Citation Nr: 1716154 Decision Date: 05/12/17 Archive Date: 05/22/17 DOCKET NO. 15-29 144 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for hepatitis C. 2. Entitlement to service connection for hepatocellular carcinoma, claimed as secondary to hepatitis C. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Kate Sosna, Associate Counsel INTRODUCTION The Veteran had active duty service from February 1978 to August 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In April 2016, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. During and following the hearing the Veteran submitted additional evidence in support of her claims and waived the right to have the evidence initially considered by the RO. 38 C.F.R. § 20.1304(c) (2016). Therefore, the Board may properly consider such newly received evidence. After the hearing, it was determined that further medical inquiry was necessary to decide the claims. As such, the Board sought a medical expert opinion from the Veterans Health Administration (VHA) pursuant to VHA Directive 1602-01 in June 2016. Such opinion was rendered in March 2017. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems, and has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. Resolving all doubt in the Veteran's favor, her hepatitis C is related to her military service. 2. Resolving all doubt in the Veteran's favor, her currently diagnosed hepatocellular carcinoma is proximately due to her service-connected hepatitis C. CONCLUSIONS OF LAW 1. The criteria for service connection for hepatis C have been met. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016). 2. Hepatocellular carcinoma is proximately due to a service-connected disability. 38 U.S.C.A. §§ 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As the Board's decision to grant service connection for hepatitis C and hepatocellular carcinoma herein constitutes a complete grant of the benefits sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the implementing regulations. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310 (b). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as malignant tumors, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In regard to service connection claims pertaining to hepatitis C, there are recognized risk factors for contracting hepatitis C that should be taken into consideration when developing and adjudicating a claim of service connection. The medically recognized risk factors are: transfusion of blood or blood products before 1992; organ transplant before 1992; hemodialysis; tattoos; body piercing; intravenous drug use (due to shared instruments); high-risk sexual activity (risk is relatively low); intranasal cocaine use (due to shared instruments); accidental exposure to blood products in health care workers or combat medic or corpsman by percutaneous (through the skin) exposure or on mucous membrane; and other direct percutaneous exposure to blood such as by acupuncture with non-sterile needles or by the sharing of toothbrushes or shaving razors. Hepatitis C arising from air gun immunizations has not been documented; however, it is biologically possible. See VBA Manual M21-1, III.iv.4.I.2.e. 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran seeks service connection for hepatitis C and hepatocellular carcinoma. As an initial matter, the Board finds that the competent evidence of record confirms that the Veteran was diagnosed with hepatitis C in approximately 2007 and hepatocellular carcinoma in 2014. A. Hepatitis C The Veteran contends that she contracted hepatitis C when she received vaccinations via an air gun during service. At the April 2016 Board hearing, she advanced other theories of how she contracted the disease and suggested that her in-service treatment for gastrointestinal distress could have been an early manifestation. As will be discussed, a VA infectious disease doctor has positively linked the Veteran's hepatitis C with the reported air gun injections. Accordingly, the Board will not discuss the Veteran's other theories of entitlement. The available evidence shows that the Veteran received various inoculations during service in February and May 1978. Throughout the appeal, she has competently and credibly reported that these vaccinations were administered via an air gun injector which she described as looking "...like something from Star Trek." She credibly denied other risk factors for contracting hepatitis C, noting that her tattoo was applied with sterile equipment and her ex-husband, who was a drug user, did not have hepatitis C. As the Veteran had not yet been afforded an examination or opinion as to the etiology of her hepatitis C, the Board sought an expert medical opinion from a VHA infectious disease specialist in June 2016. Specifically, the Board requested an opinion as to whether it is at least as likely as not that the Veteran's hepatitis C had its onset during or was otherwise related to her service, to include her reported in-service exposure to an unsterilized air gun device used to administer vaccinations. In March 2017, after reviewing the Veteran's medical records and performing independent research regarding the military's use of air guns, the specialist opined that it was at least as likely as not that the Veteran's hepatitis C is related to the air gun inoculations she received in service. In support thereof, the examiner acknowledged that infection via air gun is a rare and unusual mode of transmission, but that prior to the early 1990's, the danger of transmitting hepatitis C was largely unknown and so precautions against spreading it were not taken. The specialist further noted that, based on her research, the military routinely used these types of injectors at that time. The specialist also noted a review of several medical studies related to the use of the air guns. One study found that 32.6 % of mice that received vaccinations via air guns contracted a virus, proving that the devices can transmit blood borne viral pathogens. Even though the study was performed on mice, the authors observed "that after inoculation a small amount of blood can frequently be seen at the puncture site sometime after removing the head of the jet injector...." The next study documented the spread of hepatitis B through patients at a weight loss clinic where jet injectors (apparently similar to air gun injectors) were used and most of the patients did not otherwise have risk factors for contracting hepatitis B; the authors suggest that the injectors were the source of the infection. The specialist noted that, while hepatitis C is less transmittable than hepatitis B, "it is certainly plausible that hepatitis C could also have been transmitted in such a manner as both viruses share a common bloodborne route of transmission, and thus it is certainly plausible that [hepatitis C] could be transmitted by similar mechanisms." Ultimately, the authors of the hepatitis B study concluded that, given the possibility of transmission of infectious materials, the air guns should not be used. Finally, the examiner noted that The National Hepatitis C Program Office has also acknowledged the possible relationship between hepatitis C and jet injectors and recommended screenings for any veteran who was inoculated in this fashion. In summation, the specialist noted that hepatitis C had not been identified at the time of the Veteran's service but was very likely in existence and, in this Veteran's case, it is at least as likely as not that her exposure to jet injections was her greatest risk factor for contracting hepatitis C. In addition to this opinion, the Veteran has also submitted an undated letter from a VA physician who noted that, while it was unclear how she acquired hepatitis C, it was plausible that she could have acquired hepatitis C from air gun injectors used during her service. The Board finds that the March 2017 opinion provided by the VA infectious disease specialist is highly probative regarding a connection between the Veteran's hepatitis C and her military service. In this regard, the opinion reflects consideration of all relevant facts and the examiner provided a detailed rationale for the conclusions reached. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Therefore, resolving all doubt in the Veteran's favor, the Board finds that her hepatitis C is directly related to her military service. Consequently, service connection for hepatitis C is warranted. B. Hepatocellular Carcinoma The Veteran contends that her hepatocellular carcinoma was caused by her hepatitis C. In conjunction with the Board's June 2016 request for an expert opinion from a VA infectious disease doctor regarding the likelihood the Veteran's hepatitis C was related to her military service, the Board also requested an opinion as to whether it is at least as likely as not that her hepatocellular carcinoma was caused or aggravated by her hepatitis C. Notably, by virtue of this decision, the Veteran has been awarded service connection for hepatitis C, a prerequisite for secondary service connection. After reviewing the Veteran's medical records and determining that it was at least as likely as not that her hepatitis C was related to service, the March 2017 specialist also opined that it is at least as likely as not that her hepatocellular carcinoma was caused by her hepatitis C. In support thereof, the examiner noted that highly regarded studies show strong associations between the presence of hepatitis C and the development of hepatocellular carcinoma. In fact, studies have shown that, even in the absence of cirrhosis, hepatitis C is a risk factor for developing hepatocellular carcinoma. The examiner found that the Veteran did not have any identifiable risk factors for hepatocellular carcinoma aside from her hepatitis C and thus opined that it was at least as likely as not that hepatitis C caused her cancer. Notably, the undated letter from a VA physician also noted that the Veteran's cancer has been associated with chronic hepatitis C. The Board finds that the March 2017 opinion provided by the VA infectious disease specialist is highly probative regarding a connection between the Veteran's hepatocellular carcinoma and her service-connected hepatitis C. Id. Therefore, resolving all doubt in the Veteran's favor, the Board finds that the Veteran's hepatocellular carcinoma was caused by her service-connected hepatitis C. Consequently, service connection for hepatocellular carcinoma is warranted. ORDER Service connection for hepatitis C is granted. Service connection for hepatocellular carcinoma is granted. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs