Citation Nr: 1324111 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 06-30 056 ) 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: Daniel G. Krasnegor, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Kessel, Counsel INTRODUCTION The Veteran had active military service from October 1969 to January 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The case was most recently before the Board in October 2012. At that time, the Board remanded the claim of service connection for hepatitis C for additional development. FINDING OF FACT The Veteran's hepatitis C did not have its onset during his active military service and it was not caused by an event, injury or disease in 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. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) requires VA to notify a claimant of the information and evidence needed to substantiate a claim and what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(b) (2012). The VCAA also defines the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(c). The Board finds that all notification action needed to make a decision as to the claim on appeal has been accomplished. The Veteran was sent standard notice letters in August 2005 and September 2006 whereby he was notified of the information and evidence needed to substantiate his claim of service connection for hepatitis C. The September 2006 letter provided the Veteran with the general criteria for assigning disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The second letter was followed by a readjudication of the claim by the RO most recently in an April 2013 supplemental statement of the case. See Prickett v. Nicholson, 20 Vet. App. 370, 376-77 (2006) (a statement of the case or supplemental statement of the case issued by the RO cures timing defects associated with notice letters). To the extent particularized notice is required for a claim involving hepatitis C in light of the recognized risk factors set forth in an April 17, 2001 VA training letter, the Veteran and his attorney representative have shown actual knowledge of that aspect of the claim given their multiple statements and arguments on the subject. Thus, the duty to notify has been met and no additional notice is necessary. The Board also finds that VA has properly assisted the Veteran in obtaining relevant evidence for the claim, and VA has provided an examination and obtained a medical opinion. VA has a duty to assist the Veteran in the development of a claim. This duty includes assisting the Veteran in the procurement of service and other relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The RO has associated the Veteran service treatment records with the claims file. VA treatment records, including from the VA Medical Center (VAMC) in Gainesville, Florida, and records from the Social Security Administration (SSA) have also been obtained. The Veteran has not identified any outstanding records. VA's duty to assist also includes providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). When provided, an examination must be adequate to decide the claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). VA most recently provided an examination and obtained an opinion in March 2013, which was done pursuant to the Board's October 2012 remand instructions. This report, along with an April 2013 addendum, addressed whether the Veteran's current hepatitis C had its onset during, or was caused by, his active military service. The examination and opinion are adequate as the reports show that the examiner considered the relevant history of the Veteran's hepatitis C, and provided a sufficiently detailed description of the disability and an analysis to support the opinion. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). Thus, the duty to assist has been met and no additional development is necessary. In sum, no further notice or assistance to the Veteran is required for a fair adjudication of his claim. Appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1983). II. Analysis The Veteran contends that service connection is warranted for hepatitis C. The evidence shows that he was initially diagnosed with hepatitis C at the Gainesville VAMC in September 2003. The Veteran believes that the disease is related to either air gun inoculations during service or to incidents where he was exposed to blood in the process of cleaning helicopters during service. Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). To establish a right to compensation for a present disability, a Veteran must show: "(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." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In regards to service connection claims pertaining to hepatitis C in particular, VA issued a training letter, dated April 17, 2001. Among other things, the training letter sets forth a list of recognized risk factors for contracting hepatitis C that should be taken into consideration when developing and adjudicating a claim of service connection for hepatitis C. According to the letter, the medical recognized risk factors are: transfusion of blood or blood products before 1992; organ transplant before 1992; hemodialysis; tattoos; body piercing; intravenous drug use (due to shared instruments); high-risk sexual activity (risk is relatively low); intranasal cocaine use (due to shared instruments); accidental exposure to blood products in health care workers or combat medic or corpsman by percutaneous (through the skin) exposure or on mucous membrane; and other direct percutaneous exposure to blood such as by acupuncture with non-sterile needles or by the sharing of toothbrushes or shaving razors. Veterans Benefits Administration Training Letter 01-02 (Apr. 17, 2001). As to these possible risk factors, the Veteran has denied having a blood transfusion. He did have two septorhinoplasties in November 1977 and February 1979. However, the evidence does not indicate whether the Veteran had a blood transfusion during those surgeries. As to tattoos, the Veteran has generally denied having a tattoo. Nevertheless, his September 1969 entrance examination notes that he had a tattoo on his right arm. At a June 2012 VA examination, the Veteran stated that he put the tattoo on himself when he was 12 years old. The Veteran has consistently denied using intravenous drugs. As to sexual activity, he has reported having multiple sexual partners and being treated for gonorrhea. As to intranasal cocaine use, the Veteran has consistently denied using illegal drugs. However, he has also indicated he has used marijuana regularly. Moreover, it was noted at a June 2010 VA psychiatric examination that the Veteran had used cocaine. Lastly, as noted previously, he reported having exposure to blood while cleaning helicopters during service, which may be akin to "accidental exposure to blood products in health care workers or combat medic or corpsman by percutaneous exposure or on mucous membrane." In view of this evidence, it appears that the Veteran does have risk factors for hepatitis C, but the evidence is somewhat ambiguous and inconsistent as to the exact factors and number of instances of the factors. Along these lines, the June 2012 VA examiner noted that the Veteran's sexual history before, during, and after service is not known, and that the extent of his drug use prior to, during, and after service is not fully known and there is conflicting information as to the nature and extent of the drug use. In September 2012, the Veteran's representative indicated that the Veteran is willing and able to provide whatever detail an examiner would need to more fully understand his history. As noted in the introduction, the Board remanded the claim in October 2012. This was done to obtain a medical opinion based on a complete and accurate history. In March 2013, the Veteran underwent additional examination in connection with the claim by a VA physician. The examiner reviewed the evidence in the claims, interviewed the Veteran, and conducted an in-person examination with laboratory testing. The provided diagnosis was hepatitis C with an onset of 2003 per the record. It was noted that the onset was 1996 or 1997 per the Veteran. The examiner recorded the Veteran's recollection of when he was informed that he had hepatitis C while working as a truck driver and when he began treatment in 2009. The examiner included copies of multiple VA treatment records in the report showing that the Veteran's treatment history was understood. The examiner indicated that the date that the Veteran acquired the virus is unknown as the acute infection is often asymptomatic, or symptoms are mild and laboratory testing is not done. Additionally, the examiner noted that screening for HCV [hepatitis C virus] was not implemented until 1990. Concerning the Veteran's potential risk factors, the examiner stated that, as to air gun inoculations, the medical literature states that transmission of hepatitis C by air gun injectors is a theoretical possibility; however, there is no objective evidence that use of air gun injectors for immunizations does or has transmitted hepatitis C. For exposure to blood in the process of cleaning helicopters, the examiner has no personal knowledge of the process of cleaning helicopters. After describing how infected blood might be transmitted and the survival rate of hepatitis C on surfaces, the examiner indicated that there would seem to be a theoretical possibility of infection; however, the examiner is unable to find objective evidence that cleaning helicopters has caused transmission of hepatitis C. As to tattoos, the examiner indicated that the circumstances of the tattoo that the Veteran had at entrance to military service are not objectively known. For the risk factor of blood transfusion, the examiner noted that the Veteran has consistently denied transfusion and that there is no objective evidence of a transfusion. As to high-risk sexual activity, the examiner noted that the Veteran denied being "promiscuous." According to the examiner, the only way that risk from sexual activity is zero is if both partners of a sexual relationship have only had relations with the other partner and never with anyone else. For intranasal cocaine use, the Veteran admitted to use of such prior to military service. The examiner noted that this is a risk for hepatitis C even if only used once. The examiner then provided an opinion that it would be speculative to rank the probability that the Veteran's hepatitis C infection is/was etiologically related to each of his risk factors or to state that the hepatitis C is related to the Veteran's period of active military service. The examiner concluded the report with statistics from the Center for Disease Control. The sources of infection for persons with hepatitis C: injecting drug use-60 percent; sexual-15 percent; transfusion before testing-10 percent; other (nosocomial, health care worker, perinatal)-5 percent; and unknown-10 percent. In an April 2013 addendum, the examiner further explained that, unfortunately, the hepatitis C virus does not have any kind of marker that can be tested in the laboratory that would reveal its source. According to the examiner, hepatitis C obtained through a tattoo is the same as hepatitis C obtained through intravenous drug use. The examiner noted that there is no way to differentiate by a medical test or procedure how or from what source the virus entered the blood stream. The examiner also noted that, while repeated exposure increases the risk of contracting hepatitis C, it only takes one exposure and there is no current medical mechanism to determine which exposure was the source. In consideration of the evidence of record, the Board finds that the Veteran's hepatitis C did not have its onset during his active military service and it was not caused by an event, injury or disease in service. The evidence shows that the Veteran's hepatitis C was initially diagnosed in September 2003, which was over 30 years after his separation from service. Although the March 2013 VA examiner noted that testing for hepatitis C was not implemented until 1990, the evidence does not indicate the Veteran's hepatitis C had an earlier date of onset than 2003 and, in particular, not as early as the Veteran's time period of service. A factor weighing against an earlier date of onset is the absence of abnormal liver findings or complaints of liver problems in the service treatment records, as well as VA treatment records and examination reports dated in the 1970s and 1980s, despite treatment for, and complaints of, multiple other problems. As to the Veteran's theory that his hepatitis C is the result of risk factors that occurred during service, this aspect of the claim is complex in nature and necessitates a certain amount of medical expertise to provide an opinion that has more than little probative value. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) ("Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer."). As noted previously, the March 2013 VA examiner provided an opinion that it would be speculative to rank the probability that the Veteran's hepatitis C infection is/was etiologically related to each of his risk factors or to state that the hepatitis C is related to the Veteran's period of active military service. The Board finds this opinion persuasive as it is based on a complete history and includes a comprehensive explanation with extensive logical reasoning so as to allow the Board to make a decision on the claim. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("It is the factually accurate, fully articulated, sound reasoning for the conclusion . . . that contributes probative value to a medical opinion."). As to the Veteran's primary theories of infection from air gun inoculations and exposure to blood in the process of cleaning helicopters, the March 2013 VA examiner indicated that these were only theoretical possibilities and that there is no objective evidence that these incidents would cause the transmission of hepatitis C. In regards to any risk factor in particular, the VA examiner explained that there is essentially no medical way to identify the source of an infection. Thus, while the examiner concluded that speculation would be required to attribute the Veteran's hepatitis C to service or a specific risk factor, the examiner provided a rationale as to why a definitive opinion could not be provided. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010) ("[B]efore the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence."). As required in Jones, the VA examiner clearly identified precisely what facts cannot be determined and it was clear in the examiner's remarks that the actual cause cannot be selected from multiple potential causes. See id. In May 2013, the Veteran's representative argued that the claim should be granted based on the application of the benefit-of-the-doubt rule because it is not possible to tell whether an in-service risk factor is or is not the cause. The statute provides that the when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) (West 2002). The regulation provides that when, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102 (2012). By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. It is not a means of reconciling actual conflict or a contradiction in the evidence. Mere suspicion or doubt as to the truth of any statements submitted, as distinguished from impeachment or contradiction by evidence or known facts, is not justifiable basis for denying the application of the reasonable doubt doctrine if the entire, complete record otherwise warrants invoking this doctrine. Id. Here, the benefit-of-the-doubt rule is not for application because there is not an approximate balance of positive and negative evidence. The positive evidence tending to link the Veteran's hepatitis C to service is at most theoretical and speculative. Thus, the evidence is best characterized as pure speculation or remote possibility rather than within the range of possibility. The medical expert opinion evidence in concert with the evidence showing onset of hepatitis C over 30 years after the Veteran's service constitutes a preponderance of negative evidence. For these reasons, the Board finds that the evidence against the claim outweighs the evidence supporting the claim. There is no reasonable doubt to be resolved in this case. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Consequently, entitlement to service connection for hepatitis C is denied. ORDER Service connection for hepatitis C is denied. ____________________________________________ JOAQUIN AGUAYO-PERELES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs