisted living facility. However, he could not think of a particular incident at that time at the work place for exposure. A February 2005 record shows that the Veteran caught hepatitis C 30 years ago (intranasal cocaine use and air gun inoculation during Vietnam). The record shows that he had no other risk factors. A December 2009 record shows that a biopsy revealed some progression of disease, but that it was not yet cirrhosis; however, the post-operative diagnosis from the biopsy was hepatitis C cirrhosis. A February 2010 record shows that the Veteran did not yet technically have cirrhosis, he was close with a stage of 5/6. The Veteran was afforded a VA examination in May 2010. Following examination, the examiner opined that the Veteran's hepatitis C was not caused by air gun inoculation. The examiner noted that although the Veteran's STRs show that he reported yellowing of the eyes, examination was normal. The examiner noted that the STRs showed that liver enzymes were to be tested, but were not found in the claims file. The examiner opined that if they were done and found abnormal, the Veteran would have been seen in follow-up. The examiner noted that hepatitis C risk factors were silent for air inoculations as a risk factor. The examiner also noted that in response to an email, the VA Director of Clinical Public Health Programs responded that a VA cooperative study showed that while air gun inoculation remained a theoretical possibility for transmission, there was no sound scientific data showing evidence of an actual association. The Veteran submitted a medical opinion from S.L., M.D. dated in September 2011. He opined that the 2009 biopsy shows that it was evident that the Veteran developed cirrhosis at that time. [As noted above, while the post-operative diagnosis from the biopsy was cirrhosis, subsequent VA treatment records show that the Veteran did not yet technically have cirrhosis.] Dr. S.L. opined that it takes between 30 and 40 years of infection to develop cirrhosis, which would suggest that the Veteran's hepatitis C could have been acquired as early as 1969. He noted the Veteran's STR showing that he was seen for a recent history of jaundice and that the question of malaria was raised. [This is incorrect as the STR actually shows malaise.] Dr. S.L. noted that at that time, there were no diagnostic tools available for detection of hepatitis C. He opined that it was quite possible that that episode of jaundice was the first manifestation of hepatitis C and that there was a greater than 50 percent chance that that was the case. Dr. S.L. concluded that based upon the timing of the initial episode of jaundice, it was plausible that hepatitis C was acquired as a consequence of exposure to an air gun device. At his September 2012 hearing, the Veteran reported risk factors of air gun inoculation and a blood transfusion during his wrist surgery. September 2012 Hearing Transcript (T.) at 3. He denied risk factors such as intravenous drug use, same-sex and high risk sexual activities, and tattoos. Id. at 4-5. The Veteran testified that when he received air gun inoculations in service, everybody in front of him had blood dripping off their arm and the Veteran himself had blood dripping off his arm when he was done. Id. at 5. He testified that he did not recall seeing anybody swab any guns off and no people were swabbed off. Id. Based on a review of the evidence and in affording the Veteran the benefit-of-the-doubt, the Board concludes that service connection for hepatitis C is warranted. In this case, the VA treatment records in 2005 show that the Veteran has had hepatitis C for approximately 30 years; the Veteran's military service was from 1968 to 1972, 33 to 37 years prior to 2005. Dr. S.L.'s opinion also places the onset of the Veteran's hepatitis C around the time of his service; although the Veteran's treatment records do not support Dr. S.L.'s report of the Veteran evidently having cirrhosis in 2009, the treatment records do show that the Veteran's hepatitis C were so advanced at that time as to be close to cirrhosis as discussed above. The Veteran has not reported any other risk factors except for the air gun inoculations; he is competent and credible to report what risk factors he has and does not have. The Board acknowledges the February 2005 record showing that intranasal cocaine was reported; however, the November 2004 record in which the Veteran denied risk factors included intranasal cocaine as a risk factor. The Veteran's testimony at his hearing did not indicate other confirmed risk factors besides the air gun inoculation. Although he testified about an in-service blood transfusion during his wrist surgery, his STRs from that surgery do not support that risk factor. In affording the Veteran the benefit-of-the-doubt, an air gun inoculation is the most likely risk factor identified during this appeal. Dr. S.L.'s opinion shows that it was plausible that the Veteran's hepatitis C was acquired due to his air gun inoculations. The Board acknowledges that Dr. S.L.'s opinion contains incorrect facts as noted above. However, this opinion is still probative in that it shows that a physician opined that air gun inoculations were a plausible risk factor in developing hepatitis C. Considered along with the VBA letter also showing that air guns were a plausible transmitter for hepatitis C, in addition to the Veteran denying other risk factors, the evidence supports a finding that the Veteran's hepatitis C is related to his military service. The Board acknowledges the negative opinion from the VA examiner. However, the examiner's own opinion shows that air gun inoculations do remain a plausible risk factor in developing hepatitis C. For the reasons set forth above, the Board is granting service connection based on the fact that the onset as estimated by physicians is around the time frame that the Veteran was in service and as the Veteran has not reported other risk factors besides the air gun inoculation. Therefore, notwithstanding the negative nexus opinion, the Board concludes that the criteria for service connection for hepatitis C have been met. Thus, after considering all of the evidence of record, the Board concludes that a finding of service connection is warranted. Service connection for hepatitis C is, therefore, granted. ORDER The appeal of entitlement to service connection for a back disorder is dismissed. Entitlement to service connection for hepatitis C is granted. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs