Citation Nr: 1602489 Decision Date: 01/21/16 Archive Date: 01/28/16 DOCKET NO. 08-21 197 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Journet Shaw, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1970 to July 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The case has since been returned to the RO in Atlanta, Georgia. In June 2012 and May 2014, the Board previously remanded the issue on appeal for additional development. As the actions specified in the remand have been completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The preponderance of the competent and credible evidence does not demonstrate that the Veteran's hepatitis C had its onset during service, or was caused by, or the result of, his active military service, to include sexual transmission, mosquito bites, jet-gun injectors, and/or electric razors. CONCLUSION OF LAW The criteria to establish entitlement to service connection for hepatitis C have not been met. 38 U.S.C.A. § 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the claims file, and has an obligation to provide an adequate statement of reasons or bases supporting its decision. See 38 U.S.C.A. § 7104 (West 2014); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Board must review the entire record, it need not discuss each piece of evidence. Id. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. It should not be assumed that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Id. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Equal weight is not accorded to each piece of evidence contained in the record, and every item of evidence does not have the same probative value. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Id. I. Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board finds that the notice requirements have been satisfied by a July 2006 letter. The Board concludes that the duty to assist has been satisfied as all pertinent service records, post-service treatment records, and lay statements are in the claims file. In addition, the Veteran underwent a VA examination in July 2012. In addition, the Veteran was afforded addenda opinions in July 2014 and March 2015. For the above reasons, the Board finds that VA has fulfilled its duties to notify and assist the Veteran. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the claim. II. Service Connection The Veteran asserts that he contracted hepatitis C during his military service. He offers several theories of exposure, including being bit by disease carrying mosquitoes while in Vietnam and engaging in unprotected sex. Alternatively, he also posited that he could have been infected with hepatitis C from jet-gun injectors during inoculations and/or electric razors used to cut his hair in-service. See July 2006 statement and March 2012 and March 2014 informal hearing presentations. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection requires: (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. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Pertinent law further provides that a Veteran who served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent. 38 U.S.C.A. § 1116 (West 2014); 38 C.F.R. § 3.307(a)(6)(iii) (2015). For purposes of application of this legal presumption, service in the Republic of Vietnam means actual service in-country in Vietnam from January 9, 1962 through May 7, 1975, and includes service in the waters offshore, or service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. §§ 3.307(a)(6)(iii), 3.313(a) (2015). In this case, the evidence does show that the Veteran served in Vietnam, however, he has not been diagnosed with a presumptive disease for exposure to herbicides. Therefore, the Veteran is not entitled to consideration of presumptive service connection on this basis. See DD Form 214. Service treatment records do not document that any evidence that the Veteran complained of any symptoms or that any findings or diagnoses were made related to hepatitis C. See November 1969 pre-induction examination and November 1972 separation examination. The Veteran's military personnel records show that his military occupational specialty was as a Combat Engineer. An August 2005 VA History and Physical Note is the first post-service treatment record that reports a positive laboratory result for hepatitis C. In January 2008, the Veteran had undergone a liver biopsy, which showed chronic hepatitis. See April 2011 VA treatment record. A September 2009 VA treatment record documents that the Veteran had completed his interferon therapy for hepatitis C. Subsequent VA treatment records do not reflect any further problems related to his hepatitis C. In July 2012, the Veteran underwent a VA examination. The VA examiner noted that the Veteran had a blood transfusion, but it was after he had been diagnosed with hepatitis C. Regarding the other risk factors for hepatitis C, the VA examiner noted that the Veteran denied intranasal cocaine use, tattoos, and intravenous drug use; but, he admitted to having had unprotected sex in the past. The Veteran did not specify whether he had unprotected sex during service. The VA examiner noted that the Veteran's high risk sexual activity was a risk factor for his hepatitis C diagnosis. Following a review of the Veteran's medical records, the VA examiner found that there was no evidence of active hepatitis C virus infection, and that the Veteran had achieved sustained virologic responses with his treatment. The VA examiner noted that an opinion was not indicated. According to a July 2013 VA treatment record, upon questioning, the Veteran denied any of the known risk factors for acquiring hepatitis C, including blood transfusions before 1992, abnormal liver studies, heroin or cocaine use, previous needle stick injury, getting someone else's blood on an open cut on his skin, mouth, or eyes, tattooing or body piercing, multiple sexual partners, past heavy alcohol use, or hemodialysis treatments. In July 2014, the July 2012 VA examiner provided an addendum VA medical opinion. Following a review of the Veteran's claims file, including his medical records, the VA examiner opined that the Veteran's hepatitis C, which was diagnosed in 2005, was less likely than not incurred in or caused by service. Citing the findings in the July 2012 VA examination report, the VA examiner determined that there was no objective evidence to support a medical nexus between the Veteran's active duty service and his hepatitis C diagnosed many years later. In March 2015, a different VA examiner provided another VA medical opinion. The VA examiner specifically addressed the Veteran's allegation of having contracted hepatitis C from mosquito bites. Based on a review of medical literature, the VA examiner concluded that the Veteran's hepatitis C was less likely than not incurred in or caused by his active duty service, to include contracting hepatitis C from mosquito bites in Vietnam. Citing the medical literature, the VA examiner found that there was no support for arthropod-borne spread of hepatitis C, noting that hepaciviruses and pestiviruses are not arthropod-borne. Based on careful review of the evidence, the Board finds that the evidence weighs against finding in favor of the Veteran's service connection claim for hepatitis C. 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. VBA Training Letter 211A (01-02) (Apr. 17, 2001). In addition, despite the lack of any scientific evidence to document the transmission of hepatitis C virus with airgun injectors, it is biologically plausible. See VBA Fast Letter 211 (04-13) (June 29, 2004). In this case, the Board finds that the evidence does not support that any of these risk factors are plausible in-service scenarios for how the Veteran contracted hepatitis C. The Board has considered the Veteran's various allegations as to how he may have contracted hepatitis C. With regard to the Veteran's contention that he may have been exposed to hepatitis C from his history of unprotected sex "in the past," the Board acknowledges that high risk sexual activity is a risk factor for hepatitis C. However, the July 2014 VA examiner had considered the Veteran's history of unprotected sex and still found that there was no objective evidence to support a medical nexus between the Veteran's active duty service and his hepatitis C, which was diagnosed many years later. Indeed, there was no assertion that the Veteran had engaged in unprotected sex during his active duty service. With regard to the Veteran's contention that he was infected with hepatitis C from mosquito bites while serving in Vietnam, the Board finds that the March 2015 VA examiner's opinion provides the most probative evidence as it was based on a review of current medical literature and supported by a complete rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). With regard to the Veteran's contention that he was infected with hepatitis C from jet-gun injectors during inoculations, the Board finds that the Veteran's assertion is too vague, as he does not claim a particular in-service incident. As noted above, it is biologically plausible to contract hepatitis C from a jet-gun injector; however, the Veteran's service treatment records do not show that he ever received such inoculations with a jet-injector. Furthermore, the Veteran has not provided any information or details as to the circumstances of his alleged jet-gun injector inoculations, to include whether any such jet-gun injectors were contaminated with hepatitis C. Without more information, the Board is not required to seek further development. Finally, with regard to the Veteran's contention that he was infected with hepatitis C from electric razors used to cut his hair, the Board finds that the Veteran has not submitted evidence that such an allegation is plausible. As noted above, direct percutaneous exposure to blood, such as by acupuncture with non-sterile needles, or the sharing of toothbrushes or shaving razors, is a medically recognized risk factor for hepatitis C exposure. Electric razors used to cut hair are not among those specified risk factors. While shaving razors may provide a pathway for hepatitis C exposure, because there is a likelihood of blood being drawn, the Veteran has not provided any evidence that he was ever cut from the use of an electric razor used to cut his hair. Indeed, such devices are designed to avoid that scenario. Again, without more information that such razors are likely or plausibly capable of being a tool for exposing an individual to contaminated blood, and an allegation from the Veteran that he was actually cut by such a razor, the Board is not required to seek further development. Significantly, the overwhelming evidence demonstrates that the Veteran never reported having been infected with hepatitis C during his active duty service as a result of inoculations or electric razors. Such allegations were not made until the Veteran was seeking compensation for his claim. Therefore, the Board finds that these assertions are not credible. See Gardin v. Shinseki, 613 F.3d 1374, 1380 (Fed. Cir. 2010); see also Cromer v. Nicholson, 19 Vet. App. 215 (2005). The Veteran's assertions represent the only evidence of record linking his hepatitis C to his active duty service. Although the Veteran is competent to report on observable symptoms of hepatitis C, because he has no specialized training or expertise in the origin of medical conditions, he is not competent to establish the required linkage between any such condition and his active duty service. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006); Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, the Board finds that in the absence of competent and credible evidence linking the Veteran's hepatitis C to an in-service incident, the Board concludes that the Veteran's hepatitis C was not incurred in or caused by his active duty service. As the preponderance of the evidence is against the Veteran's service connection claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. ORDER Entitlement to service connection for hepatitis C is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs