Citation Nr: 1729780	
Decision Date: 07/27/17    Archive Date: 08/04/17

DOCKET NO.  10-40 200	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1.  Entitlement to service connection for liver failure, to include status post liver transplant, to include as secondary to service-connected disabilities. 

2.  Entitlement to service connection for chronic hepatitis, to include hepatitis B and hepatitis C, to include as secondary to service-connected disabilities.

3.  Entitlement to service connection for diabetes mellitus, to include as secondary to service-connected disabilities. 

4.  Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus, to include as secondary to service-connected disabilities.

5.  Entitlement to service connection for an acquired psychiatric disorder, to include anxiety disorder, to include as secondary to service-connected disabilities. 

6.  Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as secondary to service-connected disabilities. 

7.  Entitlement to special monthly compensation based on the need for aid and attendance or housebound status.  


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

Catherine Cykowski, Counsel


INTRODUCTION

The Veteran had active duty service from December 1965 to April 1966.  He had additional periods of active duty for training and inactive duty for training until February 1990.  The Veteran died in April 2014.  The appellant is the Veteran's surviving spouse, who has been substituted for the Veteran in accordance with the provisions of 38 U.S.C.A. § 5121A.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2009 and June 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.  

In December 2012, the Veteran testified at a hearing before a VA Decision Review Officer.  A transcript of the hearing is of record.  A request for a Board hearing was withdrawn in November 2013.  

The Board previously remanded this matter for additional development in February 2014.  

This appeal 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 2016).

The issues of entitlement to service connection for diabetes mellitus, entitlement to service connection for hypertension, entitlement to service connection for an acquired psychiatric disorder, entitlement to service connection for chronic obstructive pulmonary disease, and entitlement to special monthly compensation based on the need for aid and attendance are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDING OF FACT

The evidence is in equipoise as to whether the Veteran's hepatitis C was incurred in active service.


CONCLUSION OF LAW

The criteria for service connection for hepatitis C have been met.  38 U.S.C.A. 
§§ 1110, 5107 (West 2016); 38 C .F.R. §§ 3.102, 3.303 (2016).



REASONS AND BASES FOR FINDING AND CONCLUSION

Service connection may be established under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes.  For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.

Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned.  The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 718 F.3d 1331(Fed. Cir. 2013).  Hepatitis is not listed as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply. 

Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service.  Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a).  The one-year presumption does not apply to this case as hepatitis is not listed in 38 C.F.R. 
§ 3.309(a).

Service connection may also be established for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  This has been interpreted as a three-element test based on nexus: (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 in or aggravated by service.  See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009).

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.  See M21-1, III.iv.4.l.2.e. 

Regarding immunization with a jet air gun injector, information in M21-1 indicates that despite the lack of any scientific evidence to document transmission of the Hepatitis C virus with air gun injectors, it is biologically possible.  A medical report linking hepatitis to air gun injectors must include a full discussion of all potential modes of transmission and a rationale as to why the examiner believes the air gun injector was the source for the hepatitis infection.  Id.

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  See 38 U.S.C.A. § 5107(b) (West 2016); 38 C.F.R. § 3.102 (2016).

Statements submitted by the Veteran in support of his claim reflect his assertion that he contracted hepatitis C due to air gun inoculations administered in service.  

The Veteran had active service from May 1968 to May 1969 and additional periods of reserve service.  Service treatment records are negative for any findings of hepatitis C.  Service treatment records show that the Veteran received several inoculations in service. 

Post-service VA medical records indicate that the Veteran was found to be positive for hepatitis C in 2002.

With regard to his risk factors, in an April 2009 statement the Veteran noted that he never had any tattoos.  In addition, VA medical records dated in October 2009 show that there was no recent history of blood transfusion.  Treatment records dated in September 2008 show that the Veteran's social history was negative for alcohol, smoking, or illicit drug abuse.  

Lay statements submitted by the Veteran document that he received airgun inoculations.  December 2008 buddy statements from fellow soldiers, A.V. and H.T., noted that they received injections when they were deploying to Iraq.  The statements noted that the airgun was not sanitized between injections.  

In November 2008, a hepatologist who treated the Veteran noted that the Veteran had a history of end stage liver disease and underwent a liver and kidney transplant in September 2008.  The physician noted that the Veteran denied any common risk factors such as high-risk sexual activity, blood transfusions, IV drug use, etc.  The Veteran reported that he received injections from an airgun injector which was not sanitized between injections.  The physician opined that, based upon the Veteran's history and lack of significant risk factors, hepatitis C is most likely attributable to vaccines during active duty.  

An April 2009 VA examination reflects that the Veteran was diagnosed with hepatitis C in 2002 and had a liver transplant in 2008.  The examiner considered the November 2008 opinion from the private physician.  However, the examiner opined that medical literature does not support the theory that airguns used for immunizations caused hepatitis in the Veteran.  

In February 2016, a VA physician opined that there is no evidence that service members have acquired bloodborne infections (such as hepatitis B, hepatitis C, or human immunodeficiency virus) as a result of the use of jet injectors by the Department of Defense.  The physician noted, however, that concerns about the safety of jet injectors prompted the Department of Defense to discontinue the routine use of jet injectors for vaccinations.  The physician noted that jet injectors that use the same nozzle tip to vaccinate more than one person have been used worldwide since 1952 to administer vaccines when many persons must be vaccinated in a short period of time.  The examiner noted that the jet injector developed and most widely used by the military has never been implicated in the transmission of bloodborne infections.  However, there was a concern that the use of jet injectors may pose a potential risk for translating bloodborne infections to vaccine recipients.  The examiner noted that there was an outbreak of hepatitis B caused by non-standard use of another type of jet injector in a civilian clinic.  Lab studies from Brazil and the United Kingdom suggest that bloodborne transmission theoretically could occur with the use of jet injectors.  The examiner noted that there have been no reported cases of cross-contamination of a veteran with the jet injectors used by the Department of Defense.  The examiner opined that, since there have been no confirmed cases of hepatitis C or other bloodborne pathogen due to the use of a jet injector, it is less likely than not that the Veteran had chronic hepatitis, liver disease, diabetes mellitus, hypertension, COPD, or an acquired psychiatric disorder as a result of an air gun vaccination.  

There is evidence for and against the claim.  The April 2009 medical opinion lacks probative value because the examiner did not cite medical literature in support of the conclusion.  The November 2008 opinion concluded that there were no other common risk factors for hepatitis C present in this case.  The 2016 VA examiner found that service incurrence was unlikely, based on the lack of documented cases of cross-contamination by jet injectors.  The November 2008 and February 2016 medical opinions were both based on the accurate facts and were supported by detailed analysis.  The evidence of a medical nexus to service is at least in equipoise in this case.  Accordingly, reasonable doubt is resolved in the appellant's favor, and service connection for hepatitis C is granted.  


ORDER

Service connection for hepatitis C is granted.


REMAND

In light of the grant of service connection for hepatitis C in the decision above, additional development is warranted.  On remand, the AOJ should obtain a medical opinion addressing whether liver failure, diabetes mellitus, hypertension, and chronic obstructive pulmonary disease were either caused or aggravated by hepatitis C.  A February 2016 mental health opinion links a diagnosis of unspecified depressive disorder to liver failure.  Accordingly, action on the claim for service connection for depressive disorder is deferred.  As resolution of the service claims discussed above may have an impact on the appellant's claims for special monthly compensation, the issues are inextricably intertwined.  Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined " when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). 

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Return the claims file to the physician who provided the February 2016 medical opinion for liver disease, diabetes mellitus, hypertension, and COPD.  If the examiner is not available, obtain an opinion from another qualified physician.  The claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated.  After reviewing the claims file, the examiner should address the following questions.

a) Whether liver failure was at least as likely as not proximately caused by, or due to, hepatitis C.

 b) Whether liver failure was aggravated (worsened by) hepatitis C.

c) Whether diabetes mellitus was at least as likely as not proximately caused by, or due to, hepatitis C.

d) Whether diabetes mellitus was aggravated (worsened by) hepatitis C.  

e) Whether hypertension was at least as likely as not proximately caused by, or due to, hepatitis C.

f) Whether hypertension was aggravated (worsened by) hepatitis C.

g) Whether COPD was at least as likely as not proximately caused by, or due to, hepatitis C.

h) Whether COPD was aggravated (worsened by) COPD.

i) The examiner should provide a complete rationale for the opinions.  If the examiner is unable to provide an opinion without resorting to speculation, the examiner should explain why it is not possible to provide an opinion.

2.  Readjudicate the claims for service connection for liver failure, diabetes mellitus, hypertension, COPD and SMC.  If the claims remain denied, provide a supplemental statement of the case to the appellant and her representative, and allow them an opportunity to respond.  

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim 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 2016).



______________________________________________
BRADLEY W. HENNINGS 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs