Citation Nr: 1309673 Decision Date: 03/21/13 Archive Date: 04/01/13 DOCKET NO. 10-19 506 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The Veteran served on active duty from July 1969 to July 1973. This matter comes before the Board of Veterans' Appeals (Board) from an August 2008 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Veteran's claim was remanded by the Board in January 2013 for additional development, to include obtaining private treatment records and affording the Veteran an examination in order to obtain a medical opinion. The Board finds that the orders directed in its January 2013 remand have been substantially complied with. Therefore, adjudication is appropriate. A review of the Veteran's virtual VA folder reveals that all documents in that folder have already been considered by the RO in adjudicating the Veteran's claim. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's currently diagnosed hepatitis C is related to active military service. CONCLUSION OF LAW Hepatitis C was not incurred or aggravated during active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs 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, 3.326(a) (2012). In February 2008, the RO sent a letter to the Veteran which advised him of the VCAA, including the types of evidence and/or information necessary to substantiate his claim and the relative duties upon himself and VA in developing his claim. Quartuccio v. Principi, 16 Vet. App. 183 (2002). As to the duty to assist, VA has associated with the claims folder the Veteran's service treatment records and the Veteran has been provided VA medical examinations. At his March 2012 hearing the Veteran reported private treatment for hepatitis C. In February 2008 and January 2013 letters, the RO requested that the Veteran provide information and authorization so that VA could obtain the Veteran's private treatment records. No response was received from the Veteran. The requests were not returned by the U.S. Postal Service as undeliverable. The Board notes that corresponding to VA's duty to assist the Veteran in obtaining information is a duty on the part of the Veteran to cooperate with VA in developing a claim. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting that "[t]he duty to assist is not always a one-way street"). VA's duty must be understood as a duty to assist the appellant in developing his claim, rather than a duty on the part of VA to develop the entire claim with the appellant performing a passive role. See Turk v. Peake, 21 Vet. App. 565, 568 (2008). Without the Veteran's cooperation on this matter, VA is unable to request the Veteran's private medical records and must adjudicate the Veteran's claim based on the evidence currently of record. In sum, the Board is satisfied that the originating agency properly processed the Veteran's claim after providing the required notice and that any procedural errors in the development and consideration of the claim by the originating agency were insignificant and non-prejudicial to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. History Service treatment records, including the July 1973 discharge examination report, provide no indication that the Veteran was diagnosed with or treated for hepatitis during service. On VA examination in June 1974, the Veteran was found to have a fatty liver secondary to alcoholism. In a February 2008 letter, the Veteran reported that he was first diagnosed with hepatitis C virus (HCV) in 1989. At that time he had been a firefighter for thirteen years and he believed that his exposure must have been due to the many accidents and medical calls during his work. But now he thought otherwise. He reported that while in service he had received immunizations by air jet guns. He noted that studies had shown that contaminated blood products were passed by air jet guns, which was why the military no longer used them for immunizations. He asserted that this supports his claim for service connection for hepatitis C. On examination by a VA nurse practitioner (NP) in December 2009, the Veteran denied any tattoos or piercings. He denied any IV drug use or snorting drugs. His only surgery, a bone spur removal, was done in 2000. He reported that although he had been exposed to blood at times during his professional career as a firefighter, he did not recall any time where he was openly bleeding and was exposed to blood at the same time. The Veteran reported getting numerous injections and vaccinations throughout his service career with air guns. The examiner stated that although the possibility of contracting hepatitis C through air gun vaccinations is low, with the Veteran having no other risk factors, it is at least as likely as not that the Veteran's hepatitis C is due to service duty air gun injections. In March 2010, the VA examiner provided an addendum to his December 2009 examination report. He stated that the Veteran was a firefighter, an occupation with some risk for hepatitis C, and he had a history of alcoholism and air gun injections which may pose some risks. The VA examiner stated that he could not opine on the exact mode of HCV transmission without resorting to mere speculation. In December 2010, a VA examiner stated that the Veteran had no residuals of a fatty liver and stated that a fatty liver is generally not associated with hepatitis C. She further stated that the Veteran quit alcohol many years ago. At his March 2012 hearing, the Veteran denied risk factors such as unprotected sex with multiple partners, intravenous drug use, or cocaine use. He also denied accidental needle sticks or any other possible exposure while working as a firefighter. The Veteran's representative reported that the Veteran's private doctor stated that absent any other risk factors, that it was as likely as not that the air gun injections could be the cause of his contraction of hepatitis C. The Veteran was provided an examination by a VA physician in January 2013. The Veteran denied blood transfusions, denied IV drug use, denied multiple unprotected sexual partners, and denied left arm tattoo. He noted exposure to blood/bodily fluids in his occupation as a firefighter. The Veteran had a documented history of significant alcohol consumption in the past. The Veteran stated that he initially thought that he was exposed to hepatitis C at his work in the fire department. Subsequently he believed that he was infected at induction into the Marine Corps due to air gun inoculations. The Veteran reported that his two brothers were also in the Marine Corps and also have hepatitis C, which the Veteran attributed to the same inoculations. The VA physician opined that it is less likely as not that the Veteran's HCV is related to any identified risk factor in service, to include injections from air guns. He noted that although it is possible in theory, there is not enough evidence to confirm that air gun injection resulted in the Veteran's HCV infection. He pointed out that the record contains comments about occupational exposure to blood during work as a firefighter. Blood or bodily fluid exposure "due to the many accidents and medical calls during my hours at work" was noted by the Veteran himself in the medical record, and upon examination that day. The VA physician noted that studies of HCV infection rates among firefighters, are suggestive of a higher occupational risk factor for such infection. He further noted that alcoholism itself is associated with a much higher risk of HCV infection. The VA examiner noted that medical documentation from the Veteran's treating hepatologist (private medical treatment) may contain a review of the possible etiology of the hepatitis C, but that such records were not available. III. Analysis The Veteran contends that service connection for hepatitis C is warranted. He asserts that his current diagnosis is related to in-service air gun injections. In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection or service-connected aggravation for a present disability, the 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). With specific regard to hepatitis, VA has addressed the relationship between immunizations with jet injectors and hepatitis C as it relates to service connection. See VA Fast Letter 04-13 (June 29, 2004). Key points include 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 the blood supply began in 1992, and hemophiliacs treated with clotting factor before 1987). Hepatitis can potentially be transmitted with the reuse of needles for tattoos, body piercing, and acupuncture. While there is at least one case report of hepatitis B being transmitted by an air gun injector, thus far there had been no case reports of HCV being transmitted by an air gun transmission. The letter concluded 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. Despite the lack of any scientific evidence to document transmission of the hepatitis C virus by air gun injectors, it is biologically plausible. At the outset, the Board notes that the service treatment records do not indicate whether the Veteran had in-service immunizations delivered via air gun injections. Resolving reasonable doubt in his favor, the Board will accept his statements in this regard. The Veteran clearly has a diagnosis of hepatitis C. The key question is whether it is related to active military service, to include the reported air gun injections. Although the Veteran's representative indicated that a private physician opined that the Veteran's hepatitis C is related to service, from his description of the opinion it appears that the representative was actually referring to the December 2009 VA opinion. The phrasing used is the same as that used by the December 2009 VA examiner. Furthermore, the representative indicated that the opinion was in the Veteran's claims file. The December 2009 VA opinion is in the claims file, and there are no private medical records in the claims file, as the Veteran has not authorized VA to obtain such records. Although the December 2009 VA opinion is favorable to the Veteran, the Board finds that it is of little probative value. The December 2009 VA examiner reviewed the record in March 2010, and then changed his opinion. In the March 2010 addendum, he stated that he was unable to provide an opinion regarding the etiology of the Veteran's HCV without resorting to speculation. He did not include a statement of the reasons why such an opinion would be speculative. Because the VA examiner changed his opinion after a more thorough review of the evidence, but still failed to offer a reason why in his second opinion, neither opinion is considered to be probative. In this case the most probative evidence of record is the January 2013 opinion of the VA physician that it is less likely as not that the Veteran's HCV is related to any identified risk factor in service, to include injections from air guns. The VA physician reviewed the pertinent evidence, to include all of the Veteran's risk factors, and based on that review he provided a rationale for his opinion. He noted that that studies of HCV infection rates among firefighters, are suggestive of a higher occupational risk factor for such infection, and noted that the Veteran reported exposure to blood while working as a firefighter. The VA physician opined that it is less likely as not that the Veteran's HCV is related to any identified risk factor in service, to include injections from air guns. The Board finds that the weight of the evidence demonstrates that the Veteran's current hepatitis C is not related to service. While the Veteran is competent to report that he was given an inoculation by an air gun injector, the weight of the evidence is against any relationship between his hepatitis C and service, to include the air gun injection inoculations. In this case, the Veteran's post service occupation provided a potential source of infection in addition. The Board finds that the Veteran is not competent to identify the source of his hepatitis C. The etiology of hepatitis C is not capable of lay observation, but requires medical knowledge. Hepatitis C is diagnosed based on specific laboratory testing (blood testing that looks for antibodies against the hepatitis C virus or genetic material or genotype testing) rather than symptoms observable by a lay person, although certain symptoms may prompt such testing. As noted above, the most probative medical evidence of record is the January 2013 opinion that the Veteran's current hepatitis C is unrelated to service. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim; therefore, the benefit of the doubt provision does not apply. The appeal is denied. ORDER Entitlement to service connection for hepatitis C is denied. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs