Citation Nr: 1648273	
Decision Date: 12/28/16    Archive Date: 01/06/17

DOCKET NO.  07-35 691	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUE

Entitlement to service connection for hepatitis C.


REPRESENTATION

Veteran represented by:	Michael R. Viterna, Attorney


ATTORNEY FOR THE BOARD

A. MacDonald, Counsel







INTRODUCTION

The Veteran had active service with the Army from July 1978 to August 1978 and from October 1979 to February 1980. Additionally, he served in the Indiana National Guard from 1978 to 1987.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, which denied the Veteran's claim.

In a November 2010 decision, the Board denied service connection for hepatitis C. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2011 Order, the Court granted a Joint Motion for Remand, vacated the Board's decision, and remanded this matter for proceedings consistent with the Motion. In October 2011 and November 2014 the Board again remanded this issue for further development.

In November 2015, the Board referred this case for a VHA expert medical opinion. Such an opinion was provided in January 2016. In June 2016, the Board referred this case for a VHA expert medical opinion from an infectious disease specialist. Such an opinion was provided in September 2016. The Veteran and his representative were notified of the respective opinions and given adequate time to respond.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (6). 38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDING OF FACT

The Veteran's currently diagnosed hepatitis C was as likely as not caused by in-service immunization by air gun.


CONCLUSION OF LAW

Affording all benefit of the doubt to the Veteran, the criteria for service connection for hepatitis C have been met. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran is seeking service connection for hepatitis C. Establishing service connection generally requires competent evidence of (1) a current disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also 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 will be discussed below, after affording all benefit of the doubt to the Veteran, the evidence reflects his currently diagnosed hepatitis C as likely as not was contracted during his active duty service. Accordingly, the elements of service connection have been met, and the Veteran's appeal is granted.

The post-service medical records reflect the Veteran was diagnosed with hepatitis C in approximately 2001. However, Hepatitis C may be first detected many years after transmission.  See VA Training Letter 98-110 (November 30, 1998).  Additionally, VA recognizes the following usual risk factors for contracting hepatitis C: organ transplant before 1992, transfusions of blood or blood products before 1992, hemodialysis, accidental exposure to blood, intravenous or intranasal cocaine use, high risk sexual activity, and other direct percutaneous (through the skin) exposure to blood such as tattooing, body piercing, acupuncture with non-sterile needles, and shared toothbrushes or shaving razors.

Throughout the period on appeal, the Veteran has consistently asserted that he did not have any of the usual risk factors for hepatitis C. A March 2003 letter from Dr. P.Y.K. notes the Veteran had "a history of brief intranasal cocaine use many years ago." However, on several occasions, including his November 2007 substantive appeal and a written statement dated August 2010, the Veteran specifically denied ever using cocaine, including intranasal. Additionally, several other physicians noted the Veteran did not have any usual risk factor for hepatitis C, including drug use. See e.g. January 2006 record from Dr. B.A.R. In a subsequent May 2007 statement, Dr. P.Y.K. himself stated the Veteran did not have any usual risk factor for hepatitis C, including "snorting cocaine." Dr. P.Y.K. did not provide any explanation for his 2003 letter noting the Veteran's brief history of intranasal cocaine use in his 2007 statement asserting the Veteran had no usual risk factors.

Therefore, the claims file contains only one suggestion the Veteran had a history of intranasal drug use. The Veteran specifically denied this history of several occasions, and subsequent physicians did not note a similar history. Furthermore, the same physician later stated the Veteran did not have any history of intranasal drug use. Finally, VA regulations provide if the evidence is in very least in relative equipoise, reasonable doubt will be resolved in the Veteran's favor. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Accordingly, the Board finds the Veteran did not have any of the usual risk factors of hepatitis C, including intranasal drug use.

Several physicians noted the Veteran's only hepatitis C risk factor was multiple vaccinations during his period of active duty service. See e.g. January 2006 letter from Dr. B.A.R. and May 2007 letter from Dr. P.Y.K. In a January 2006 written statement, the Veteran described his in-service immunization, "When they gave us our shots, they used air guns. They never wiped the ends of the guns off." The Veteran's contention that he received immunization via air gun during service is supposed by his service treatment records, which confirm multiple vaccinations during his period of active duty service. See service vaccination records from July and August 1978.

A VA 'Fast Letter' provides, "The large majority of HCV [hepatitis C virus] infections can be accounted for by known modes of transmission . . . Despite the lack of any scientific evidence to document transmission of HCV with airgun injectors, it is biologically plausible." VBA Fast Letter 04-13 (June 29, 2004).

The claims file includes statements from several physicians' opining that the Veteran's current hepatitis C was likely due to his in-service immunization by air gun. For example, in several written statements Dr. B.A.R. opined the Veteran "probably" contracted hepatitis C during his active duty service. In a December 2006 written statement, Dr. B.A.R. explained that the Veteran's liver cirrhosis was consistent with patients who contracted the hepatitis C virus at least twenty years earlier. In a May 2007 statement, Dr. P.Y.K. stated it was "certainly possible" the Veteran's hepatitis C was contracted during his active duty service. The Veteran and his representative also submitted abstracts and summaries of several medical articles suggesting a possible connection between use of an air gun for immunization and the hepatitis C virus.

In July 2010, the Veteran was provided with a VA examination. This examiner opined that the "authoritative literature," including from NIH, the Mayo Clinic, and the Cleveland Clinic, "reveal there is no evidence linking air gun injections to the transference of [hepatitis C] virus." This examiner continued to suggest the Veteran's use of intranasal cocaine was a more likely cause of his hepatitis C. However, as discussed above, the Board has determined the Veteran did not use intranasal cocaine. Accordingly, this examiner's report, based on an inaccurate factual basis, is limited in probative value.

In September 2016, an expert opinion was obtained from an infectious disease specialist. This specialist opined, "In conclusion, it seems that there is a casual association between using air guns for vaccinations and hepatitis C and it could be at least as likely as not (i.e., 50 percent or more probable) that the patient's hepatitis C is related to in-service inoculations/vaccinations by way of air guns." In reaching this opinion, the specialist referenced research from CDC recommendations and the National VA Hepatitis C office, as well as the Veteran's military and medical history. Therefore, this expert's report provides highly probative evidence in support of the Veteran's appeal. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993).
Based on all the foregoing, and affording all benefit of doubt to the Veteran, the evidence does not establish the Veteran had any of the usual risk factors of hepatitis C, including use of intranasal drugs. Instead, the evidence reflects it is as likely as not his current hepatitis C was contradicted by in-service immunization via air guns. Accordingly, entitlement to service connection for hepatitis C is granted.

The Board notes the Veteran also asserted other theories of entitlement to service connection, and presented extensive evidence and legal argument to support these theories. Notably, he asserted his hepatitis C was due to his unsanitary in-service dental work, including the extraction of four teeth, and that his in-service symptoms of an upper respiratory infection were an early manifestation of his hepatitis C. However, because his claim is granted in full, the Board does not need to further address or discuss these theories of entitlement.

Finally, because the Veteran's claim is granted in full, any potential failure of the VA in fulfilling the various duties to notify and assist was harmless error, and no further discussion is needed.  


ORDER

Entitlement to service connection for hepatitis C is granted, subject to the laws and regulations governing the award of monetary benefits.



____________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs