Citation Nr: 1620439 Decision Date: 05/19/16 Archive Date: 05/27/16 DOCKET NO. 10-39 429 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for hepatitis C. 3. Entitlement to service connection for a respiratory disorder, to include chronic obstructive pulmonary disease (COPD) and residuals of pneumonia. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD T. Minot, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1967 to November 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In November 2011, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In February 2013, the appeal was remanded by the Board for additional evidentiary development. The issues of entitlement to service connection for an acquired psychiatric disorder and a respiratory disorder are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT There is at least an approximate balance of positive and negative evidence as to whether the Veteran's current hepatitis C had its onset during service. CONCLUSION OF LAW Resolving doubt in favor of the Veteran, his hepatitis C was incurred in service. 38 U.S.C.A. §§ 1110, 1111, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that he acquired hepatitis C due to air gun inoculations in service, or as a result of an in-service blood transfusion. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C.A. §1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). A veteran will be considered to have been in sound condition when examined and accepted for service, except as to disorders noted at entrance into service, or when clear and unmistakable evidence demonstrates that the disability existed prior to service and was not aggravated by service. 38 U.S.C.A. § 1111. To rebut the presumption of sound condition upon entry into service under 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). To satisfy the second requirement for rebutting the presumption of soundness, the government must show, by clear and unmistakable evidence, either (1) that there was no increase in disability during service, or (2) that any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). In general, for service connection to be granted for hepatitis C, the evidence must show that a veteran's hepatitis C infection, risk factor(s), or symptoms were incurred in or aggravated by service. The evidence must further show by competent medical evidence that there is a relationship between the claimed in-service injury and the veteran's hepatitis C. Risk factors for 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 letter 211B (98-110) November 30, 1998. A VA Fast Letter issued in June 2004 (Fast Letter 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 tattoos, body piercing, and acupuncture. It was concluded in Fast Letter 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. Additionally, the Fast Letter noted 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. Id. The Veteran's service treatment records are negative for complaints or treatments related to hepatitis C. In June 2006, a private clinical note indicated that the Veteran reported a long history of hepatitis C. The Veteran stated that this "occurred with his promiscuous years." No additional explanation of etiology was provided. He has been treated for the disease since that time. In April 2009, the Veteran submitted a letter from a private physician who provided a diagnosis of chronic hepatitis C, genotype 1 with a high viral load and evidence of cirrhosis with compensated portal hypertension. The physician noted that the Veteran had no past history of obvious risk factors, and therefore his acquisition of hepatitis C must be secondary either to a blood transfusion or to a medically related needle stick mishap. In June 2009, the Veteran submitted copies of testimony before the Congressional Subcommittee on Benefits in the Committee on Veterans' Affairs, dated in April 2000, which noted, inter alia, the rising prevalence of hepatitis C among veterans and provided evidence that hepatitis C could go undetected for 20 or 30 years. He also submitted a World Health Organization report recommending that needle-free vaccine injectors be discontinued due to the risk of cross-contamination. In his September 2010 substantive appeal, the Veteran averred that his hepatitis C resulted from cross-contamination from a jet injector vaccine gun. He stated that he was hospitalized in March 1968 at Fort Leonard Wood following an injection. Service treatment notes from March 1968 reflect that the Veteran was treated for an injured right thumb. During the November 2011 Board hearing, the Veteran reported that he had been diagnosed with hepatitis C about 10 years ago, and he reiterated that he believed he acquired hepatitis C from in-service inoculations. He also stated that he had an infection of some sort and was hospitalized in April 1968, which may have been due to a blood transfusion. In February 2013, the Board remanded the matter in order to obtain a VA medical opinion. An opinion was obtained in April 2013. After speaking with the Veteran and reviewing the record, the examiner opined that it was less likely than not that the Veteran's hepatitis C was caused by or was the result of mass inoculations in service, as "the current medical [literature] does not support this." Rather, it was more likely that the Veteran had acquired hepatitis C through a childhood blood transfusion; however, the examiner cautioned, "that cannot be stated with any accuracy." The examiner did not discuss the Veteran's history regarding high-risk activities (aside from the reported blood transfusion) that could have exposed him to hepatitis C. In April 2013, the Veteran submitted an opinion from his private physician. The opinion stated that, "It is more likely than not that you acquired your hepatitis C . . . during your military service, and if you have no history of drug abuse or sexual encounter during your service, that a breech [sic] in infection control (nosocomial transmission at a medical procedure) is the source of your [hepatitis C] infection." The physician acknowledged that determining whether a remote health-related event is the source of an acquired hepatitis C infection is difficult. Notwithstanding, "blood-borne infections are commonly acquired at unsterile percutaneous exposure, particularly when the participating medical personnel are not cognizant of the risk." In June 2013, the Veteran submitted a statement describing an in-service incident when he donated blood directly to a fellow service member. Under the circumstances of this case, and with resolution of all reasonable doubt in favor of the Veteran, the Board concludes that service connection for hepatitis C is warranted. Initially, the Board notes that the Veteran's induction examination in October 1967 shows no indication of hepatitis C. Although the record is suggestive of childhood blood transfusions, the Board finds that the record does not clearly and unmistakably show that hepatitis C preexisted service. As such, the Veteran is presumed to have been in sound condition on entry into active duty. See U.S.C.A. § 1111; 38 C.F.R. § 3.304. Having found that the Veteran is presumed sound at entry, the Board further finds that the evidence is in equipoise as to whether his current hepatitis C is related to service. In support of this conclusion, the Board notes that the Veteran's private physician concluded, in light of the absence of other risk factors, that the Veteran's hepatitis C was incurred due to a breach in infection control during service. The Board also finds that the Congressional testimony provided by the Veteran indicating that hepatitis C can develop without symptoms over the course of several decades supports his claim, as does the World Health Organization report of possible risk of cross-contamination from needle-free vaccinations. The Board acknowledges the April 2013 VA examiner's negative opinion. However, the Board notes that the examiner's alternative explanation for the Veteran's acquisition of his disease-that it was acquired from a childhood blood transfusion-could not, by his own admission, be supported with any accuracy. Additionally, the examiner stated that the "current medical literature" did not support the claim that in-service vaccinations caused hepatitis C. As noted above, however, VA has acknowledged that transmission of hepatitis C by air gun injectors is biologically plausible. Not only does the VBA Fast Letter make a "plausible argument" for the transmission of hepatitis C through air gun injections based on objective facts, but there is also a medical opinion of record which supports a possible relationship between the Veteran's hepatitis C and the air gun injections he received during active service. As a result, the Board finds that there is an approximate balance of positive and negative evidence regarding the question of whether the Veteran's hepatitis C was incurred in service. Therefore, the Board resolves any doubt on this matter in the Veteran's favor. See 38 C.F.R. § 3.102. Service connection is warranted. ORDER Entitlement to service connection for hepatitis C is granted. REMAND After reviewing the evidence, the Board finds that the remaining issues must be remanded for further evidentiary development. Initially, further attempts must be made to corroborate the Veteran's reported in-service stressors with respect to his claim for PTSD. During his Board hearing, he reported that he was involved in a violent encounter with a taxi driver in Thailand in July 1968. In addition, he reported witnessing an accident involving a "bomb truck," and stated that on another occasion he was ordered to bury bodies that were being eaten by vultures. In written correspondence submitted in June 2015, he also reported witnessing a fatal accident involving a school bus while in Thailand; witnessing a fatal motor vehicle accident involving a "rock truck" in November or December 1968; recovering bodies in the aftermath of Hurricane Camille, in April 1969; and being harassed by commanding officers in 1969 and 1970. To date, the AOJ has taken no steps to verify these stressors. When the above development has been accomplished, the AOJ should schedule a VA psychiatric examination in order to clarify the Veteran's psychiatric diagnoses and evaluate him under the updated DSM-V diagnostic criteria. See 38 C.F.R. §§ 3.404(f), 4.125(a). The examiner should determine whether the Veteran has a diagnosis of PTSD; identify any other psychiatric disorders; and clarify whether such disorders manifested in service or are otherwise related to service. The examiner must be instructed that only in-service events that have been verified by the AOJ, or any stressor related to fear of hostile military or terrorist activity, may be considered for the purpose of determining whether exposure to an in-service stressor has resulted in PTSD. The Veteran contends that his current respiratory disorders, to include right-sided pulmonary granuloma and COPD, are related to an in-service incurrence of pneumonia. He also contends that his respiratory symptoms may be related to diesel fuel exposure during service. The Veteran's service treatment records document multiple upper respiratory infections in addition to pneumonia, which was diagnosed in early 1970. He has reported ongoing symptoms, including shortness of breath, since service. In April 2013, a VA examiner opined that the pulmonary granuloma was less likely as not related to in-service pneumonia; however, the examiner did not discuss the etiology of the Veteran's COPD, nor did he address whether the Veteran's exposure to diesel fumes could have caused his current respiratory symptoms. In light of the above, the Board finds that an addendum opinion is necessary. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA provides a medical examination or obtains an opinion, it must ensure that the examination or opinion is adequate). Accordingly, the case is REMANDED for the following action: 1. Make reasonable attempts to verify the stressors cited by the Veteran. 2. Have the Veteran scheduled for a VA examination to determine the nature and likely etiology of any current psychiatric disorders, to include (but not limited to) PTSD, major depressive disorder, and anxiety. With respect to PTSD, the AOJ should provide the examiner with a summary of any verified in-service stressors and the examiner must be instructed that only these events, or any stressor related to fear of hostile military or terrorist activity, may be considered for the purpose of determining whether exposure to an in-service stressor has resulted in PTSD. The examiner should determine whether the diagnostic criteria to support a diagnosis of PTSD have been satisfied. If a PTSD diagnosis is deemed appropriate, the examiner should then comment upon the link between the current symptomatology and any verified in-service stressor, including the fear of hostile military or terrorist activity. The examiner is advised that the Veteran is competent to report symptoms, treatment, events, and injuries in service and that his assertions must be taken into account, along with the other evidence of record, in formulating the requested medical opinion. A complete rationale should accompany each opinion provided and should be based on examination findings, historical records, and medical principles. 3. The AOJ should return the Veteran's claims file to the examiner who completed the April 2013 opinion for an addendum opinion regarding the nature and likely etiology of the Veteran's current respiratory disorders, to include right-sided pulmonary granuloma and COPD. After reviewing the entire record, the examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's current respiratory disorders, to include right-sided granuloma and COPD, were incurred in service, to include as a result of diesel fume exposure. A complete rationale should accompany each opinion provided and should be based on examination findings, historical records, and medical principles. 4. After completing all indicated development, readjudicate the claims remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the RO should furnish to the Veteran and his representative a Supplemental Statement of the Case. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs