Citation Nr: 1804421 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 10-08 258 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD G. Johnson, Associate Counsel INTRODUCTION The Veteran had honorable active service in the United States Marine Corps from August 1967 to January 1969, with service in Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago Illinois. In April 2015, the Veteran testified at a Travel Board hearing before the undersigned. A transcript of that hearing has been associated with the claims file. The case was previously before the Board in June 2015 and June 2017. In June 2015, the Board remanded the case for a VA examination to determine the etiology of the Veteran's hepatitis C and to obtain relevant medical treatment records. In June 2017, the Board remanded the case for an addendum examination to determine the etiology of the Veteran's hepatitis C. There has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDING OF FACT Hepatitis C is not attributable to service. CONCLUSION OF LAW The criteria for service connection for hepatitis C are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A. VA has met the requirements of 38 U.S.C. §§ 5103 and 5103A. By correspondence dated in March 2002 and July 2011, VA notified the Veteran of the information and evidence needed to substantiate and complete the claim. The letters also notified the Veteran as to how VA assigns disability ratings and effective dates. VA has also satisfied the duty to assist. The claims folder contains service treatment records and VA treatment records. The Veteran underwent VA examinations in April 2003 and November 2015. VA obtained an addendum opinion in July 2017. The November 2015 examination and the July 2017 addendum opinion are adequate for purposes of this decision. Additional examination is not needed. In April 2015, VA afforded the Veteran the opportunity to give testimony before the Board. The Board hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant v. Shinseki, 23 Vet. App. 488, 496-497 (2010), the Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). As noted in the introduction, the claim has been remanded for further development. In reviewing the record, the Board finds substantial compliance with the remand directives as concerns the issues on appeal. See Stegall, supra. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran would serve no useful purpose. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). VA has satisfied the duty to inform and assist the Veteran, and the Board finds that any errors were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board adjudicating the claim. II. Service Connection for Hepatitis C The Veteran seeks service connection for hepatitis C, which he asserts is related to service, including via air gun injections, exposure to Agent Orange, or through contaminated water. At an April 2015 Board hearing, the Veteran testified that he contracted hepatitis C from air gun injections he received in service. The Veteran testified that he did not receive any blood transfusions in service, he never received a severe injury which would have exposed him to the blood of another individual, he did not engage in any common risk factors associated with the transmission of hepatitis C, he had no serious injuries after service which exposed him to the blood of another individual, he did not engage in casual, unprotected sex, and he did not engage in intravenous drug use. The Veteran denied using street drugs prior to his diagnosis of hepatitis C, and testified that he began using street drugs in 2010. The Veteran testified that he was diagnosed with hepatitis C in approximately 2004 to 2005, when he attempted to donate blood; prior to that date, he had been donating blood yearly. At a November 2015 Decision Review Officer (DRO) hearing regarding the Veteran's claim for entitlement to individual unemployability, the Veteran testified that records which indicated that the Veteran shared razors in service were inaccurate because the Veteran had a permanent no shaving chit while in service. The Veteran also testified that records, which indicated that the Veteran engaged in high-risk sexual activity, were inaccurate. In June 2003, the Veteran stated that he contracted hepatitis C from open sores due to a skin disease, and from using water that was contaminated from bush water. The Veteran also submitted a Risk Factors for Hepatitis Questionnaire, in which he denied ever using intravenous drugs, ever using intranasal cocaine, ever engaging in high-risk sexual activity, ever having hemodialysis, ever having any tattoos or body piercings, ever sharing toothbrushes or razor blades, ever having acupuncture with non-sterile needles, ever having a blood transfusion or ever having been a health care worker exposed to any contaminated blood or fluids. In August 2007, the Veteran asserted that his hepatitis C was possibly related to Agent Orange. In July 2017, the Veteran asserted that he did not snort cocaine until 2009, and denied that his sexual experiences were high risk. He stated that he had always used a prophylactic, except for with his spouse, who did not contract hepatitis C. He also asserted that studies showed that it was unlikely to get hepatitis C from sex. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 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). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an 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, 1166-1167 (Fed. Cir. 2004). Hepatitis C is not a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply to the claim. Walker v. Shinseki, 708 F.3d 1331, 1337-1338 (Fed. Cir. 2013). A VA "Fast Letter" issued in June 2004 (Veterans Benefits Administration (VBA) 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). In Fast Letter 04-13, it is noted that "occupational exposure to HCV [hepatitis C virus] may occur in the health care setting through accidental needle sticks. A veteran may have been exposed to HCV during the course of his duties as a military corpsman, a medical worker, or as a consequence of being a combat veteran." The Fast Letter indicates, in its Conclusion section, 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. See also VBA All Station Letter 211B (98-110) November 30, 1998; VBA Training Letter 211A (01-02) April 17, 2001 (major risk factors for hepatitis C include 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). VA has recognized that transmission of hepatitis C through jet injectors is "biologically plausible" and that it is essential that a report on which a determination of service connection is made include a discussion of all modes of transmission. VBA Fast Letter 04-13, June 29, 2004. In addition if a Veteran was exposed to an herbicide agent during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, certain enumerated diseases shall be service-connected, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The enumerated diseases, which are deemed to be associated with herbicide agent exposure, however, do not include hepatitis C. See 38 C.F.R. § 3.309(e). At the outset, the Board notes that the Veteran served in the United States Marine Corps from August 1967 to January 1969. The Veteran's military service records reflect that the Veteran served in the Republic of Vietnam during the Vietnam era. Therefore, exposure to Agent Orange in service is conceded. 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d). However, hepatitis C is not one of the enumerated diseases which are deemed to be associated with herbicide agent exposure. Therefore, the presumptive service connection provisions of 38 C.F.R. § 3.309(d) to not apply to the claim. Service treatment records are silent as to any complaints, clinical diagnosis or treatment of symptoms for hepatitis C. Service treatment records reflect that the Veteran received several inoculations in service. At the time of enlistment in July 1967, the Veteran reported he had gonorrhea in 1965, and March 1968 service treatment records reflect that the Veteran was once again diagnosed with gonorrhea. Service treatment records in May 1967 reflect a diagnosis of folliculitis barbae, and the treatment provider recommended that the Veteran shave every third day to treat his condition. In March 1968, a treatment provider noted that the Veteran's pseudofolliculitis barbae was successfully treated in the past with Magic Shave, but the Veteran complained that his face had become so sore and irritated from using Magic Shave, that it required frequent doses of cold water to quell the irritation. A treatment provider recommended that the Veteran be allowed to wear his beard because his skin could not tolerate the Magic Shave, which the treatment provider noted was very common in the Republic of Vietnam. In July 1968, the Veteran was given a permanent no shaving chit due to his pseudofolliculitis barbae. December 1968 personnel records reflect that the Physical Evaluation Board recommended that the Veteran be discharged from military service due to his pseudofolliculitis. Post-service treatment records reflect a diagnosis of hepatitis C from May 1997. A February 1998 private medical record reflects that the Veteran was initially diagnosed with hepatitis C when he attempted to donate blood. The Veteran reported to the treatment provider that he had donated blood multiple times for a number of years prior to this episode, and was not diagnosed with hepatitis C until he attempted to donate blood in 1998. The treatment provider noted that although the Veteran did not have any obvious risk factors for hepatitis C and had never used IV drugs or received a blood transfusion, the Veteran had engaged in unprotected sex and cocaine use earlier in life. The Veteran was afforded a VA examination in April 2003, which reflected a diagnosis of hepatitis C. The Veteran reported that he may have contracted hepatitis C while in service from using shared razors with others service members. The Veteran denied having an organ transplant, hemodialysis, tattoos, body piercings, engaging in IV drug use, occupational blood exposure, or higher sexual activity. The Veteran reported that he was rejected from giving blood in his thirties because he had tested positive for hepatitis C. A May 2004 private treatment record reflects that the Veteran reported that he had engaged in recreational intranasal cocaine use back in the 1970s. An October 2006 VA psychiatry treatment record reflects that the Veteran reported that he had an addictive personality regarding drugs and sex. He reported that he used to use cocaine, and had quit 10 years prior. A December 2009 posttraumatic stress disorder (PTSD) VA examination report reflects that the Veteran reported that he contracted hepatitis C from an inoculation gun, however, the Veteran also admitted that he had multiple sex partners, and that following separation from service in 1969 he had become involved in the sex trade. A January 2010 VA psychiatric examination reflected that the Veteran reported that he started using cocaine when he was approximately 32 or 33. An August 2010 VA psychiatry opinion reflects that the Veteran reported he had hepatitis C and stated that it could have been related to multiple sex partners or an inoculation gun. A December 2011 letter from a VA treatment provider, Dr. B.C., reflects a diagnosis of hepatitis C. The treatment provider noted that the Veteran had no history of transfusions, substance abuse, nasal drug use or injection drug use. The treatment provider noted that the Veteran had air gun injections in service and was shaved by military barbers. The treatment provider noted that air guns had been proven to spread viral hepatitis and that the Center for Disease Control and Prevention recommended against sharing razors because it spread hepatitis C. The treatment provider noted that there were no liver blood tests results in the Veteran's medical records and no tests for hepatitis C were available until 1989. However, the treatment provider noted that the absence of these tests did not preclude service connection for hepatitis C. The treatment provider opined that it was more likely than not that the Veteran's hepatitis C was acquired during military service. The treatment provider did not discuss May 2004 private treatment records, which reflect that the Veteran reported that he engaged in recreational intranasal cocaine use in the 1970s. The treatment provider also did not discuss the December 2009 PTSD VA examination which reflected that although the Veteran reported that he contracted hepatitis C from an inoculation gun, he also admitted that he had multiple sex partners, and that following separation from service in 1969, he had become involved in the sex trade. The Veteran was afforded a VA examination in November 2015, which reflected a diagnosis of hepatitis C from 1998. The Veteran reported that he had received a number of vaccinations with air gun injectors at the time of enlistment in military service in August 1967, and prior to his deployment to the Republic of Vietnam. The Veteran alleged that he most likely contracted hepatitis C from one of the air gun injections. The Veteran also reported that he had never been shaved by military barbers. However, he reported that he had episodes of open sores on his face and was exposed to contaminated water while on active duty in the Republic of Vietnam. The November 2015 examiner opined that he did not believe that it was at least as likely as not that the Veteran's hepatitis C condition was related to active military service or events therein, to include immunizations via air gun injector. The examiner noted that a review of available medical records indicated that the Veteran had a history of multiple risk factors for contracting hepatitis C including intranasal cocaine use, high risk unprotected sex, and immunization with air guns. The November 2015 examiner opined that it was not likely that the Veteran contracted hepatitis C during immunization via air gun injector. The examiner noted that the incubation period (the time of exposure to the hepatitis C virus to the time of becoming positive for hepatitis C antibodies) averaged somewhere between 6 to 10 weeks. The latency period was defined as the interval between exposure to the hepatitis C virus and the development of hepatitis C condition. A review of the evidence-based medical literature estimated the latency period for hepatitis C to be as long as 10 years. The examiner also acknowledged that a review of medical literature indicated that appropriate sterilization procedures for air gun injectors during the 1970s were not always included in the packaging with the air guns, and that it had been determined that it was plausible for an individual to contract the hepatitis C virus after being injected with an air gun during the 1970s. The examiner noted that the Veteran was inoculated with an air gun apparatus for immunizations at the time of enlistment in the military in August 1967 and prior to deployment to the Republic of Vietnam sometime prior to January 1969. The Veteran was diagnosed with hepatitis C in 1998, approximately 30 years after being inoculated with air guns. The examiner opined that it was more likely that the Veteran contracted hepatitis C virus through other risk factors such as unprotected, high-risk sex or intranasal cocaine use. An addendum opinion was obtained in July 2017. The examiner noted that the Veteran had a history of cocaine abuse and unprotected sex before entry into service, as well as a long history of cocaine abuse and unprotected sex with multiple partners and with prostitutes after service. The examiner noted that common risk factors for hepatitis C transmission were blood transfusion, IV drug abuse with contaminated needles and hemodialysis. Further, the examiner noted that sniffing cocaine or having multiple sexual partners were less common risk factors. The examiner noted that the Veteran's spouse continued to be hepatitis C negative, although the Veteran had had unprotected sex with his spouse. The examiner also noted that the Veteran served in the Republic of Vietnam for only two years, during which he had several episodes of unprotected sex with multiple partners, including prostitutes. The Veteran denied cocaine abuse during service, and after military service, the Veteran had a history of cocaine abuse by snorting and multiple sexual partners with unprotected sex. The examiner opined that even if unprotected sex and cocaine abuse were to be implicated in causing the Veteran's hepatitis C, the major exposure to risk factors were after service whereas during service of two years, the exposure was minimal. Further, the examiner noted that there was no convincing evidence of hepatitis C being acquired during service. The examiner pointed out that the Veteran had donated blood several times after service and was diagnosed with hepatitis C in 1998, after which time, he could no longer donate blood. Based on the evidence as outlined above, the Board finds that the criteria for service connection for hepatitis C have not been met. As previously discussed, service treatment records are silent as to any complaints, treatment or clinical diagnosis for hepatitis C. Although service treatment records reflect that the Veteran received inoculations during service, service treatment records and post service treatment records also reflect that the Veteran engaged in high-risk sexual activity prior to service, during service, and following service and post-service treatment records reflect that the Veteran had engaged in intranasal drug use from the 1970s. Specifically, service treatment records reflect that at the time of enlistment in July 1967, the Veteran reported he had gonorrhea in 1965, service treatment records also reflect that the Veteran was diagnosed with gonorrhea again in March 1968. Post service treatment records reflect that the Veteran reported that he engaged in high-risk sexual activity with prostitutes following separation from service in 1969, he reported in February 1998 that he had engaged in unprotected sex earlier in life, and in October 2006, he reported he had an addictive personality regarding sex. Further, February 1998 private treatment records also reflect that the Veteran had engaged in cocaine use earlier in life, May 2004 private treatment records reflect that the Veteran reported that he had engaged in recreational intranasal cocaine use back in the 1970s, and October 2006 VA psychiatry treatment records reflect that the Veteran reported that he had an addictive personality regarding drugs, that he had used cocaine and he had quit 10 years prior. In this case, the November 2015 VA examiner found that it was not likely that the Veteran contracted hepatitis C during immunizations via air gun injector, and the July 2017 examiner opined that there was no convincing evidence of hepatitis C being acquired during service. In contrast, Dr. B.C. provided an opinion that it was more likely that the Veteran's hepatitis C was acquired during military service. The November 2015 and the July 2017, VA examiners' opinions establish that the Veteran's hepatitis C is not related to service. The November 2015 and the July 2017 examiners' opinions are competent, credible and probative, and coupled with the other medical evidence of record including the service records, VA treatment records, and lay evidence, supports a conclusion that service connection for hepatitis C is not warranted. The Board notes that service connection is possible for disabilities first identified after service. 38 C.F.R. § 3.303(d). Therefore, the November 2015 and July 2017 examiners' findings that the Veteran was not diagnosed with hepatitis C until many years after service, is not enough, on its own, to deny the Veteran's claim. However, the examiners also set forth additional reasons for their conclusion as outlined herein. Although, the November 2015 examiner acknowledged the Veteran's report that he was inoculated with air guns in service, the November 2015 examiner was unable to conclude that the Veteran's current hepatitis C resulted from any in-service injury or event, including air gun injections. In determining the weight assigned to this evidence, the Board also looks at factors such as the health care provider's knowledge and skill in analyzing the medical data. See Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors: whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case; whether the medical expert provided a fully articulated opinion; and whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, supra. In this case, the opinion that the Veteran most likely acquired hepatitis C during military service by Dr. B.C. was based on an inaccurate recitation of the Veteran's history. As previously discussed, Dr. B.C. inaccurately stated that the Veteran had no history of intranasal drug use. However, May 2004 private treatment records reflect that the Veteran reported that he engaged in recreational intranasal cocaine use in the 1970s. In addition, the treatment provider did not discuss the Veteran's other risk factor of engaging in high risk sexual activities. In contrast, the November 2015 and July 2017 opinions indicating that it was less likely than not that the Veteran acquired hepatitis C in service was supported by a thorough review of the Veteran's personnel and treatment records. Therefore, the Board accords greater probative weight to the November 2015 and July 2017 VA medical opinions. The November 2015 and July 2017 examiners were aware of and considered the Veteran's medical history, lay statements from the Veteran, and articles about hepatitis C from the Veteran. The examiners also provided fully articulated opinions, and furnished reasoned analyses. In addition, the July 2017 opinion clarified whether it was more likely that the Veteran acquired hepatitis C through high-risk sexual activity after service versus high-risk sexual activity in service. The Board therefore attaches significant probative value to these opinions and the most probative value in this case, as they were well reasoned, detailed, and consistent with other evidence of record. See Prejean v. West, 13 Vet. App. 444, 448-449 (2000). The Board acknowledges the Veteran's own opinions regarding how he contracted hepatitis C. However, as a layperson in the field of medicine, the Veteran does not have the training or expertise to render a competent opinion on this issue, as this is a medical determination that is too complex to be made based on lay observation alone and the Board in fact found that medical clarification was needed. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Layno v. Brown, 6 Vet. App. 465, 469-471 (1994). In the instant case, the question of whether the Veteran contracted hepatitis C in service is not something that can be determined by mere observation. Nor is this question simple, as it requires medical training to understand the nature of hepatitis C and how it progresses, and to be able to relate the evidence in treatment records into an assessment of whether the Veteran contracted hepatitis C in service. Although the Board acknowledges the Veteran's work as director of a hepatitis association, and that the Veteran has researched hepatitis C, there is no evidence, which indicates that the Veteran has the required medical training to understand the nature of hepatitis C and how it progresses. Thus, the Veteran's opinion by itself cannot support his claim, and is outweighed by the findings to the contrary by the VA examiners, medical professionals who considered the pertinent evidence of record and found against such a relationship. See Layno, supra; see also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). As such, the Board finds that the Veteran's statements as to whether he contracted hepatitis C in service are not competent evidence on this issue. In adjudicating this claim, the Board must assess not only competency of the Veteran's statements, but also their credibility. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (Fed. Cir. 2006). The Board notes that in April 2015, the Veteran testified that he did not engage in any common risk factors associated with transmission of hepatitis C, including engaging in casual, unprotected sex, or intravenous drug use. The Veteran also denied using street drugs prior to his diagnosis of hepatitis C. In July 2017, the Veteran stated that he did not engage in intranasal cocaine use until 2009. However, February 1998 private treatment records reflect that the Veteran reported that he had engaged in unprotected sex and cocaine use earlier in life, and a May 2004 private treatment record reflects that he reported that he had engaged in recreational intranasal cocaine use back in the 1970s. Furthermore, October 2006 psychiatry treatment records reflect that the Veteran reported that he had an addictive personality regarding drugs and sex, and that he used to use cocaine, and quit 10 years prior. In addition, the Veteran has also testified that he never shaved in service due to a skin disease; however, service treatment records reflect that although the Veteran did have a skin disease, pseudofolliculitis barbae, the Veteran was instructed at various times during service to shave at least every three days. The Veteran also reported during an April 2003 VA examination that he may have contracted hepatitis while in service from using shared razors with others service members. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). In the instant case, the Board finds that the statements that the Veteran did not engage in high risk sexual activity or use intranasal cocaine prior to his diagnosis of hepatitis C lack credibility as they are inconsistent with the other and more contemporaneous evidence of record and, therefore, accords no probative weight to such contentions. In summary, the evidence of record weighs against a finding of a nexus between the Veteran's hepatitis C condition and his active military service. The Board notes that under the provisions of 38 U.S.C. §5107(b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. The preponderance of the evidence, however, is against the Veteran's claim, and thus, that doctrine is not applicable. The Veteran's claim of entitlement to service connection for hepatitis C is not warranted. ORDER Service connection for hepatitis C is denied. S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs