Citation Nr: 1323691 Decision Date: 07/25/13 Archive Date: 08/06/13 DOCKET NO. 10-30 227 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for hepatitis C (HCV). REPRESENTATION Appellant represented by: Paul M. Goodson, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran served on active duty from November 1971 to April 1973; she also had additional service with the Army National Guard and Air National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. Subsequently, jurisdiction was transferred to the RO in Winston-Salem, North Carolina. The Veteran testified regarding this matter before the undersigned Veterans Law Judge at a videoconference hearing in December 2011. A transcript of the hearing is associated with the claims file. FINDING OF FACT The Veteran's hepatitis C is related to service. CONCLUSION OF LAW Hepatitis C was incurred in active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist 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 & Supp. 2012); 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. II. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Veteran seeks entitlement to service connection for hepatitis C. The Veteran essentially contends that she suffers from hepatitis C as a result of exposure to blood through air gun inoculations in service. Post service records reveal that blood testing was performed in July 1990. This testing revealed a reactive Anti HCV test. In a private treatment note dated in August 2005, the Veteran was noted to report that she had been told in 1999 that she was hepatitis C positive. The diagnoses provided included hepatitis C positive. A private laboratory report, dated in August 2005, indicated that the Veteran had detectable and quantifiable HCV RNA. Another laboratory result indicated that the genotype was 1a. In December 2005 Dr. M.S. reported that the Veteran had hepatitis C. It was noted that her only risk factor for acquiring hepatitis C was receiving mass vaccination after enrolling in the military back in the 1970s. The Veteran was noted to report that she had undergone a liver biopsy and that it demonstrated mild disease; however, the physician indicated that he did not have a copy of the biopsy report or the actual liver biopsy slides to review. In a VA treatment note dated in February 2006 the Veteran was noted to have had a liver biopsy in October 2005. It was reported that her date of probable exposure to hepatitis C was 1970. She was noted to have a history of intranasal drug use in 1979, surgery in 1989, a tattoo in 2004, and mass vaccination in the military in 1970. The Veteran was reported to have had her first abnormal alanine amiontransferase (ALT) in February 2005 and to have had her first positive HCV RNA in August 2005. In August 2009 Dr. M.S. reported that the Veteran was found to be hepatitis C positive in 2005. The physician noted that the Veteran had no history of receiving blood transfusions, utilizing illicit drugs or receiving a tattoo. She was reported to have never had interactions with persons known to have hepatitis C. The physician stated "[i]t is believed that she acquired hepatitis C through mass vaccination shortly after she enrolled in the military." The physician continued to describe the Veteran's treatment and progress. The physician stated: I am writing this letter on behalf of [the Veteran] to stated that I have evaluated and treated her hepatitis C and that I have concluded that the most likely way that she contracted hepatitis C was through the use of air gun mass vaccination after enrolling in the military. VBA Fast Letter 04-13 has been associated with the claims file and in the conclusion states that "[d]espite the lack of any scientific evidence to document transmission of HCV with airgun injectors, it is biologically plausible." The Veteran was afforded a VA medical examination in January 2010. The Veteran was noted to have been diagnosed with hepatitis C in 2005. She was reported to have a history of the chronic liver disease risk factors of tattoo after service and exposure to air gun inoculation in 1970 in military service. A history of hepatitis C was noted. Physical examination was performed. Hepatitis C was reported to be confirmed with appropriate test and liver biopsy showing fibrosis. The Veteran was diagnosed with hepatitis C. The examiner stated that there is no concrete medical evidence that air gun inoculation causes hepatitis C. The examiner further reported that there appear to be individual cases where this possibility has been contended and on at least one occasion ruled in favor of the Veteran. The examiner noted that in this particular case the Veteran's former physician, Dr. M.S. indicates and states that he feels that in view of the lack of other risk factors this is the cause of the Veteran's hepatitis C. The examiner indicated that a memorandum from the Acting Director of Compensation and Pension Service notes that although there is a lack of scientific evidence to document transmission by air gun inoculation it is biologically plausible. The examiner reported that the medical record indicates that the Veteran had intranasal cocaine exposure in 1979 but that she denies this emphatically and has stated that she has never used any type of illicit drugs. The examiner opined that the tattoo that was applied in 2004 is less likely than not a factor in that hepatitis C in such a slow developing process that it more likely than not had been going on for years prior. The examiner concluded that in view of the information and the current medical knowledge regarding this, the examiner cannot say that the air gun inoculation was the source of her hepatitis C but that it could be a possibility. The Veteran has submitted additional evidence in support of her claim, including a January 1998 Memorandum for the Assistant Secretary of Defense (Health Affairs) regarding Recommendation on Jet Injectors and an article entitled Potential for cross-contamination from use of a needless injector. At a hearing before the undersigned Veterans Law Judge in December 2011 the Veteran reported that she was administered inoculations or vaccines when she entered service. She stated that everyone was lined up single file and that they were led into the clinic. They all had their sleeves up and were shot with immunizations from a device that looked like a gun, one after the other. She remembered seeing blood on the arms of the individuals ahead of her and that her arm was bleeding when she exited. She stated that they did not change the heads on the device, wipe the heads on the devices, or otherwise do anything to clean the device between injections. The Veteran reported that she had no history of intravenous drug use, had not had a blood transfusion prior to 1992, had never been treated for hemophilia, had never had an organ transplant, had never had an intimate relationship with someone who was positive for hepatitis, had never worked in the medical profession, did not have any body piercings, and had never undergone acupuncture. She reported that she obtained a tattoo in 2004. At the very least, the Board finds the evidence is in relative equipoise. The Veteran has competently and credibly reported that she underwent air gun inoculation in service, that she observed the individuals before her bleeding, that no efforts were made to clean the device between individuals, and that she was bleeding upon exiting. The Veteran has been diagnosed with hepatitis C. A private physician has rendered the opinion that the Veteran's hepatitis C was most likely contracted through the use of air gun mass vaccination after enrolling in the military. A VBA Fast Letter indicates that the transmission of HCV with air gun injectors is biologically possible. After examination in January 2010 a VA medical examiner found that he could not say that the air gun inoculation was the source of her hepatitis; however, the examiner continued to state that it could be a possibility. In addition, the examiner found that the tattoo applied in 2004 was less likely than not a factor in hepatitis C because it is slow to develop and it more likely than not had been going on for years prior. Thus, the Board finds that it cannot be said that a preponderance of the evidence is against the claim, and as such, resolving all reasonable doubt in favor of the Veteran, the criteria for a grant of service connection have been met. ORDER Service connection for hepatitis C is granted. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs