Citation Nr: 1431207 Decision Date: 07/11/14 Archive Date: 07/15/14 DOCKET NO. 10-07 589 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: C. E., under the provisions of 38 C.F.R. § 14.630 (2013) WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The Veteran served on active duty from March 1983 to February 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Montgomery, Alabama, Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for hepatitis C and depressive disorder, secondary to hepatitis C and/or traumatic brain injury (TBI). The Veteran presented testimony before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing in March 2014. A transcript of that hearing is of record and associated with the Veteran's Virtual VA eFolder. During the pendency of this claim, service connection for residuals of TBI and depressive disorder, secondary to TBI, were granted by rating decision of June 2014. Therefore, the issue of service connection for depressive disorder secondary to residuals of TBI and/or hepatitis C is no longer before the Board and is not reflected on the title page. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, hepatitis C is etiologically related to the Veteran's active service. CONCLUSION OF LAW Hepatitis C was incurred during active service. 38 U.S.C.A. §§ 1131, 1154(a); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Assist and Notify As to the issue of entitlement to service connection for hepatitis C, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that there was any error with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further considered. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303. Service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, the evidence 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) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's treatment records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). The United States Court of Appeals for the Federal Circuit has rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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 v. Shinseki, 581 F.3d. 1313 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Finally, in a claim for service connection, the ultimate credibility or weight to be accorded evidence must be determined as a question of fact. The Board determines whether (1) the weight of the evidence supports the claim, or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim: the veteran prevails in either event. However, if the weight of the evidence is against the veteran's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran asserts that he contracted hepatitis C as a result of activity in service. He claims that he received inoculations with an air gun injector and that blood from the previous servicemen was left on the injector upon injection and passed on to him and every other service person. He also claims, alternatively, that while in service, he was in survival school and during training, his hands were cut, as were other servicemen, and they had blood to blood exposure via their hands. Service treatment records (STRs) are devoid of findings, treatment, or diagnosis of hepatitis C. STRs do reflect service immunization records, but do not indicate the method by which the Veteran received these immunizations. In February 1984, the Veteran was seen and treated for complaints of headache, diarrhea, and vomiting after returning from Panama jungle training. The plan was to observe him for any further symptoms. No findings, related to hepatitis C were noted on separation from service. After service, it was related in the Veteran's medical records that he was diagnosed with hepatitis C in 1998, at least 10 years after service, when he attempted to give blood to the Red Cross. None of the Veteran's medical records were indicative of risk factors, except that one physician reported the Veteran gave a history of heterosexual activity with women in Central America. The Veteran has since denied a history of all high risk sexual behavior. He has made medical complaints related to hepatitis C, indicating that his symptoms are "flu-like", with headaches, and chronic fatigue. He related the onset of chronic fatigue, headaches, aching and joint pain, with onset in the 1980's. The Veteran's medical records since service show that he presently has hepatitis C. In July 2013, a VA opinion was requested and made. The examiner indicated the Veteran's medical history of inoculation with air guns in service and his open wound bleeding after an obstacle course. At no time during service or prior to 1998, had the Veteran had documented acute hepatitis C. He had no transfusions or tattoos. At the time of the opinion, the Veteran was a sustained viral responder with no detectable hepatitis C after three rounds of treatment. The examiner was asked which risk factor for hepatitis C more likely as not was the cause for the Veteran's hepatitis C. The examiner stated he would have to resort to speculation since it was not clear when the Veteran acquired hepatitis C and it was not clear that the Veteran acquired hepatitis C in service. He also stated that air guns used for immunizations had not been shown in any peer study he was aware of to be responsible for transmission of hepatitis C. Risk factors for contracting hepatitis C include intravenous (IV) drug use, blood transfusions before 1992, hemodialysis, intranasal cocaine, high-risk sexual activity, accidental exposure while a health care worker, and various kinds of percutaneous exposure such as tattoos, body piercing, acupuncture with non-sterile needles, shared toothbrushes or razor blades. See VBA Fast Letter 211B (98-110) November 30, 1998. The Veteran has consistently and credibly denied any of these risk factors prior to or following his period of active service. The issue here is whether the Veteran's immunizations by air gun injection may have resulted in his contracting hepatitis C. Injections by air gun are not among the traditionally recognized risk factors for hepatitis C. However, there is competent evidence of record that blood borne diseases have been transmitted via air gun injections and, more pertinently, that hepatitis C can be transmitted in this manner. The Veteran testified at a videoconference hearing in March 2014. At that hearing, the Veteran's representative, his spouse, indicated that she had a medical background in dentistry and in nursing and that via her training, it was her knowledge that the Veteran could have contracted hepatitis C via blood to blood contact at his jungle training in service or via air gun inoculation. She specifically indicated the Veteran was seen after his jungle training with complaints of diarrhea, headaches, and symptoms that could be attributed to hepatitis C during the incubation period. The Veteran submitted reports from the Centers for Disease Control and Prevention (CDC) and the Department of the Army regarding the discontinuance of jet injection immunization devices by the Department of Defense (DOD). It was indicated, in pertinent part, that their use involved unsterilized nozzle and fluid pathways to inject consecutive patients which could allow transmission of blood borne pathogens. DOD withdrew use of these devices in 1997 due to safety concerns. VBA Fast Letter titled "Relationship Between Immunization with Jet Injectors and Hepatitis C Infection as it Relates to Service Connection," VBA Fast Letter 211 (04-13), June 29, 2004, states that while there is at least one case report of hepatitis B being transmitted by an air gun injection, there have been no case reports to date of hepatitis C being transmitted via air gun injection. However, the letter goes on to state that despite the lack of any scientific evidence to document transmission of hepatitis C by air gun injectors, it is biologically plausible. The credible evidence shows that the Veteran does not have a history of exposure to any risk factors for contracting hepatitis C other than by air gun injections during active service or by percutaneous exposure. While air gun injections are not a traditionally recognized risk factor, the competent and probative evidence shows that there are documented cases of hepatitis B being transmitted in this manner, and that hepatitis C may also be similarly transmitted. Further, the Veteran is clearly competent to state that he was injected with the air gun during service, and to report that he saw no sterilization upon repeated use of the air gun for immunizations, before or after his use. He is also competent to state that the same condition that he is currently experiencing that is diagnosed as hepatitis C are the same symptoms that he had in service. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Although there is no medical opinion indicating that it is at least as likely as not that the Veteran contracted hepatitis C as a result of air gun injection device use in service, the submitted reports by the Veteran from the CDC and DOD refute the July 2013 VA medical opinion indicating that there were no peer studies indicative of transmission of hepatitis C via air gun injection devices. Although these reports do not state unequivocally that hepatitis C has been transported by these devices, they do indicate that blood borne pathogens could be transmitted through this mechanism. Moreover, the VBA Fast Letter does indicate that hepatitis B has been documented as transmitted via air gun injection. Finally, the Veteran's representative, who has professed to have medical expertise, has indicated that the Veteran's symptoms in service in 1984, vomiting, headaches, and diarrhea, are also symptoms occurring during the incubation period of hepatitis C. There is no medical evidence to the contrary. As to the assertion of causation as a result of blood to blood exposure during Panama jungle training, the Veteran is competent to describe his inservice training and any resulting blood to blood exposure. There is no medical opinion in support of or against such method of causation. Therefore, this remains only a risk factor. Accordingly, the Board finds that the evidence is at least in equipoise as to a relationship between the Veteran's hepatitis C and his period of service. Therefore, the Board resolves reasonable doubt on this matter in the Veteran's favor. See 38 C.F.R. § 3.102. The Board finds that the Veteran has hepatitis C (1st prong), he contracted the disease in service (2nd prong), and there is a causal relationship between present hepatitis C and the air gun injections in service (3rd prong). Therefore, service connection for hepatitis C is warranted on a direct basis. See Shedden, 381 F.3d at 1166-67; 38 C.F.R. § 3.303. ORDER Service connection for hepatitis C is granted. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs