Citation Nr: 1316957 Decision Date: 05/23/13 Archive Date: 05/31/13 DOCKET NO. 07-35 451 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for hepatitis C. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran served on active duty from November 1977 to March 1988; however, the Veteran's period of service from March 26, 1985 to March 4, 1988 was dishonorable for VA purposes and is a bar to the receipt of VA benefits during that period. Therefore, the relevant period of active duty for consideration in this case is from March 1977 to March 25, 1985. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida which, in pertinent part, denied service connection for hepatitis C and an acquired psychiatric disorder. The Veteran testified at July 2009 Travel Board hearing. The hearing transcript has been associated with the claims file. In a December 2011 decision, the Board denied service connection for hepatitis C and an acquired psychiatric disorder, to include as secondary to hepatitis C. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court or CAVC) insomuch as it denied service connection for hepatitis C. The Veteran did not challenge the Board's denial of service connection for an acquired psychiatric disorder. In September 2012, the Court granted a Joint Motion for Partial Remand, and the part of the Board's decision, only to the extent that it denied service connection for hepatitis C, was remanded for action consistent with the terms of the Joint Motion. The appeal as to the remaining issue was dismissed. The case is once again before the Board. FINDINGS OF FACT 1. The Veteran identified hepatitis C risk factors in service, to include air gun inoculations, dental work in service, alcohol abuse, and exposure via unprotected sex. 2. Liver function testing in service showed an elevated alanine aminotransferase (ALT) of 55 in service. 3. Hepatitis C is etiologically related service. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for hepatitis C have been met. 38 U.S.C.A. §§ 1112, 1113, 1131, 5107(b) (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303 (2012) REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). In the present case, the Board is granting the claim for service connection. Because this decision constitutes a full grant of the benefits sought on appeal, no further discussion regarding VCAA notice or assistance duties is required. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Hepatitis C is not a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply in this case. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). An injury or disease incurred during active service shall not be deemed to have been incurred in line of duty if such injury or disease was a result of the person's own willful misconduct, and this includes an HVC infection due to abuse of alcohol or drugs. See 38 U.S.C.A. § 105 (West 2002); 38 C.F.R. § 3.1(m)(2012). In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). After reviewing all the lay and medical evidence, including the Veteran's statements and testimony, the Board finds that the weight of the evidence demonstrates that currently hepatitis C was incurred during an eligible period of active service. The Veteran served on active duty in the United States Navy from November 18, 1977 to March 25, 1985, and received an honorable discharge for that period of service. The Veteran also served from March 26, 1985 to March 4, 1988, but received a discharge under dishonorable conditions. Because a February 2007 VA administrative decision shows that service for the period from March 26, 1985 to March 4, 1988 was under dishonorable conditions, it is considered a bar to payment of VA benefits and a disability which may have occurred during this time period is not eligible for VA benefits. See 38 C.F.R. § 3.120 (2012); Cropper v. Brown, 6 Vet. App. 450, 452 (1994). Pursuant to a September 2012 Joint Motion for Remand, the Veteran's claim has been returned to the Board for appellate review based on the Board's failure to adequately address relevant evidence of record, to include the credibility of the Veteran's lay assertion that he acquired hepatitis C from alcohol abuse and unprotected sex while in service, and whether an April 2009 VA examiner's assertion that the Veteran's risk factors included alcohol use and unprotected sex provide a relevant nexus to establish service connection. A Court remand is meant to entail a critical examination of the justification for the decision. See Fletcher v. Derwinski, 1 Vet. App. 394, 397 (1991). In various lay statements, the Veteran contends that hepatitis C is due to air gun inoculations, dental work, alcohol use, and/or unprotected sex in service. At the July 2009 hearing, the Veteran testified that he believes he contracted hepatitis C through inoculations and possibly even dental work when he was in boot camp in 1977. In a June 2005 private psychiatric treatment record, the Veteran attributed current hepatitis C to alcohol use and women while in the Navy. The Veteran is competent to describe possible risk factors for contracting hepatitis C in service, and as the Board will discuss in more detail below, the Board finds that his lay statements are credible. The Board finds that the Veteran's is credible in describing the receipt of inoculations via air gun injections in service as the Veteran's service immunization record shows that multiple immunizations were administered in service, and the use of air gun injections appears to be consistent with immunization practices during the Veteran's military service in 1977. Service treatment records additionally confirm that the Veteran had some dental work done in service, although the Veteran has not provided any specific allegations as to how hepatitis C may have been transmitted during such dental work. A November 1977 enlistment examination shows that the Veteran reported that he had previously diagnosed VD (venereal disease). The enlistment examination report also shows that the Veteran had a history of a gunshot wound in the thigh prior to service, though in a more recent April 2013 statement, the Veteran reported that he did not receive any blood transfusions in conjunction with treatment for the pre-service, self-inflected gunshot wound. Clinical evaluation of the endocrine system was normal on enlistment, urinalysis testing was negative, and serology testing was non-reactive. Service treatment records identify possible symptoms of liver disease in service, as laboratory testing conducted in service in October 1981 showed an elevated ALT (alanine aminotransferase) level of 55. Symptoms related to hepatitis C were not indicated on a February 1988 separation examination. A clinical evaluation of the endocrine system was normal at separation, urinalysis testing was negative, however serology revealed reactive results. Service personnel records show problems with alcohol in 1985, with a physical alcohol consultation being conducted at a naval hospital in May 1985. It was also noted that the Veteran received several disciplinary actions for being intoxicated and using marijuana during his military service. The Board finds that service treatment records tend to support the Veteran's description of having unprotected sex in service as well as heavy alcohol abuse. Service records also indicate that the Veteran was treated for alcohol abuse beginning in April 1985, just after a qualifying period of active service, and a November 2003 private treatment note indicates the Veteran had a history of heavy alcohol abuse until approximately 1993. Service treatment records reflect a history of venereal disease at enlistment, and the Veteran was tested for syphilis in 1988 during a nonqualifying period of service. For these reasons, the Board finds that the identified risk factors of alcohol abuse and unprotected sex existed both during a qualifying period of active service, and outside a qualifying period of active service. Several risk factors for hepatitis C have been recognized by VA. These include: transfusion of blood or blood product before 1992, organ transplant before 1992, hemodialysis, tattoos, body piercing, intravenous drug use (from shared instruments), high-risk sexual activity, intranasal cocaine (from shared instruments), accidental exposure to blood products as a health care worker, combat medic, or corpsman by percutaneous (through the skin) exposure or mucous membrane exposure, and other direct percutaneous exposure to blood such as by acupuncture with non-sterile needles or the sharing of toothbrushes or shaving razors. VA Training Letter 01-02 (April 17, 2001); VA Training Letter 98-110 (November 30, 1998). A June 29, 2004 VBA Fast Letter on the "Relationship Between Immunization with Jet Injectors and Hepatitis C Infection as it Relates to Service Connection" states that the large majority of HCV 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 HCV with air gun injectors, it is biologically plausible. It is essential that the report upon which the determination of service connection is made includes a full discussion of all modes of transmission, and a rationale for the examiner's opinion. Based on the forgoing, the Board finds that that the Veteran has provided competent and credible evidence identifying hepatitis C risk factors of air gun inoculations in 1977, possible blood exposure during dental work in service, as well as alcohol abuse and exposure via unprotected sex which occurred both during a qualifying period of active service and outside a qualifying period of active service. While alcohol abuse has not been recognized by VA as a risk factor for hepatitis C, see VA Training Letters 01-02 and 98-110, because alcohol abuse was identified as a possible risk factor for hepatitis C in an April 2009 VA examination report and a November 2003 private treatment report, the Board has considered alcohol abuse among the Veteran's identified risk factors for hepatitis C. The Board notes, however, that service connection for hepatic C will not be granted based on the Veteran's own willful misconduct, to include infection through the abuse of alcohol or drugs. See 38 U.S.C.A. § 105; 38 C.F.R. § 3.1(m). The Veteran was first diagnosed with hepatitis C in November 2003. The November 2003 treatment report identified a history of heavy alcohol abuse and indicated that the Veteran's wife was infected with hepatitis C through a blood transfusion. It was noted that he had a history of alcohol abuse and stopped drinking approximately ten years ago. The private physician stated that the etiology of the hepatitis C was questionable as the Veteran stopped drinking more than 10 years ago. In June 2005, the Veteran admitted to a private physician that he was very "wild" in the Navy with regard to women and drinking. He reported that "[a]lcohol and women caused [his] hepatitis." The record includes several conflicting VA and private medical opinions addressing the etiology of hepatitis C. During an April 2009 VA examination, the Veteran reported that he underwent formal testing for hepatitis C in 2003, and his wife was diagnosed with hepatitis C as well. He stated that he believes he may have passed it on to her; however, the VA examiner correctly noted that medical records indicate her probable risk factor as being a blood transfusion. The Veteran admitted to drinking heavily for approximately ten years, but denied having any tattoos, snorting cocaine, intravenous drug use, body piercings, or blood transfusions. The VA examiner opined that the Veteran's hepatitis C is "less likely as not" caused by or a result of military service. In reaching her conclusion, the VA examiner noted that service treatment records are silent for hepatitis C while on active duty, and the Veteran never experienced an acute episode of hepatitis symptoms before, during, or after service. The examiner acknowledged the one elevated ALT level of 55 in service, but attributed this to possibly a chronic condition from a pre-service exposure. She also concluded that his viral serologies reveal past exposure to hepatitis B, which could also be related to the mild ALT elevation. The examiner stated that it is biologically plausible for hepatitis C to be transmitted by a jet injector, but there is no objective evidence of this being the case, and more importantly, the Veteran has many other risk factors for hepatitis C, which include heavy alcohol use, a spouse with hepatitis C, unprotected sex, and unknown circumstances surrounding the pre-service gunshot wound. The Veteran submitted several private medical opinions in support of his claim. In an August 2008 statement, A.O. M.D., the Veteran's primary physician, stated that the Veteran had no risk factors for liver disease other than the multiple injections he received while in service. He opined that there is a medical nexus between the injections and his hepatitis C because the usual time from hepatitis C contraction and cirrhosis coincides with the time the Veteran developed his liver disease. Dr. A.O concluded that the currently existing medical condition is possibly related to the Veteran's acquiring hepatitis C in service. In a May 2010 opinion, Dr. A.O. stated that it was at least as likely as not that the chronic hepatitis C was caused by or a result of the multi-use gun injectors during his military service. He explained that review of service treatment records showed multiple injections during boot camp in 1977. He stated that if the multi-use gun injectors were not properly sanitized between injections on each recruit, it is "conceivable" that the Veteran's disease could be related to the multi-use jet gun. In a February 2010 opinion, Dr. A.R. opined that it is "conceivable that the hepatitis C virus could have been spread" via jet air gun immunization if any of the recruits or military service personnel with hepatitis C at that time were immunized using the same needle. He further added that it was difficult for him to state clearly the reason of the Veteran's hepatitis C and difficult to rule out the same. In a May 2010 private medical statement, B.C., M.D. opined that the Veteran likely became infected with hepatitis C virus (HCV) during his military service due to the air gun vaccinations and shared razors. He explained that the October 1981 in-service blood test was indicative of a liver injury and that this was very likely related to his hepatitis C infection. In a second statement dated in May 2010, Dr. B.C. opined that HVC was caused by or a result of air gun vaccinations and military barbers in service, reasoning that HVC was the cause of elevated ALT levels noted in service and that the Veteran did not have another reason for liver injury. Due to the conflicting evidence of record, the Board requested a VHA opinion to address the Veteran's multiple risk factors for hepatitis C and to clarify whether hepatitis C was likely due to air gun inoculations or unprotected sex during a qualifying period of active service, versus other identified risk factors outside a qualifying period of active service. In a February 2013 opinion, the VHA examiner stated that the only risk factors for hepatitis C identified after a review of the record was blood exposure through air gun injections and unprotected sexual contact, especially through the Veteran's second wife who was mentioned in the records as testing positive for hepatitis C. The VA examiner stated that on review of the medical literature regarding air gun injections, he did not find references or cases on hepatitis C transmission through air gun injection. The VHA examiner noted that the risk of hepatitis C transmission by sexual contact differed by the type of sexual relationship and he discussed the probability of contracting hepatitis C through various sexual relationships. He concluded, based on his review with very limited data, that he was unable to determine if the Veteran acquired hepatitis C through air gun injection or unprotected intercourse during a qualified period of service, or by another mode of pre or post-service infection. The VHA examiner stated that he did not find information in the records to identify other risk factors for hepatitis C that may have occurred during a non-qualifying period of service. With respect to elevated ALT levels noted during service, he stated that elevation of ALT may be an early indicator that the Veteran was already infected with hepatitis C, but there are other possible causes, including the use of non-prescription medication for treatment of the Veteran's chronic headaches. The Board finds that a private opinion from, Dr. A.R., which indicates that hepatitis C could have been spread via jet air gun injectors, is too speculative to support a nexus between currently diagnosed hepatitis C and service. VA regulation provides that service connection may not be based on a resort to speculation or even remote possibility. See 38 C.F.R. § 3.102; Bostain v. West, 11 Vet. App. 124, 127-28 (1998); Obert v. Brown, 5 Vet. App. 30, 33 (1993); Warren v. Brown, 6 Vet. App. 4, 6 (1993) (a doctor's statement framed in terms such as "could have been" is not probative.); Dixon v. Derwinski, 3 Vet. App. 261 (1992) (a claim must be accompanied by evidence that suggests more than a purely speculative basis for granting entitlement). While an April 2009 VA examiner opined that hepatitis C was "less likely as not" caused by or a result of military service, the Board finds that the opinion is insufficient. In that regard, in providing reasons and bases for the opinion, the VA examiner weighed other risk factors for hepatitis C, to include heavy alcohol use, a spouse with hepatitis C, unprotected sex, and unknown circumstances surrounding the pre-service gunshot, against the Veteran's claim of in-service transmission via a jet air gun injector. While service connection may not be granted based on alcohol abuse in service where it is the result of the Veteran's own misconduct, see 38 U.S.C.A. § 105; 38 C.F.R. § 3.1(m), the VA opinion did not adequately consider that the Veteran's identified risk factor of unprotected sex was shown to occur during a both a qualifying period of active service, and outside of a qualifying period of active service. The Board finds that the VA examiner's assertion that the Veteran's risk factors included unprotected sex does not provide adequate evidence of a nexus between hepatitis C and service, given the Veteran's possible exposure via unprotected sex both in service and outside of a qualifying period of active service. Thus, the Board finds that the April 2009 opinion is not probative as the reasoning for the opinion is not adequate. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). A February 2013 VHA opinion was well-reasoned; however, based on the evidence of record, a VHA examiner was ultimately unable to determine if the Veteran acquired hepatitis C through air gun injection or unprotected intercourse during a qualified period of service, or by another mode of pre or post-service infection. The Board finds, however, that the opinion is probative in confirming in-service risk factors of blood exposure through air gun injections and unprotected sexual contact, and in identifying elevated ALT levels as a possible early indicator of hepatitis C infection. The Board finds August 2008 and May 2010 opinions from Dr. A.O. tend to support the Veteran's claim that hepatitis C is related to air gun inoculations in service. While Dr. A.O. reasoned that it is "conceivable" that the Veteran acquired hepatitis C via jet air gun injections or that the currently existing medical condition is "possibly" related to the Veteran's hepatitis C, he ultimately opined that hepatic C was "at least as likely as not" related to service, reasoning that the usual time from hepatitis C contraction and cirrhosis coincides with the time the Veteran developed his liver disease. Additionally, May 2010 opinions from Dr. B.C. provide competent, credible, and probative evidence of a medical nexus between the air gun injections in service and the Veteran's hepatitis C based on elevated ALT levels in service indicative of a liver injury. The Board finds that Dr. A.O. and Dr. B.C. provided adequate reasons and bases for the opinions rendered based on findings from the record. For these reasons and resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran has provided competent, credible, and probative medical evidence showing hepatitis C is related to service. Resolving reasonable doubt in the Veteran's favor, the Board finds that hepatitis C was incurred in service. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for hepatitis C is granted. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs