Citation Nr: 0811079 Decision Date: 04/03/08 Archive Date: 04/14/08 DOCKET NO. 00-13 902 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The veteran had active military service from July 1974 to July 1976. This appeal initially came before the Board of Veterans' Appeals (Board) from a December 1999 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, that denied service connection for hepatitis C. The Board remanded the case in February 2004 and in June 2005 for further development. In a September 2006 decision, the Board denied the claim. The veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In January 2008, the Court remanded the decision to the Board for consideration of matters raised in a Joint Motion for Remand. FINDINGS OF FACT 1. The veteran has provided competent and credible testimony of a blood transfusion during active service, even in the absence of an official record of such a blood transfusion. 2. The veteran also received a tattoo during active service. 3. Medical evidence tending to associate the veteran's hepatitis C with active service has been submitted. CONCLUSION OF LAW Resolving reasonable doubt in favor of the veteran, hepatitis C was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for in 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007), VA must notify the claimant concerning the evidence necessary to present the claim and must assist the claimant in the development of that claim. In this case, the Board is granting in full the benefit sought by the claimant. Accordingly, any error committed with respect to either the duty to notify or the duty to assist is not prejudicial to the claimant. Service Connection Service connection will be awarded for disability resulting from injury or disease incurred in or aggravated by active service (wartime or peacetime). 38 U.S.C.A. §§ 1110; 1131 (West 2002), 38 C.F.R. § 3.303(a) (2007). Service connection requires competent evidence showing: (1) medical or, in certain circumstances, lay evidence of in- service incurrence or aggravation of a disease or injury; (2) medical evidence of current disability; and (3) medical evidence of a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). In Caluza, the Court also stressed that § 3.102 states, "The reasonable doubt doctrine is also applicable even in the absence of official records, particularly if the basic incident arose under combat, or similarly stressful conditions [emphasis added], and is consistent with the probable results of such known hardships." Caluza, 7 Vet. App. at 509. Each disabling condition shown by service medical records, or for which the veteran seeks service connection, must be considered on the basis of the places, types, and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence. 38 C.F.R. § 3.303(a). "Direct" service connection may be granted for any disease not diagnosed initially until after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Once the evidence has been assembled, the Board assesses the credibility and weight to be given to the evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) and cases cited therein. When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2007). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that a veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. According to 38 U.S.C.A. § 1154(a), the Secretary must consider the places, types, and circumstances of the veteran's service, his unit's history, his service medical records, and all pertinent lay and medical evidence in the case. More favorable consideration is afforded combat veterans under 38 U.S.C.A. § 1154(b), but, because the veteran was not in combat, he will not be afforded this consideration. The service medical records (SMRs) include a January 1976 alcohol and drug abuse control program intake record, DA (Department of the Army) Form 2985-2R, that notes a history of drug use; however, the method of entry in each case was either ingestion, snort/sniff, or smoking. It was specifically indicated that the veteran had no intravenous use. A DA Form 4465, ADAPCP Military Client Intake and Follow-up Record`, dated January 23, 1976, reflects use of amphetamines, opiates, cocaine, hashish, cannabis sativa, alcohol, and hallucinogens, but only by means other than by needle. A January 23, 1976, SMR entry notes amphetamine, hash, and MJ use with past use of IV, but now only snorts. A January 27, 1976, SMR reflects complaint of and treatment for vomiting. A slight amount of blood was seen. The impression was questionable viral gastroenteritis. A June 1976 separation examination report notes no relevant abnormality, except a tattoo on the right shoulder that was not noted at entry. The veteran requested service connection for hepatitis C in October 1999. He reported that in the fall of 1975, he was given whole blood for a bleeding ulcer in Germany. He submitted 1999-dated VA outpatient treatment reports containing a diagnosis of hepatitis C. In a December 1999 hand-written, signed statement, the veteran reported that during a field training exercise, he became ill after eating his combat rations. He claimed that he was treated at a field tent and then evacuated to the rear area where he was given a blood transfusion. In a February 2000 signed statement, the veteran added that he was healthy prior to active service. He recalled that he was transfused with a bag of type A+ whole blood during active service. A June 2000 VA Form 9, Substantive Appeal, indicates that the veteran reported that while on a field exercise, he developed bleeding ulcers that necessitated a blood transfusion. He recalled that he became very ill during a field exercise and was evacuated to the rear where a medical facility started him on a regimen of drugs and a whole blood transfusion. In January 2001, the veteran testified before an RO hearing officer that he has never used intravenous drugs. He recalled that blood work in the early 1990s first indicated a reaction to hepatitis viruses. He testified that his physicians felt that active service in the 1970s was a possible source of hepatitis virus exposure. He also testified that others have typed or printed some of his correspondence to VA and that these persons occasionally entered erroneous facts, such as prior reports of a peptic ulcer. As noted in the introduction, in February 2004, the Board remanded the case for an examination and a medical opinion. The veteran underwent a VA compensation examination in March 2004. The examiner noted that hepatitis C was first discovered in the early 1990s. During the examination, the veteran reported a hospitalization during active service where he was given fluids intravenously. He thought that he had received blood. He also recalled getting a tattoo in Frankfurt, Germany. He reported that he is a trained radiologist and computerized tomography (CT) technician who has worked around intravenous needles for many years. The examiner felt that it was speculative to link hepatitis C to active service based on the limited medical records available. Thus, no opinion was offered. The examiner did not supply her or his credentials. In March 2004, the veteran reported that he never used intravenous drugs, but during service he was exposed to many soldiers who did. He acknowledged getting a tattoo while serving in Germany. In June 2005, the Board remanded the case for a VA examination and opinion to be supplied by a physician with appropriate expertise. In July 2005, the veteran reported that in 1976 there was no test for hepatitis C. He submitted a resume' of credentials as a radiologist. He stated that he obtained his tattoo while at basic training at Fort Knox, rather than in Germany. He argued that a blood transfusion in Germany was his only risk factor for hepatitis C. In January 2006, a VA physician (a medical doctor) reviewed the claims files and elicited relevant history from the veteran. The physician noted a tattoo during active service, a reported blood transfusion during active service, and the veteran's denial of any other risk factor for hepatitis C. The current diagnoses included hepatitis C with liver transplant in 2001. The physician offered the following: In summary, the medical evidence supports his current disability claim. Medical evidence supports the occurrence of the disease in military service secondary to a blood transfusion and the medical evidence supports the nexus between the disease and his current disability. ... With respect to the requested opinion, it is my opinion that his hepatitis C is most likely caused by or the result of blood transfusion received during military service. It is my opinion that I agree completely with the opinions expressed by the March 2004 VA examiner. In August 2006, the veteran's representative argued that the tattoo received during active service is a risk factor for hepatitis C. The Board denied service connection for hepatitis C in September 2006; however, the Court remanded the case in January 2008. A Joint Motion for Remand indicates that the Board had not provided adequate reasons and bases for rejecting the veteran's lay testimony that he underwent a blood transfusion during active service. The Board's stated reason for rejecting the lay testimony was that the SMRs did not confirm a blood transfusion. The parties stipulated that this position is inconsistent with case law that prohibits rejecting lay evidence simply because it is uncorroborated by SMRs, citing Buchanan, Kowalski, and Swann, infra. In Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006), the Federal Circuit stressed that the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. If the Board concludes that the lay evidence presented by a veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the veteran's ability to prove his claim of entitlement to disability benefits. In Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005), the Court stressed, "The Board may not disregard a medical opinion solely on the rationale that the medical opinion was based on a history given by the veteran." In Schwann v. Brown, 5 Vet. App. 229, 233 (1993), the Court stressed that a medical diagnosis "can be no better than the facts alleged by appellant." While not cited in the Joint Motion for Remand, other Court cases appear to be related. In Rowell v Principi, 4 Vet. App. 9, 19 (1993), the Court stressed, "Here, the Board must do more than simply point to an absence of medical evidence; it must offer some basis for finding the lay evidence insufficient to establish entitlement to benefits." In Cartright v. Derwinski, 2 Vet. App. 24 (1991), the Court stressed that lay evidence alone may be sufficient to place the evidence in equipoise and thus, under 38 U.S.C. § 5107(b) (formerly § 3007), establish entitlement to benefits). See also Ashmore v. Derwinski, 1 Vet. App. 580, 583-84 (1991); Hatlestad v. Derwinski, 1 Vet. App. 164, 169-70 (1991). In Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992), the Court stressed that VA regards lay statements to be competent evidence of descriptions of symptoms of disease, disability, or injury, but not the determination of an issue involving a question of medical expertise. See also 38 C.F.R. § 3.159. Finally, in Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) , the Federal Circuit held that even a lay diagnosis is competent if: (1) lay person is competent to identify the medical condition; (2) lay person is reporting a contemporaneous medical diagnosis; or (3) lay testimony of symptoms at the time supports a later diagnosis by a medical professional). With the above case law in mind, the Board notes that the veteran has provided competent and credible evidence of a blood transfusion during active service. The SMRs tend to document a tattoo during active service. The veteran has supplied additional relevant and competent evidence of his own medical training in the radiology field. As a licensed radiologist, he alleges that he is aware of the hazards of contaminated intravenous needles, as his profession requires his presence in emergency rooms where bodily fluids tend to contaminate the surroundings. Thus, the Board will consider him not as an untrained lay witness, but rather as a credible medical professional competent to recognize an intravenous blood transfusion. Although the SMRs do not reflect a blood transfusion, neither do they refute such a claim. Thus, any remaining doubt over this material fact is resolved in the veteran's favor. The Board concludes that it is at least as likely as not that the veteran received a blood transfusion during active service, as claimed. The January 2006 medical nexus opinion is based chiefly on the veteran's account of a blood transfusion during active service in the 1970s with no other risk factor, although the tattoo is apparently also suspect. The SMRs do contain evidence of IV drug use, but other SMRs state that there was no IV drug use. The January 2006 VA medical opinion is very persuasive because the physician reviewed the documented history and found no inconsistency with facts alleged or reported by the veteran. Because hepatitis C was medically unknown in the 1970s, the fact that SMRs from the 1970s do not show hepatitis C is of no real consequence. Likewise, the fact that the SMRs are silent for a blood transfusion is of no real consequence where the veteran has supplied competent and credible evidence of such. After considering all the evidence of record, including the testimony, the Board finds that the evidence favors the claim. Service connection for hepatitis C must therefore be granted. ORDER Service connection for hepatitis C is granted. ____________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs