Citation Nr: 1325994 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 02-06 261 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for hepatitis C with associated liver cirrhosis. REPRESENTATION Veteran represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Michael Wilson, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1966 to January 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2001 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which, in relevant part, denied the benefit sought on appeal. The Board remanded the Veteran's service connection claim for further development in September 2003, October 2005, and August 2008. In a March 2010 decision, the Board denied the Veteran's claim for service connection for hepatitis C. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In April 2011, the Court issued an Order granting a March 2011 Joint Motion for Remand (Joint Motion), and remanded the matter for action consistent with the terms of the Joint Motion. In June 2011, the Board implemented the April 2011 Court Order and remanded the Veteran's claim on appeal for additional evidentiary development. The matter was again remanded for further evidentiary development in August 2012. The Veteran testified before a Veterans Law Judge (VLJ) in a hearing held in October 2002. A transcript of that hearing is of record. In July 2012, the Board notified the Veteran that the VLJ who presided over his hearing was no longer employed at the Board, and that he was entitled to a new hearing before a different VLJ, if he so desired. In a July 2012 response, the Veteran declined the opportunity to appear at a new hearing. In August 2012, the case was remanded again for a new examination. Unsatisfied with the response, the Board in May 2013 sought a Veterans Hospital Administration (VHA) specialist's opinion on the matter at issue. A response was received in June 2013. FINDING OF FACT The Veteran's hepatitis C was at least as likely as not incurred during or as a result of his active service. CONCLUSION OF LAW The criteria for entitlement to service connection for hepatitis C with associated liver cirrhosis have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board grants entitlement to service connection for hepatitis C with associated liver cirrhosis. As this represents a complete grant of the benefit sought on appeal with respect to this claim, no discussion of VA's duty to notify and assist pursuant to the Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002), is necessary. I. Governing Law and Regulations Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Service connection may be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d) (2012). In making all determinations, the Board must fully consider the lay assertions of record. Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009). A layperson is competent to report on the onset and continuity of 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, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (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, 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, citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). The 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, 2 Vet. App. at 618. 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, 7 Vet. App. at 511. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). 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. See 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). II. Analysis The Veteran attributes his diagnosed hepatitis C with associated liver cirrhosis to his active service. He has specifically contended that his hepatitis C was incurred as a result of getting a tattoo and/or as a result of exposure to contaminated blood via air gun inoculations during service. Concerning hepatitis C specifically, the Board observes that medically recognized risk factors for hepatitis C include: (a) transfusion of blood or blood product before 1992; (b) organ transplant before 1992; (c) hemodialysis; (d) tattoos; (e) body piercing; (f) intravenous drug use (with the use of shared instruments); (g) high-risk sexual activity; (h) intranasal cocaine use (also with the use of shared instruments); (i) accidental exposure to blood products as a healthcare worker, combat medic, or corpsman by percutaneous (through the skin) exposure or on mucous membrane; and (j) other direct percutaneous exposure to blood, such as by acupuncture with non-sterile needles, or the sharing of toothbrushes or shaving razors. See VBA Training Letter 211A (01-02), dated April 17, 2001. A VA Fast Letter (FL) issued in June 2004 (FL 04-13, June 29, 2004) identified "key points" that included the fact 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 of the blood supply began in 1992, and hemophiliacs treated with clotting factor before 1987). Another "key point" was the fact that hepatitis C can potentially be transmitted with the reuse of needles for performing tattoos, body piercing, and acupuncture. It was concluded in FL 04-13 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. It also noted that transmission of hepatitis C virus with air gun injections was "biologically plausible," notwithstanding the lack of any scientific evidence so documenting. FL 04-13 noted that it was "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 as to why the examiner believes the air gun was the source of the hepatitis C. Considering first the current disability requirement for service connection, a May 2001 VA Gastroenterology (GI) Liver Clinic note, dated during the pendency of the Veteran's appeal, indicated that he was assessed with chronic hepatitis C. During a June 2001 GI consultation, the Veteran was noted to have hepatitis C related cirrhosis. A review of the record reveals that the Veteran was initially diagnosed with hepatitis C in May 1998. He was shown to have elevated liver function tests (LFT's) one month before in April 1998. The July 2004 VA examination diagnosed hepatitis C infection, status post treatment with Rebetron and Interferon. The report noted that after treatment in 2001, he was found to have a hepatitis C relapse in December 2002. Clearly, the current disability requirement has been met. Turning to the second requirement for service connection, an in-service disease, event, or injury, a review of the Veteran's service treatment records (STRs) reveals no indication that he was diagnosed with or treated for hepatitis C during service. The Board acknowledges, however, that testing for hepatitis C antibodies largely did not begin until the year 1992, as previously noted. Regardless, the Veteran credibly testified during an October 2002 hearing that he received multiple inoculations via air gun injection during service. He specifically remembered seeing blood on the instruments used for such injections, and that the instruments were not cleaned between each use. A review of his STRs reveals that he received numerous immunizations between 1966 and 1967. He additionally credibly testified that he received a tattoo during his service; however, in response to questioning, he indicated that he was under the impression that the tattoo was received at a reputable tattoo parlor. Based on this evidence, the Board finds that the Veteran was exposed to in-service hepatitis C risk factor, and thus, the second requirement for service connection has been met. Accordingly, the Board is left to consider whether there is a nexus between the Veteran's current hepatitis C disability with associated liver cirrhosis, first diagnosed during the May 1998 VA GI consultation, many years after his separation from service, and his in-service risk activities. See 38 C.F.R. § 3.303(d) (2012). In reviewing post-service risk factors noted in the record, the Veteran has repeatedly denied using intravenous drugs or taking drugs via nasal inhalation. A review of his VA treatment records, however, reveals an instance where he was noted to have been positive for cannabinoids after a urine drug screen. The record additionally reflects an instance where the Veteran engaged in a high risk sexual practice after his marriage to his first wife, following his separation from service. The Veteran additionally credibly testified during his October 2002 Board hearing that he underwent back surgery in 1992 at Pontiac Osteopathic Hospital. He later indicated that the surgery was, instead, likely performed at Pontiac General Hospital. He testified that he did not receive blood during the surgery, but that he did he receive plasma. After a review of the record, the date of the Veteran's back surgery remains unclear. Similarly, whether or not the Veteran received blood product during the surgery has remained inconclusive. Nonetheless, information obtained from Pontiac General Hospital regarding the testing of the blood products revealed that all blood products were received from the American Red Cross (ARC), and the ARC indicated in an April 2012 letter that they began testing for hepatitis C in blood donations beginning in 1990. An additional risk factor concerns the Veteran's reported exposure to blood through his employment with the railroad. Notable, during his November 2006 VA examination, he reported assisting a coworker who had severed his thumb. He noted that his coworkers blood was dripping down onto his own hands, and that it was possible he may have had multiple an injury on his own hands at that time, as such injuries were frequent. The Veteran has been afforded multiple VA examinations in an effort to obtain an adequate medical opinion, regarding whether hepatitis C was at least as likely as not incurred during or as a result of his active service, to include as a result of receiving air gun inoculations and getting a tattoo. The Veteran's first VA GI examination was conducted in July 2004. The VA examiner reviewed the pertinent medical history and provided the opinion that his hepatitis C was at least as likely as not related to the tattoo that he received to his upper left arm in 1966, during his service. Following that examination, however, the Board sought an additional VA opinion because July 2004 VA examiner indicated that the Veteran had not received a blood transfusion, and based on the Veteran's prior testimony it appeared that he indeed had at least received plasma. A subsequent VA examination was conducted in November 2006. The Veteran reported at that time his wife also had hepatitis. The VA examiner noted the Veteran's risk factors, including receiving a tattoo and his exposure to air gun inoculations during service, and being exposed to blood and engaging in a high risk sexual practice after service. The examiner gave the opinion that the biggest risk factors for hepatitis C for the Veteran were being exposed to a coworker's blood, receiving blood products during surgery in 1991 or 1992, and engaging in a high risk sexual practice, just after his marriage to his first wife. The examiner further noted that the Veteran's tattoo could also be a plausible source for hepatitis C, but that he apparently received the tattoo at a reputable business. The examiner also opined that due to the lack of scientific evidence to document transmission and the presence of well-documented sources, the Veteran's hepatitis C was not likely caused by or a result of his exposure to air gun inoculations during service. The Veteran was afforded yet another VA examination in May 2012. The VA examiner again noted the relevant risk factors, including a plasma infusion during surgery in approximately 1991. The examiner provided the opinion that the Veteran's hepatitis C was less likely than not incurred as a result of the use of an air gun during vaccinations performed on active duty. The examiner indicated that this conclusion was reached after a review of medical literature and considering the Veteran's multiple risk factors, and after carefully weighing the relative risk ratios for the multiple risk factors for exposure. The examiner did not specifically consider the Veteran's in-service risk factor of getting tattoo, or provide an alternate etiology for the incurrence of hepatitis C. The Veteran was afforded his most recent VA examination in September 2012. The VA examiner reviewed the evidence of record, including the Veteran's medical history and reported exposure risks. The examiner noted that the Veteran did not recall receiving blood product during his lumbar laminectomy in 1992. The examiner noted, however, that there were no available medical records to substantiate his having received any blood product during his back surgery. The examiner did note the Veteran's other risk factors, including the tattoo, receiving air gun inoculations, engaging in a high risk sexual practice, and being exposed to a co-workers blood while working on the railroad. The examiner gave the opinion that the Veteran's hepatitis C was less likely than not caused by vaccinations by air gun injection during his active service. After providing extensive comment on the hepatitis C infection process and risk factors, the examiner concluded that there was no evidence of record to substantiate that the air gun used for inoculations in the military was contaminated, but that the Veteran had multiple risk factors for developing hepatitis C, as noted, none of which were caused by or a result of the military. In reviewing this opinion, the Board observes that the VA examiner did not expressly discuss the risk factor associated with the Veteran's receipt of a tattoo during his service. While receiving a tattoo was noted as a risk factor, the examiner appeared to suggest that the Veteran's particular tattoo was not service-related, contrary to prior evidence in the record. Moreover, the examiner's opinion again provided conclusory reasoning as to why air gun inoculations did not cause his hepatitis, without addressing the Veteran's contention that he could see blood on the air gun device. The VA examiner additionally did not discuss which, if any, of the Veteran's other risk factors may have played a larger role in his development of hepatitis C, and did not provide any medical bases to support her etiological opinion that other, non military, risk factors were to blame for the Veteran's incurrence of hepatitis C. In May 2013, the Board made another attempt to ascertain the etiology of the Veteran's claimed hepatitis C by requesting a medical expert opinion from a healthcare professional in VA's Veterans Health Administration (VHA) as to whether it was at least as likely as not that the Veteran's hepatitis C was incurred during or as a result of active service, to include his noted risk factors of receiving air gun inoculations and/or receiving a tattoo. See 38 C.F.R. § 20.901(a) (2012) (the Board may obtain a medical opinion from an appropriate health care professional in the VHA of VA on medical questions involved in the consideration of an appeal when, in its judgment, such medical expertise is needed for equitable disposition of an appeal). In a January 2013 opinion, a VHA specialist reviewed the lay and medical evidence of record, including the Veteran's medical history with respect to his hepatitis C. He noted each of the Veteran's in-service and post-service risk factors as detailed above. Notably, the specialist indicated that needle contamination, via receiving a tattoo, remained a risk factor, even if obtained at a "reputable" establishment. With respect to the Veteran's lumbar laminectomy, performed sometime around 1991, the specialist noted that actual dates regarding blood testing for hepatitis C and the date of his surgery were uncertain. The specialist concluded that without before and after exposure laboratory testing, it was not possible to determine the contribution of any blood products to the Veteran's clinical hepatitis course. The VHA specialist also noted that following the Veteran's initial hepatitis C diagnosis, he was treated with interferon/ribavirin which was stopped due to elevated LFT's. The Veteran again had detectable hepatitis C virus on testing in 2001, which was followed by a relapse in December 2002. He then completed a second course of therapy for a full 12 months. With respect to other risk factors, the VHA specialist indicated that VA acknowledged on its own website that air gun use was a theoretically possible mode of transmission for hepatitis C. He noted that without testing prior to service as well as after discharge, there was not medical methodology to dispute the possibility of this mode of transmission. He further noted evidence of an epidemic in which there was isolation of air gun versus needle injection use, demonstrating clear-cut transmissibility of a hepatitis virus-hepatitis B in this particular case (which was medically equivalent in all aspects of mode of transmission with hepatitis C)-when injections were given via air gun route. Thus, the VHA specialist concluded that air gun transmission, which demonstrated a 24 percent incidence of hepatitis transmission, was a real and not just theoretical possibility. The VHA specialist further noted that without evidence of specific retesting of the Veteran referent to the virus signature and genotype, it was not possible to determine if his "relapse" in December 2002 represented a recurrent of the presumptively undertreated viral infection, as a result of being treated for six months rather than the standard 12 months, or whether the recurrent active hepatitis represented a new hepatitis C infection. Here, the specialist noted that the Veteran was clearly engaging in high risk behaviors which could be an etiology for a new infection, but that it was medically impossible to determine if there was an actual relapse or a new hepatitis C infection. Additionally, where his wife also had hepatitis C, he noted that it would have been helpful to know when she was diagnosed, and whether she had the same bio-identical viral signature as the Veteran. In addition to the foregoing, the VHA specialist concluded that, barring evidence to the contrary, there was no medical method to disprove either air gun inoculation or contaminated tattoo needle administration as a mode of hepatitis C transmission, especially insofar as there was no testing available in 1968-1970 to determine hepatitis C status and no other hepatitis viral testing was performed on the Veteran until 1998. Also, whether the Veteran could have received contaminated blood products concomitant with any medical procedure (i.e., during back surgery), or contracted hepatitis from high risk personal behavior or from blood exposure from coworker between 1968 and 19998, was also impossible to determine without sequential hepatitis C viral testing. Based on the foregoing, the VA examiner concluded that as there was no exculpatory evidence in the record provided to prove otherwise, the Veteran could have likely contracted hepatitis C during or as a result of his service from either an air gun or tattoo exposure. The Board finds that the VHA specialist's opinion was well-informed, well-reasoned, and fully articulated. See Nieves-Rodriguez, 22 Vet. App. at 304. In contrast to the multiple prior VA examiner opinions that did not fully consider the lay and medical evidence of record, and reached seemingly differing conclusions, the VHA specialist thoroughly reviewed and considered each of the Veteran's risk factors, and, after examining the history of his hepatitis C infections, concluded that his two noted in-service risk factors of receiving air gun inoculations and getting a tattoo could have at least as likely as not led to his hepatitis C infection and resulting liver cirrhosis. Accordingly, given the adequacy of the VHA specialist's opinion, the Board affords the opinion greater probative value than to the prior VA examiner opinions of record. Therefore, the Board finds that the final requirement for service connection has been met. In sum, the Board finds that all required elements to establish service connection for hepatitis C with liver cirrhosis have been met. The Veteran has a current disability, he engaged in or was exposed to hepatitis C risk factors during service, and an adequate medical opinion has at least as likely as not etiologically related his current hepatitis C to his in-service risk factors. See Walker, supra; 38 C.F.R. § 3.303(d) (2012). In reaching this conclusion, the Board observes that an "absolutely accurate" determination of etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Rather, this need only be an as likely as not proposition for all reasonable doubt to be resolved in the Veteran's favor and his claim resultantly granted. See 38 C.F.R. § 3.102 (2011). Accordingly, all doubt with respect to this claim is resolved in favor of the Veteran and his claim for service connection for hepatitis C with liver cirrhosis is granted. 38 U.S.C.A. § 5107(b) (West 2002). ORDER Entitlement to service connection for hepatitis C with associated liver cirrhosis is granted. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs