Citation Nr: 1430040 Decision Date: 07/02/14 Archive Date: 07/10/14 DOCKET NO. 04-14 023 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The Veteran served on active duty from June 1975 to June 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office in Little Rock, Arkansas (RO). In October 2013, the Board sought an advisory medical opinion from the Veterans Health Administration (VHA). After receiving the completed VHA medical opinion in December 2013, the Veteran and his representative had an opportunity to comment upon the VHA opinion and to offer argument and additional evidence. In January 2014, the Veteran filed a response but no additional evidence. The Board has the authority to obtain and consider expert medical opinions in compliance with 38 U.S.C.A. § 7109(a) without remanding the case for initial RO consideration of such evidence, and without obtaining a waiver of such consideration from the Veteran. 38 C.F.R. § 20.1304 (2013); see also Padgett v. Nicholson, 19 Vet. App. 84 (2005). Thus, the Board will proceed to a decision on the merits on the claim of entitlement to service connection for hepatitis C. FINDING OF FACT The preponderance of the competent, probative evidence of record demonstrates that the Veteran's hepatitis C was the result of illegal drug use. CONCLUSION OF LAW Hepatitis C was not incurred in active duty service. 38 U.S.C.A. §§ 105, 1131, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.1, 3.303, 3.301 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the Veteran's service connection claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). Proper notice from VA must inform the veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the veteran is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO's July 2003 letter, as well as the September 2003, March 2006, and November 2007 letters provided after the initial adjudication of the claim on appeal in August 2003, advised the Veteran of the foregoing elements of the notice requirements. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993). These letters also provided the Veteran with notice of what type of information and evidence was needed to establish disability ratings, as well as notice of the type of evidence necessary to establish an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). Accordingly, with these letters, the RO effectively satisfied the remaining notice requirements with respect to the issue on appeal. After the notice letters were provided to the Veteran, the claim was readjudicated in a May 2013 supplemental statement of the case. Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (finding that VA cured failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating claim and notifying claimant of such readjudication in the statement of the case). In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's available service treatment records, service personnel records, post-service VA treatment records, and private treatment records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran was also provided with a VHA medical opinion in conjunction with the service connection claim on appeal in December 2013 to clarify the etiology of his hepatitis C. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159; see McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The Board has found that the VHA medical opinion obtained by VA in December 2013 was adequate, as it was based upon a complete review of the evidence of record as well as consideration of the Veteran's lay assertions. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran's claim was previously before the Board in October 2007, October 2010, June 2012, and March 2013 and remanded for additional evidentiary development, to include verifying the Veteran's current mailing address and affording the Veteran VA examinations and medical opinions. A thorough review of the record showed substantial compliance with the October 2007, October 2010, June 2012, and March 2013 remand orders. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. The Veteran contends that he developed hepatitis C as a result of events during his period of active military service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, the evidence must show: (1) the existence of a present disability; (2) inservice incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). In general, for service connection to be granted 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. The evidence must further show a relationship between the claimed inservice injury and the Veteran's hepatitis C. Medically recognized risk factors for hepatitis C include: (a) transfusion of blood or blood product before 1992; (b) organ transplant before 1992; (c) hemodialysis; (d) tattoos; (e) body piercing; (f) intravenous (IV) drug use, with the use of shared instruments; (g) high risk sexual activity; (h) intranasal cocaine use (also with the use of shared instruments); (i) accidental exposure to blood products as a healthcare worker, combat medic, or corpsman by percutaneous, through the skin, exposure or on mucous membrane; and (j) other direct percutaneous exposure to blood, such as by acupuncture with non-sterile needles, or the sharing of toothbrushes or shaving razors. See VBA Training Letter 211A (01-02) (April 17, 2001). Hepatitis C is spread primarily by contact with blood and blood products, with the highest prevalence of hepatitis C infection among those with repeated, direct percutaneous (through the skin) exposure to blood (i.e., IV drug users, recipients of blood transfusions before screening of the blood supply began in 1992, and hemophiliacs treated with clotting factor before 1987). VBA Fast Letter 04-13 (June 29, 2004). Hepatitis C can potentially be transmitted with the reuse of needles for tattoos, body piercing, and acupuncture. Id. The large majority of hepatitis C infections can be accounted for by known modes of transmission, primarily transfusion of blood products before 1992 and injection drug use. Id. Transmission of hepatitis C virus with air gun injections was "biologically plausible", despite the lack of any scientific evidence so documenting. Id. Service treatment records were silent as to any findings, complaints, or diagnosis of hepatitis C. Service personnel records showed that the Veteran's military occupational specialty was Laundry and Bath Specialist. Post-service private and VA treatment records noted the Veteran's initial treatment for hepatitis C in 1998, as well as documented polysubstance dependence after service. In a May 2013 VA treatment note, the Veteran reported that he had been sober for over 15 months. He stated that he had been clean from alcohol, cocaine, and cigarettes. In an August 2003 VA hepatitis risk factors questionnaire, the Veteran indicated that he had used IV drugs, engaged in high risk sexual activity in service, and shared toothbrushes and razor blades. In written statements of record, he has asserted that he contracted hepatitis C after sharing needles while doing heroin during service in 1976 and 1977 and/or from jet injector guns used to administer his inservice inoculations during basic training. While VA's thorough attempts to corroborate the Veteran's asserted inservice sexual assault have proved unsuccessful, the Veteran has repeated claimed that he was kidnapped by men at gunpoint while on leave in Germany and sexually assaulted. In the January 2012 VA examination, the examiner noted that the Veteran had been previously diagnosed with hepatitis C. With respect to risk factors, the examiner referenced the 2003 questionnaire wherein the Veteran reported IV, but not intranasal, drug use. The Veteran also reported sharing razorblades during his active duty service, but denied getting tattoos. The examiner found no history of acupuncture, blood transfusions, or high risk sexual activity, but noted that the Veteran smoked marijuana and consumed alcohol until one year before the examination. The examiner characterized the Veteran's use of marijuana and alcohol as additional risk factors for hepatitis C. Ultimately, the examiner opined that the Veteran's hepatitis C was "less likely as not (less than 50 percent probability)" incurred in or caused by the claimed inservice risk factors. The examiner based the opinion on the Veteran's "[h]istor[y] of [intravenous] drug use and [service treatment records]." The examiner then opined as follows: Less than likely that [V]eteran's military service is nexus for hepatitic C from inoculations. Rationale is information in 2003 questionnaire of [intravenous] drug usage, not in military service. The Veteran was afforded another VA examination in the form of a July 2012 VA examination for hepatitis. The VA examiner, a VA Advanced Practice Nurse, diagnosed hepatitis C and checked IV drug use and high risk sexual activity as the Veteran's applicable risk factors. After reviewing the claims file and examining the Veteran, the VA examiner opined that the claimed condition was less likely than not, less than 50 percent probability, incurred in or caused by the claimed inservice injury, event, or illness. In the rationale section, the VA examiner noted that with history of drug abuse in past, as well as stated high risk sexual activity while in Germany in service, it was more likely that the Veteran's hepatitis C was related to those risk factors. The examiner commented that the Veteran's last positive lab for cocaine use was on July 15, 2011. The examiner noted that there was no positive medical evidence found in medical literature review for nexus for military inoculation by jet injectors causing blood borne illnesses. The examiner indicated that there was confirmed evidence of association of hepatitis C with drug use, both intranasal and IV drug use, as well as high risk sexual activity. In conclusion, the examiner restated that there was no medical literature data to confirm inoculations with jet injectors caused blood borne disease and determined there was no nexus for hepatitis C related to service. In the January 2013 VA clarification medical opinion, the same VA examiner opined that it was "less likely as not" that the Veteran's hepatitis C was related to service. After review of the claims file and medical records provided, the examiner indicated that there was no evidence of treatment for high risk sexual behavior or drug abuse in service in Germany, only the previous statements of the Veteran. The examiner concluded that it was less likely as not that the Veteran's hepatitis C was related to service and more likely related to his drug abuse. It was indicated that review of medical records provided nexus for that opinion. In an additional April 2013 VA clarification medical opinion, the same VA examiner discussed the evidence of record. The examiner then opined that the etiology of the Veteran's hepatitis C was "greater than 50 percent probability" related to IV drug use. The examiner acknowledged the Veteran's claims of high risk sexual behavior but noted that there was no documentation in the record for any sexual diseases or conditions. Thereafter, the examiner again indicated that jet injectors are not and have never been a source of transmitting hepatitis C, as they were not reused. It was indicated that reviews of literature yielded no indication for any injectors associated with hepatitis C. The examiner highlighted that there were no medical records or service treatment records containing documentation of sexual abuse, participation in high risk sexual activity, or use of IV drugs while the Veteran was stationed in Germany during active service. With no documentation of the Veteran's accounts of sexual abuse, participation in high risk sexual activity, or IV drug use during service, the examiner indicated that it would be mere speculation to say which risk behavior was the cause of his hepatitis C. The examiner commented that "no one with any degree or expertise can answer this question precisely". Thereafter, the examiner included a copy of a medical reference article discussing epidemiology and transmission of the hepatitis C virus infection. The January 2012 and July 2012 VA examination reports, as well as the January 2013 and April 2013 VA clarification opinions referenced above are inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The January 2012 examiner did not discuss why inoculations, including via jet injectors, were less than likely the nexus of the Veteran's hepatitis C and did not discuss why it was more likely that the Veteran's hepatitis C was due to his post-service IV drug use than his inservice risk factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that a medical opinion that contains only data and conclusions without any supporting analysis is accorded no weight); Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007) (finding that a medical opinion is inadequate when it does not address all aspects of a claim when the medical examiner was directed to do so by the Board). The Board further notes that medical opinions contained in the July 2012 VA examination report, as well as the January 2013 and April 2013 VA medical opinions were all provided by the same examiner. Regarding the July 2012 VA examination report and January 2013 VA medical opinion, the examiner's opinion relating the Veteran's hepatitis C to drug use when the Veteran reported inservice IV heroin use, as well as documented post-service drug use was found to be ambiguous. In addition, simply noting that a review of medical records provided nexus for the medical opinion does not constitute a complete rationale. Regarding the April 2013 medical opinion, the examiner again opined that the etiology of the Veteran's hepatitis C was IV drug use but then found that it would be mere speculation to say which risk behavior was the cause of his hepatitis C. Finally, the examiner continually indicated that jet injectors were not and have never been a source of transmitting hepatitis C. Language supplied by VA, included for that examiner's perusal, clearly notes that transmission of hepatitis C virus with air gun injections was "biologically plausible", despite the lack of any scientific evidence so documenting. The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Sklar v. Brown, 5 Vet. App. 140 (1993). In an October 2013 request for a VHA medical opinion, a VA physician with a specialty in hepatology was requested to furnish an opinion as to whether the Veteran's current hepatitis C was casually related to his military service. The Board requested that the physician list and discuss all of the Veteran's documented inservice risk factors and post-service risk factors for hepatitis C. The physician was instructed to rank the documented risk factors relative to the probability that the currently confirmed hepatitis C was etiologically related to the risk factor. In particular, the physician was asked to address the Veteran's clearly asserted inservice IV drug abuse; high risk sexual activity, to include the claimed inservice sexual assault while on leave and stationed in Germany; inservice inoculations, including jet injectors; and his documented post-service drug and alcohol use. In the December 2013 VHA medical opinion, a VA physician discussed a very detailed review of the record. Responding to the inquiry of whether hepatitis C was causally related to military service, the physician reported with greater than 90 percent certainty that the Veteran contracted hepatitis C through IV drug use. In reviewing the record, the physician noted the Veteran's assertions of beginning to use IV drugs during service in 1977 and periodically through 1983. The physician indicated that it would be speculative to suggest when transmission occurred, as the Veteran's risk would presumably be distributed over that time period. It was further noted that the Veteran transitioned to non-IV drug use, including smoking crack cocaine, marijuana, and alcohol that caused him difficulties for the following 20 years. The physician highlighted that while those activities were associated with a positive hepatitis C status, they did not suggest a mechanism of transmission. The physician ultimately stated that the Veteran's transmission did not take place subsequent to IV drug use. It was indicated that previous reviews underestimated the likelihood of transmission during the Veteran's active duty. The physician then opined that the second most likely mechanism of transmission for the Veteran was through high risk sexual activity. It was noted that the Veteran's account of inservice sexual assault was consistent through the medical record and that confirmation of gram-negative intracellular diplococci was found in the record in 1977, substantiating the claim of high risk sexual activity. While the physician agreed that it was "less than likely" that the Veteran's inservice inoculations led to his current hepatitis C, it was highlighted that most cases of hepatitis C transmission were asymptomatic and that symptoms would not have manifested at the time of service separation in 1978. The physician acknowledged that there was no documented frequency of IV drug use during service, as well as no evidence during service supporting the consistently asserted sexual assault at that time. In ranking the order of the Veteran's documented risk factors during service and post service, the physician provided the following list: IV drug use (greater than 90 percent likelihood) with a 50 percent probability of hepatitis C being contracted due to inservice IV drug use and 50 percent probability of hepatitis C being contracted due to post-service IV drug use; sexual activity (five percent likelihood) with the Veteran consistently asserting he was an inservice victim of sexual assault; non-IV drug use (less than one percent); toothbrushes and razor blades (less than one percent); inoculations (zero percent likelihood); transfusions (zero percent likelihood); and tattoos (zero percent likelihood). After a thorough review of the evidence of record, the Board concludes that service connection for hepatitis C is not warranted. As an initial matter, the Board is cognizant that it remanded this matter for additional development on many occasions, including in October 2007, October 2010, June 2012, and March 2013. The multiple VA examination reports and clarification medical opinions are inadequate for various adjudicative purposes discussed in detail above. However, the most current December 2013 VHA medical opinion is found to be most probative medical evidence that specifically addresses the question of whether the Veteran's current hepatitis C was casually related to his military service based on the entire evidence of record. In this case, the preponderance of the competent probative evidence demonstrates that the Veteran's hepatitis C was the result of IV drug use. As discussed above, the VA physician opined with greater than 90 percent certainty that the Veteran contracted hepatitis C through IV drug use in the December 2013 VHA medical opinion. Service connection cannot be granted for illegal drug abuse. Section 8052 of the Omnibus Budget Reconciliation Act (OBRA) of 1990, Pub. L. No. 101-508, § 8052, 104 Stat. 1388, 1388-91, prohibits, effective for claims filed after October 31, 1990, payment of compensation for a disability that is a result of a veteran's own alcohol or drug abuse. Moreover, Section 8052 also amended 38 U.S.C.A. § 105(a) to provide that, with respect to claims filed after October 31, 1990, an injury or disease incurred during active service will not be deemed to have been incurred in line of duty if the injury or disease was a result of the person's own willful misconduct, including abuse of alcohol or drugs. See 38 U.S.C.A. § 105 (West 2002); 38 C.F.R. §§ 3.1(m), 3.301(d) (2013). In addition, the VA physician clearly did not determine by a 50 percent or greater probability that the Veteran's currently confirmed hepatitis C was etiologically related to any of his other documented risk factors, such as high risk sexual activity, non-IV drug use, sharing toothbrushes and razor blades, inoculations, transfusions, and tattoos. In light of the cumulative evidence of record, the Board considers the December 2013 VHA medical opinion to be of great probative value in this appeal. Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (finding that it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)); Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (noting that the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion he reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). Significantly, neither the Veteran nor his representative has presented, identified, or alluded to the existence of any medical opinion that directly contradicts the December 2013 VA physician's conclusions. The only evidence of record which relates the Veteran's hepatitis C to his active military service is the statements made by the Veteran and his representative. However, the statements from the Veteran and his representative are not competent evidence sufficient to show that hepatitis C is related to his active military service. Evidence of the etiology of the Veteran's hepatitis C requires medical diagnosis based on diagnostic testing, which the Veteran and his representative are not trained to perform. See Jandreau v. Nicholson, 492 F.3d at 1377 (holding that whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the United States Court of Appeals for Veterans Claims). The Veteran's statements are competent evidence as to observable symptomatology and events, including his inservice risk factors. See Barr, 21 Vet. App. at 307 (noting that lay testimony is competent to establish observable symptomatology but not competent to establish medical etiology or render medical opinions); Washington v. Nicholson, 21 Vet. App. 191, 195 (2007) (holding that, "[a]s a layperson, an appellant is competent to provide information regarding visible, or otherwise observable, symptoms of disability"). However, the statements that the Veteran's hepatitis C was incurred during or as a result of service draw medical conclusions, which the Veteran and his representative were not qualified to make. Although lay persons are competent to provide opinions on some medical issues, the etiology of the Veteran's hepatitis C falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau, 492 F.3d at 1377. Accordingly, service connection for hepatitis C is not warranted. The evidence of record simply does not establish that the Veteran's hepatitis C was incurred in or caused by his military service. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for hepatitis C is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs