Citation Nr: 1320989 Decision Date: 06/28/13 Archive Date: 07/05/13 DOCKET NO. 09-08 342 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for hepatitis C infection. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran had active service from June 1969 to May 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran testified at a hearing before the undersigned Veterans Law Judge sitting at the RO in Atlanta, Georgia in February 2012. A transcript of the hearing has been associated with the claims file. This matter was previously remanded by the Board for further development in June 2012. In January 2013, the Appeals Management Center (AMC) granted service connection for posttraumatic stress disorder with depressive disorder. Therefore, this issue is no longer on appeal before the Board. A review of the Virtual VA paperless claims processing system reveals additional VA treatment records that were considered. FINDINGS OF FACT 1. A definitive cause for the Veteran's hepatitis C infection is not shown in the record. 2. The most significant risk factor among those identified by credible medical sources is the Veteran's combat experience of assisting wounded soldiers and recovering bloody remains of dead soldiers at the site of a transport aircraft crash. CONCLUSION OF LAW Resolving all doubt in favor of the Veteran, the criteria for service connection for hepatitis C infection are met. 38 C.F.R. §§ 1101, 1110, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. The Veteran served as a U.S. Army supply specialist with service in a combat engineering unit in the Republic of Vietnam from October 1970 to October 1971. He contends that he incurred a hepatitis C infection from immunizations using an air powered medical injection device. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303(a). In general, service connection requires competent evidence showing: (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). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. Absent a diagnosis of a chronic disease as defined in 38 C.F.R. § 3.309(a), service connection may not be awarded based on continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Hepatitis C is not among those chronic diseases specified in 38 C.F.R. § 3.309(a). Therefore, the theory of continuity of symptomatology is for consideration. Hepatitis C is also not among those diseases for which the presumption of service connection is available as a result of exposure to certain herbicide agents in Vietnam. 38 C.F.R. § 3.309 (e). Disorders diagnosed after discharge may still be service-connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service treatment records showed that the Veteran received numerous immunizations from July to September 1969. The records do not show the method used for the immunizations. The Board acknowledges that jet injection devices were generally in use in military clinics during this period of time where large number of soldiers received the immunizations at the same time. This is concurrent with the Veteran's basic and advanced infantry training shortly after enlistment. The Veteran credibly reported that he received immunizations with an air jet device. Service treatment records are silent for any symptoms or diagnoses of any type of hepatitis infection. In October 1971 near the end of a tour of duty in Vietnam, the Veteran sought treatment for withdrawal from constant smoking of heroin. A clinician advised the Veteran to immediately cease any further use and return to the clinic for treatment of any emergent withdrawal symptoms. In an April 1972 discharge physical examination, the Veteran denied any symptoms and the examining physician noted no physical abnormalities. A urine screening test for drug abuse was negative. In July 1984, a VA physician noted the Veteran's report of undergoing a right knee meniscectomy at a private hospital in about 1972 and a hemorrhoidectomy in 1983. There was no mention of blood transfusions during these surgical procedures. Records of VA outpatient clinic treatment from March 2005 to August 2012 are of record. In March 2005 and June 2005, VA clinicians noted the Veteran's report of diagnosis and treatment for hepatitis C at a university hospital starting approximately three years earlier. Records from the hospital dated in June and December 2004 and February 2005 were obtained and copied into the VA records. The Veteran reported previous immunizations for hepatitis A and B. Testing was negative for A and B but positive for hepatitis C, genotype I. The Veteran underwent two courses of treatment that did not reduce the viral load. The Veteran ceased private treatment because his medical insurance would no longer pay for it. The university clinicians did not address the risk factors or possible causes for the infection. In June 2005, a VA physician's assistant noted no current symptoms of the infection but noted the Veteran's positive reports of certain risk factors. The Veteran reported intravenous drug abuse and intranasal cocaine use starting in Vietnam and continuing for ten years; a long term monogamous sexual relationship with his spouse who was positive for hepatitis C; possible sharing of razors in service; and exposure to blood in combat from assisting wounded and recovering the bodies of dead soldiers. He could not recall receiving blood transfusions and denied multiple sexual partners, tattoos or body piercing, or any exposure related to civilian employment. In a June 2005 claim and a November 2005 statement, the Veteran reported that he received immunizations with a jet injection device during his training prior to deployment to Vietnam. Also in November 2005, the Veteran reported witnessing other soldiers being wounded or killed in Vietnam. In a November 2008 statement, the Veteran reported that he participated in the recovery of remains from a transport aircraft crash including bloody, partially decomposed bodies trapped in a tail section. The Joint Services Record Research Center confirmed the participation of the Veteran's unit in the recovery operation. VA outpatient treatment records after 2005 show that the infection persisted with no further anti-viral treatment. The Veteran has been diagnosed with cirrhosis of the liver and experiences weakness, fatigue, and right upper quadrant pain. In a February 2012 Board hearing, the Veteran repeated the account of exposure to blood while recovering bodies at the site of the aircraft crash. He also discussed heroin use but did not indicate the method of ingestion. He reported that several fellow soldiers by name had later died from hepatitis C infection but they did not participate in the body recovery. The Veteran continued to deny other risk factors such as multiple sexual partners and tattoos. In June 2012, the Board remanded the claim and directed an update of the file with the most recent VA treatment records and a VA examination and opinion on the etiology of the hepatitis C infection including consideration of drug use and immunizations with jet injection devices. The Board cited a November 30, 1998, VA letter on the subject of identification and origin of hepatitis. In July 2012, a VA physician noted a review of the claims file and accurately summarized the history of diagnosis and treatment but did not mention the Veteran's combat experiences. The physician noted the June 2005 risk factor summary and included an excerpt of the summary in her current report. The Veteran reported the he received needle and jet injection immunizations in service and that several members of his platoon have been diagnosed with hepatitis C and liver disease. The Veteran reported smoking heroin in service but denied any intravenous drug use or intranasal cocaine use. He continued to deny other risk factors such as multiple sexual partners, tattoos, transfusions, or sharing razors. The physician concluded that the Veteran's hepatitis C infection was less likely than not related to active duty service. The physician noted that it was unclear whether the Veteran engaged in intravenous drug use as he acknowledged it in 2005 but denied it in her examination. Further, the service treatment records document the Veteran's reported smoking heroin, which is not a risk factor. The physician noted that the Veteran had a monogamous relationship with his spouse who is also HCV positive, but it was not clear which partner was infected first. Moreover, the risk from a single infected partner is small. The physician noted that there is no medical literature to show a causal link of infection from jet injection immunizations. The physician noted that contact with blood from other infected persons is a risk factor. The Veteran was never an Army medic or a health care worker with the opportunity for a needle stick. However, the physician did not address the Veteran's combat experiences, particularly the recovery of partially decomposed remains at the crash site. The Veteran also credibly reported that he assisted wounded soldiers during his combat tour. The Board refers to an additional letter published by the VA Director of Compensation and Pension Service dated June 8, 2004 (FAST Letter 04-13). The Director addressed the relationship between jet injectors and the incurrence of hepatitis C. The Director noted that symptoms may not appear for many years following the infection. The Director noted that although it is biologically possible, there were no reported cases of a hepatitis C infection transmitted by jet injectors. A previously published misleading statement to the contrary was incorrectly attributed to a VA consulting physician. The Director confirmed the low probably of sexual transmission and that the primary means of transmission was contact with blood products through the skin. The Director noted that in addition to health care workers, an individual may be exposed as a consequence of being a combat veteran. The Director noted that the cause of infection is unknown in 30 percent of the chronic cases. The Board concludes that there is an equal balance of evidence both for and against service connection for hepatitis C. The Veteran is competent and credible to report on his experiences in service. His denial of any intravenous drug use was inconsistent, but service treatment records did support the use of drugs by smoking only and not intravenous injection. His reports of contact with wounded and dead soldiers are consistent with his duties in Vietnam, and the recovery of decomposing bodies at the site of the aircraft crash has been confirmed by JSRRC. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the likely cause of the Veteran's hepatitis C infection falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). The Veteran is not competent to determine the source of his infection as it requires medical analysis of the relative weight of risk factors in his history. The Board places probative weight on the opinion of the VA physician in 2012 as it is the only opinion of record and was based on a review of the service records, lay statements, and VA and private treatment records. The physician's conclusions that there is no medical literature to show that infections have been caused by jet injector devices and that sexual contact with an infected partner is a low risk are consistent with the information in the Director's 2004 letter. The physician indicated that direct contact with blood from another infected person is an important risk factor but regrettably did not discuss the Veteran's experiences. However, the Director noted that contact can occur in combat situations. Recovery of partially decomposed, bloody remains of many crash victims in a hostile jungle environment after cutting open a portion of the aircraft poses a credible risk of infection through blood contaminated cuts or wounds. Resolving all doubt in favor of the Veteran, the Board concludes that service connection for hepatitis C is warranted based on the risk from his combat experiences with wounded and dead soldiers. Service connection is not warranted based on the much lower risk from an infected sexual partner and no demonstrated risk from jet injection devices. The Board accepts the Veteran's denial of any intravenous drug use as credible as it is consistent with the single service treatment record entry in October 1971 and subsequent negative drug test in April 1972. The Board considered whether a remand is necessary to obtain a specific opinion from the 2012 VA physician on the likelihood of infection from the combat experiences. The Board concludes that the physician's opinion addressed all the risk factors in the Veteran's case other than his combat experiences and did not indicate another likely cause. The physician did indicate that contact with infected blood was a risk factor, and the Director acknowledged that contact can occur in combat situations. The Board does not intimate an impermissible medical conclusion. The Board may not base a decision on its own unsubstantiated medical opinion, but rather may reach a medical conclusion only on the basis of independent medical evidence. Colvin v. Derwinski, 1 Vet. App. 171 (1991). The Board acknowledges the medical evidence of the difficulty in determining the exact cause and the comprehensive list of risk factors found in the Veteran's history by medical examiners. The circumstances of assisting wounded and recovery of bloody remains in the field is the Veteran's most significant risk identified in the medical opinions and information. As this is the only credible risk factor of significance in the record, the Board concludes that further medical review is not necessary to decide the claim. As there is evidence both for and against service connection, the Board will apply the "benefit of the doubt" doctrine and grant the claim. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for hepatitis C infection. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs