Citation Nr: 1324991	
Decision Date: 08/06/13    Archive Date: 08/13/13

DOCKET NO.  03-35 894	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUE

Entitlement to service connection for hepatitis B. 


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Paul S. Rubin, Counsel



INTRODUCTION

The Veteran had active duty service from April 1966 to April 1969.  He was awarded a Purple Heart Medal due to a combat injury sustained in the Republic of Vietnam during the Vietnam War.  This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2003 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California.  

A review of the Virtual VA paperless claims processing system reveals additional VA treatment records, not reviewed by the RO.  Regardless, none of these records are pertinent to the present hepatitis B appeal.  Accordingly, remand is not required.

The Board remanded this case in September 2012 and May 2013 for further development.  After completion of this development by the RO, the case has been returned to the Board for further appellate consideration.


FINDING OF FACT

The Veteran has a current hepatitis B disability that that is related to the risk factor of contaminated blood exposure during combat service in Vietnam.  


CONCLUSION OF LAW

Hepatitis B was incurred in active service during combat.  38 U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012).  



REASONS AND BASES FOR FINDING AND CONCLUSION

Review of the claims folder shows compliance with the Veterans Claims Assistance Act (VCAA), 38 U.S.C.A. § 5100 et seq. See also 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  The duty to notify was accomplished by way of VCAA letters from the RO to the Veteran dated in October 2002, November 2002, January 2005, and February 2013.  Regardless, with regard to the hepatitis B issue being granted, there is no need to discuss in detail whether there has been compliance with the notice and duty to assist provisions of the VCAA because, in light of the allowance of this claim, any error is inconsequential and, therefore, at most harmless error.  See 38 C.F.R. § 20.1102; Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). 

Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  In order to establish service connection, the following must be shown:  (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).  Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  

Where there is a chronic disease shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim.  38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1337-38 (Fed. Cir. 2013) (noting that the continuity of symptomatology provisions apply only to listed chronic conditions).  Hepatitis B is not an enumerated "chronic disease."  See 38 U.S.C.A. §§ 1101; 38 C.F.R. § 3.309(a); Walker, 708 F.3d at 1336-37.  Thus, in the present case, an analysis under 38 C.F.R. § 3.303(b) for an enumerated "chronic disease" is not warranted.  The Veteran also may not establish continuity of symptomatology for hepatitis B in lieu of nexus evidence, as this avenue to service connection is only available for enumerated "chronic diseases."  Walker, 708 F.3d at 1336-37.  

A layperson is competent to identify such disorders as varicose veins, tinnitus, and flat feet.  Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); Charles v. Principi, 16 Vet. App. 370, 374 (2002); Falzone v. Brown, 8 Vet. App. 398, 405 (1995).  A layperson is not competent to identify medical conditions that require scientific, technical, or other specialized knowledge, such as in identifying bronchial asthma.  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  Lay testimony, however, is competent to establish a diagnosis where the layperson is competent to identify the medical condition, is reporting a contemporaneous medical diagnosis, or describes symptoms that support a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).

If an injury or disease was alleged to have been incurred or aggravated in combat, such incurrence or aggravation may be shown by satisfactory lay evidence, if consistent with the circumstances, conditions, or hardships of service, even if there is no official record of the incident.  38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d).  This provision does not establish a presumption of service connection; rather it eases the combat veteran's burden of demonstrating the occurrence of some in-service incident to which the current disability may be connected.  See Caluza v. Brown, 7 Vet. App. 498 (1995).  The statute provides a basis for determining whether a particular injury was incurred in service, but not a basis to link the injury etiologically to the current condition.  Dalton v. Nicholson, 21 Vet. App. 23, 36-37 (2007); Cohen v. Brown, 10 Vet. App. 128, 138 (1997); Libertine v. Brown, 9 Vet. App. 521, 523-24 (1996).  

In-service incurrence by way of the combat presumption may also be rebutted by clear and convincing evidence to the contrary.  38 U.S.C.A. § 1154(b).  If the lay or other evidence of service incurrence is satisfactory and consistent with the veteran's combat service, the veteran prevails unless this evidence is rebutted by clear and convincing evidence that the disease or injury was not incurred or aggravated in service or during an applicable presumptive period.  See 38 U.S.C.A. § 1154(b); Caluza v. Brown, 7 Vet. App. 498 (1995); Arms v. West, 12 Vet. App. 188 (1999); Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996).

The Veteran contends that he contracted hepatitis B in service during combat by way of exposure to contaminated blood and fluids from fellow Marines who were killed or injured in combat.  He asserts that he assisted with the medical evacuation of Marines on several occasions, exposing himself to blood and bodily fluids.  He also maintains that he was given gammaglobulin shots as hepatitis was widespread in his battalion.  He submitted a 2002 Internet article indicating that gammaglobulin can be given to people to make them temporarily immune to diseases such as hepatitis.  He also describes that hygiene was generally terrible while serving as a Marine during combat operations in Vietnam.  The Veteran has not reported other risk factors, such as blood transfusions or organ transplants, hemodialysis, tattoos, body piercing, intravenous or intranasal drug use, high-risk sexual activity, exposure to contaminated blood products as a health care worker, or other direct percutaneous exposure to blood such as acupuncture with non-sterile needles and sharing of toothbrushes or shaving razors.  He reports that he did not have in-service or post-service symptoms of hepatitis B.  See January 2003, February 2003, and November 2003 statements; May 2005 PTSD stressor statement.  

Upon review of the evidence of record, the Board grants the appeal for service connection for hepatitis B.  The first and most fundamental requirement for any service-connection claim is the existence of a current disability.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  Here, a February 2001 report from UCLA Medical Center noted that the Veteran had a positive blood test for hepatitis B viral core antibody (HBcAb).  A December 2012 VA examiner also confirmed by way of blood tests that the Veteran had a positive surface Ab hepatitis B test and a positive core Ab hepatitis B test.  The VA examiner assessed that these tests indicate that sometime prior to 2001 the Veteran was exposed to hepatitis B.  He is positive for the hepatitis B antibody, and thus technically has a current condition.  

The second requirement for service connection is in-service incurrence of a disease or injury.  Shedden, 381 F.3d at 1167.  The Veteran's service treatment records (STRs) are silent regarding evidence of symptoms, complaints, treatment, or a diagnosis of hepatitis C.  STRs are also silent for the following risk factors:  blood transfusions, organ transplants, hemodialysis, tattoos, body piercing, intravenous or intranasal drug use, high-risk sexual activity, exposure to contaminated blood products as a health care worker, or other direct percutaneous exposure to blood such as acupuncture with non-sterile needles and sharing of toothbrushes or shaving razors.  The Veteran reported he did not have symptoms of hepatitis B or any of the above risk factors during service.  STRs confirm that he received numerous immunizations during active service, including injections of 5cc of gammaglobulin in September 1966, October 1966, and August 1967.

However, the Veteran does consistently report one particular risk factor for hepatitis B - exposure to contaminated bloods and fluids from fellow Marines who were killed or injured in combat, during his combat service.  Service personnel records (SPR) reveal that he was awarded the Purple Heart Medal, thus confirming his exposure to combat.  SPRs also confirm that the Veteran participated in combat campaigns and operations against the enemy in Vietnam in 1966 and 1967.  Therefore, there is sufficient evidence the Veteran engaged in combat during his military service.  See VAOPGCPREC 12-99 (October 18, 1999); Moran v. Peake, 525 F.3d 1157, 1159 (Fed. Cir. 2008).  The Board also finds that the Veteran's account of exposure to contaminated bloods and fluids during combat from fellow Marines who were killed or injured to be consistent with his combat service.  In conclusion, there is competent, credible, and thus satisfactory evidence of blood exposure as a risk factor for hepatitis B.  

Although the combat presumption is in effect, the third element for service connection requires evidence etiologically linking his confirmed in-service risk factor to his current positive hepatitis B antibody test.  Shedden, 381 F.3d at 1167.  The probative lay and circumstantial medical evidence indicate a link between the Veteran's in-service risk factor of contaminated blood exposure to his current positive hepatitis B antibody test.  Specifically, the Veteran is competent and credible in his lay assertions that his only risk factor for hepatitis B is his in-service contaminated blood exposure.   See Barr v. Nicholson, 21 Vet. App. 303, 307-09 (2007).  A private physician in February 2001 at the UCLA Medical Center commented that the most common cause of the Veteran's positive antibody test would be past infection with the hepatitis B virus.  The private physician added that this infection may have occurred without the Veteran experiencing any symptoms of hepatitis B.  Importantly, the medical and lay evidence of record does not establish any other in-service or post-service risk factors for hepatitis B.  

The Board acknowledges that a December 2012 VA examiner opined that the Veteran's hepatitis B was not incurred in or caused by service because there were no other risk factors other than serving in an endemic region.  The VA examiner noted there was no material information in the claims folder on when and how the Veteran was exposed to hepatitis B prior to 2001.  This opinion was flawed because the VA examiner neglected to address the risk factors alleged by the Veteran.  As such, the Board remanded in May 2013 for a VA addendum opinion from the same VA examiner, with consideration of possible in-service risk factors, including the Veteran's exposure to blood and other bodily fluids during combat. 

In a May 2013 VA addendum medical opinion, the same VA examiner stated that it was mere speculation to predict when the Veteran was infected with hepatitis B without an accurate history from the Veteran.  The VA examiner stated that the Veteran did not describe any specific personal risk factor for hepatitis B, although the examiner confirmed that "[i]t is certainly true in any combat operations that exposure to bodily fluids can occur."  The examiner failed to adequately discuss the Veteran's credible lay assertions of exposure to contaminated bloods and fluids from fellow Marines as a means of exposure to hepatitis B.  Medical opinions are of questionable probative value when the examiner fails to consider certain relevant information.  Mariano v. Principi, 17, Vet. App. 305, 312 (2003).  Moreover, where a veteran has provided lay testimony of an in-service injury, unless the Board finds that the testimony is not credible, an examiner may not ignore that lay evidence and base an opinion that there is no relationship to service on the absence of in-service corroborating medical records.  Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007).

The Board can rely on an examiner's conclusion that an etiology opinion would be speculative, as long as the examiner explains the basis for such an opinion.  Jones v. Shinseki, 23 Vet. App. 382, 390 (2010).  An equivocal medical opinion may still be competent, and cannot be considered "non-evidence."  Hogan v. Peake, 544 F.3d 1295 (Fed. Cir. 2008).  But an etiological opinion should be viewed in its full context and not characterized solely by the medical professional's choice of words. See Perman v. Brown, 5 Vet. App. 237, 241 (1993); Lee v. Brown, 10 Vet. App. 336, 338 (1997).  An absolutely accurate determination of etiology is not a condition precedent to granting service connection; nor is definite etiology or obvious etiology.  See Alemany v. Brown, 9 Vet. App. 518, 519 (1996).  In summary, the VA examiner did not conclusively rule out that the Veteran was not exposed to contaminated blood or body fluids during combat operations, weighs in support of the claim.  Most importantly, there is no probative evidence of record establishing any other risk factor for hepatitis B for this particular Veteran.  This fact provides circumstantial evidence of a nexus in the present case, as there is no other proffered explanation for the Veteran's previous hepatitis B infection.  Accordingly, resolving doubt in the Veteran's favor, the evidence supports service connection for hepatitis B.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.


ORDER

Resolving all reasonable doubt in favor of the Veteran, service connection for hepatitis B is granted, subject to the laws and regulations governing the payment of monetary benefits. 




____________________________________________
K. MILLIKAN
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs