Citation Nr: 1323333 Decision Date: 07/22/13 Archive Date: 08/01/13 DOCKET NO. 09-40 294 ) 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: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran (appellant) served on active duty from August 1979 to August 1982. This case comes to the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In October 2012, the Veteran provided testimony at a hearing at the RO before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In March 2013, the Board remanded this claim for additional development. The Board is satisfied that there has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). In this regard, the Veteran was examined and an adequate nexus opinion was provided. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. FINDING OF FACT Hepatitis C was not present in service and is not etiologically related to service. CONCLUSION OF LAW Hepatitis C was not incurred in or aggravated by active service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Here, the Veteran was provided adequate VCAA notice in an April 2008 letter, prior to the September 2008 rating decision on appeal. The record also reflects that service treatment records (STRs) and all available post-service medical evidence identified by the Veteran have been obtained. Neither the Veteran nor his representative has identified any outstanding, existing evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. The Veteran has been afforded appropriate VA examinations, most recently in April 2013. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here, the examinations and opinions are adequate to make a determination in this claim. Accordingly, the Board will address the merits of the Veteran's claim. Legal Criteria Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active service, but no compensation will be paid if the disability is the result of the Veteran's abuse of drugs. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is a proximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Evidence STRs document no diagnosis or complaint related to hepatitis or any other liver disorder. The Veteran had no tattoos on enlistment or on separation, as shown in the respective reports of medical examination. There is no report of any surgeries or blood transfusions during service. The service records show no substance abuse or treatment for sexually transmitted disease. The report of the separation examination dated in June 1982 reflects normal clinical evaluation, does not document any tattoos, and the Veteran reported that he was in fair health. VA treatment records reveal a diagnosis of hepatitis C beginning in January 2008. Subsequent VA records show treatment for cocaine abuse beginning in 2008. In January 2008, the Veteran reported a history of cocaine use at age 25. He also reported in January 2008 that he had a history of multiple sex partners and tattoos. In February 2008, the Veteran gave a history of hepatitis C since 1999. The Veteran was examined by VA in December 2009. The claims file was reviewed. It was noted that his hepatitis C began in the late 1990's. The Veteran reported that many years prior he had blood drawn for insurance purposes and was told he had hepatitis C. He stated that he got his tattoos after leaving service and snorted cocaine after leaving the military. He noted that he shared razors on occasion in the field in the military. He reported no current treatment. Hepatitis C was diagnosed. The examiner reported that tattoos were obtained after military discharge and intranasal cocaine use was after military and that these were equal risk factors. The examiner opined that that hepatitis C was less likely as not caused by sharing of razors while it the military. The examiner stated that sharing razors, intranasal cocaine use and tattoos are all known risk factors for developing Hepatitis C, and that the Veteran shared razors in service. It was noted that he left service with no evidence of hepatitis C. It was indicated that after leaving the military he engaged in activities known to be associated with increased risk of contracting hepatitis C-tattoos and intranasal cocaine use. It was indicated that he was diagnosed with hepatitis C 17 years after leaving the military during which time he engaged in risky behaviors. The examiner stated that the Veteran had multiple tattoos and admits to many years of drug abuse thereby increasing the likelihood of transmission via these exposures rather than sharing razors on occasion while in the military. During his hearing before the undersigned in October 2012, the Veteran testified that he received immunizations during service from an inoculation gun and that he and others bled from that. He reported that he got his tattoos while in Germany in the service. He stated that he did not engage in any high risk sexual activity in the service and received no blood transfusions during his military service. He also testified that he shared razors with other soldiers when in the field. He indicated that after service he did not engage in any type of high risk sexual activity or any drug use. He stated he was diagnosed with hepatitis C in 1999. In a November 2012 statement, the Veteran's private physician stated that the Veteran gave a history of receiving immunizations thru the same needle as all in line for induction, receiving tattoos in the military in Germany and sharing razors in the field. The physician opined that the Veteran's hepatitis C was caused by or the result of the Veteran's military service. The rationale was, "far and away cause is air gun vaccination". Another private physician stated in a November 2012 letter that he had reviewed the Veteran's service treatment records and that the Veteran had hepatitis C. The physician reported that the Veteran contended that the usage of the vaccination gun to which the same needle was used on all entering Vets put him at a high risk of developing hepatitis C and that also the sharing of razors and tattooing received in service in Germany. The physician indicated that the disorder was most likely caused by or the result of service. The rationale was, "probably related to air gun vaccinations". The Veteran was examined by VA in April 2013. The claims file was reviewed. His history was noted. Hepatitis C was noted to be the diagnosis. The Veteran reported that he believed he was infected with hepatitis C when he and fellow soldiers were vaccinated with the air guns; he stated he bled and so did another soldier that had his injection before him. In addition, he stated he shared rusty razors while in the field during training in Germany, and got tattoos while in service in Nuremburg Germany. He stated he received two tattoos on the right arm and one tattoo on the left arm. It was noted that the Veteran has encelopathy(confusion) and was there with his power of attorney but that the Veteran was able to answer the examiner's questions. The Veteran stated at his last VA exam in 2009 he did not have his hearing aide, he was on multiple medications for depression and stated he not understand the questions and gave inaccurate answers. It was noted that the Veteran stated at his current examination that he got the tattoos during the service, he did cocaine after the service after he was diagnosed with hepatitis C and that he did not state he had the vaccination by air gun. The Veteran stated he was discharged in 1982 and was denied by an insurance physical company in approx 1998 as he had hepatitis c. The examiner reported 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. It is the examiner's opinion that the Veteran's hepatitis C is less likely as not (less than 50/50 probability) cause by, or a result of, or aggravated by the Veteran's alleged in-service risk factors including tattoos, razor sharing, and vaccinations given by air gun. It was noted that the Veteran's entrance exam and separation exam are silent for tattoo skin conditions and that the Veteran's STRs are silent for tattoo condition, razor sharing, vaccinations given by air gun and liver condition. The examiner noted that per the Veteran's history he stated he shared razors in the field training while stationed in Germany and got his 3 tattoos while stationed in Germany. The examiner noted that the Veteran immunization record includes; 8/21/79 smallpox 8/21/79 and 10/19/79 typhoid 8/17/79 and 19/19/79 tetanus/diphtheria. The examiner reported that the current exam revealed 3 tattoos; right upper arm barbed wire/star with army insignia left upper arm eagle with Harley Davidson insignia. It was stated that these tattoos were not noted on the Veteran's separation physical examination. It was noted that the Veteran submitted 2 physician's nexus statements. It was stated that according to a widely-utilized, literature-based medical reference source, the causes of hepatitis C is primarily transfusion of blood products before 1992 and injection drug use. It is also noted there is a lack of scientific evidence to document transmission of hepatitis C with air gun injectors. The examiner reported that according to a widely-utilized, literature-based medical reference source, HCV is transmitted primarily through large or repeated direct percutaneous exposures to blood and that most risk factors associated with transmission of HCV in the United States were identified in case-control studies conducted during 1978-1986. It was pointed out that these risk factors included blood transfusion, injecting-drug use, employment in patient care or clinical laboratory work, exposure to a sex partner or household member who has had a history of hepatitis, exposure to multiple sex partners, and low socioeconomic level. The examiner stated that these studies reported no association with military service or exposures resulting from medical, surgical, or dental procedures, tattooing, acupuncture, ear piercing, or foreign travel and that if transmission from such exposures does occur, the frequency might be too low to detect. Analysis Having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against service connection for hepatitis C. Hepatitis C is not shown in service or for more than 17 years after service discharge. With respect to whether the hepatitis is related to the Veteran's active service, the Board notes the following guidance. Risk factors for hepatitis C include intravenous (IV) 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 211B (98-110) November 30, 1998. A VA Fast Letter (FL) issued in June 2004 (FL 04-13, June 29, 2004) identified "key points" that included the fact that 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., intravenous drug users, recipients of blood transfusions before screening of the blood supply began in 1992, and hemophiliacs treated with clotting factor before 1987). Another "key point" was the fact that hepatitis C can potentially be transmitted with the reuse of needles for tattoos, body piercing, and acupuncture. It was concluded in FL 04-13 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. In this case, the Board finds that the VA medical opinions against the claim to be more probative than the private medical opinions supporting the claim. The Board assigns lesser probative value to the private opinions because the opinions are not supported by persuasive rationale and are not based upon an accurate history. In particular, the Board notes that the private opinions include no mention of the Veteran's history of drug abuse and assume that the Veteran's statements concerning his in-service risk factors are accurate. In contrast, the VA examiners addressed the complete medical history, are consistent with the actual factual background in this case, and are well supported. The Veteran asserts he acquired hepatitis C infection in service from shared razors, air gun vaccinations and tattoos. The Board accepts that the Veteran is competent to report symptoms, treatment and injuries. Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995). However, the Veteran lacks the required expertise to determine the etiology of his hepatitis C. Additionally, the Board finds that the Veteran is not credible because he is an inconsistent historian. The Veteran has given an inconsistent history of drug use, and of when he received his tattoos. The histories provided at the Board hearing and at the most recent VA examination conflict with histories provided on other occasions and appear to have been provided for monetary gain. Moreover, the service treatment records do not show that the Veteran had any tattoos. Accordingly, the Board must conclude that service connection is not warranted for hepatitis C. In reaching this decision, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. ORDER Service connection for hepatitis C is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs