Citation Nr: 1432870	
Decision Date: 07/23/14    Archive Date: 07/29/14

DOCKET NO.  10-27 857	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

Entitlement to service connection for hepatitis C. 


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

R. Costello, Associate Counsel







INTRODUCTION

The Veteran served on active duty from July 1967 to July 1971. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of the Veteran Affairs (VA) Regional Office (RO) in Columbia, South Carolina.  


FINDING OF FACT

The Veteran's hepatitis C is not related to service.  


CONCLUSION OF LAW

The criteria for service connection for hepatitis C have not been met.  38 U.S.C.A §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). 


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duty to Notify and Assist

VA has a duty to notify and assist claimants in substantiating claims for VA benefits.  See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  In the present case, required notice was provided by letter dated in May 2010.  See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II); Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006).      

As to VA's duty to assist, all necessary development has been accomplished.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The Veteran's service treatment records and VA medical records have been obtained.

Also, the Veteran was provided a VA examination of his claimed hepatitis C in March 2010.  The Board finds sufficient evidence in the claims file to suggest the opinion was frustrated by the Veteran's refusal to give an accurate factual premise to the examiner.  The Board observes that the duty to assist is not a one-way street.  See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  A Veteran must be prepared to meet his obligations by cooperating with VA efforts to provide an adequate medical examination.  See Olson v. Principi, 3 Vet. App. 480 (1992).  As discussed below, to the extent that the March 2010 VA examiner could not opine without resulting to mere speculation, VA is not responsible for any such deficiencies because the Veteran did not cooperate in giving the examiner a reliable history.  Thus, the Board finds that the VA's duty to assist with respect to administration of a VA examination was adequate.  As the Veteran's account of his history has been found not to be credible, another VA examination in connection with his claim would be fruitless and is not warranted.  

Therefore, VA has satisfied its duties to notify and assist, and there is no prejudice to the Veteran in adjudicating this appeal.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 

II. Service Connection

The Veteran asserts he was exposed to hepatitis C from the same needle being used to vaccinate multiple soldiers in service.  Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a) (2013).  Service connection requires competent evidence showing the following:  (1) the existence of a present disability; (2) in-service 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, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111(2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995).

In this case, the evidence must show that the Veteran's hepatitis C was incurred in or aggravated by service.  Risk factors for hepatitis C include intravenous 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, shared toothbrushes or razor blades.  See VBA letter 211 (98-110), November 30, 1998.  

The following key points regarding the contraction of hepatitis C also have been recognized.  First, hepatitis C is spread primarily by contact with blood and blood products.  Second, the highest prevalence of hepatitis C infection is among those with repeated, direct percutaneous exposure to blood (i.e., intravenous drug users, recipients of blood transfusions before screening of the blood supply began in 1992, and hemophiliacs treated with clotting factor before 1987).  Third, hepatitis C can potentially be transmitted with the reuse of needles for tattoos, body piercing, and acupuncture.  VA Fast Letter 04-13 (June 29, 2004).

As such, VA has concluded that 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.  Yet VA also has recognized that transmission of hepatitis C via air gun injectors is "biologically plausible."  Id.

In determining whether service connection is warranted for a disability, VA must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 

The Veteran alleged in a January 2010 statement that the only risk factor for his current hepatitis C was blood to blood contact during service when the same needle was used to vaccinate multiple soldiers.  

Service treatment records note the Veteran was treated for venereal warts in February 1970.  In April 1970, he was seen for urethral discharge, resembling gonorrhea, and diagnosed with urethritis due to gonococcus in April 1970.  Service treatment records are negative for a diagnosis of any type of hepatitis or chronic liver disease.  The Veteran's separation examination in June 1971 did not note any tattoos on the Veteran, and the abdomen/viscera and endocrine system were clinically evaluated as normal. 

A February 2000 VA private medical record notes the Veteran reported intravenous drug abuse on three occasions during service.  The examination further noted the Veteran was diagnosed with hepatitis C in June 1999, over 25 years after service.  Subsequent medical records state that the Veteran has undergone treatment for hepatitis C, but treatment was unsuccessful.  

The Veteran underwent a VA examination to determine the etiology of his hepatitis C in March 2010.  The examiner noted that the Veteran reported having multiple sexual partners in service and tattooing in service despite the absence of any tattoos noted in the service treatment records.  The Veteran reported his only risk of getting hepatitis C was during basic training when the same needle was used to immunize multiple people.  The examiner concluded that he could not resolve the issue of whether or not the Veteran's hepatitis C was due to his risky sexual activity during service without resorting to mere speculation since the Veteran stated he was exposed to blood of other servicemen via vaccinations as well as admitting to getting tattooed in service.  The remaining medical evidence, including multiple VA treatment records is negative for any opinions on the etiology of the Veteran's hepatitis C.

Although the examiner was unable to conclude whether the Veteran's hepatitis C was due to risky sexual activity during service without resorting to mere speculation, in light of the record, efforts to obtain another VA examination or an addendum would be futile because the Veteran did not give an accurate factual premise for an examiner to make an opinion.  

The Veteran reported during his March 2010 VA examination that he received tattooing in service.  Later that month, he contended in his notice of disagreement that he has no tattoos and has never been tattooed.  It is clear from the examiner's opinion above that he relied on the Veteran's statement of being tattooed in service when giving his medical opinion.  

Additionally, at a February 2000 VA private treatment examination, the Veteran reported drug use three times in service.  During his VA examination in March 2010, the Veteran denied intravenous drug use.  VA Fast Letter 04-13 identifies injection drug use as the principal mode of transmission of Hepatitis C.  See VA Fast Letter 04-13, June 29, 2004.  The Board acknowledges that the isolated and infrequent use of drugs by itself will not be considered willful misconduct, rather, the progressive and frequent use of drugs to the point of addiction will be considered willful misconduct.  38 C.F.R. § 3.301(c)(3) (2013).  However, due to the Veteran's conflicting statements about his drug use, the Board finds the Veteran not credible to report past drug use.  

While the Veteran is competent to state he was vaccinated by the same needle used on multiple soldiers, the Board does not find him credible due to the Veteran's numerous inconsistent statements about his history in service.  

In weighing credibility, the Board may consider factors such as interest, bias, inconsistent statements, internal inconsistency, and consistency with other evidence of record.  See generally Caluza v. Brown, 7 Vet. App. 498 (1995).  The Veteran's service treatment records noted treatment for venereal warts in February 1970.  In his March 2010 notice of disagreement, the Veteran contended he was "NEVER" diagnosed with venereal warts during service, but rather, had them 10 years after service.  The Board finds that the medical treatment documented by in-service medical records is far more reliable than the Veteran's recollections of a medical condition that occurred 40 years ago.  

Due to the Veteran's inconsistent statements regarding drug use, tattoos in service and not being diagnosed with venereal warts during service, the Board does not find the Veteran credible to report a history of needles being reused for immunization during military service.  

The evidence thus weighs against a finding that the Veteran's hepatitis C is related in any way to service.  Therefore, service connection must be denied.  As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. At 53-56.


ORDER

Service connection for hepatitis C is denied. 




____________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs