Citation Nr: 18151853 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 13-19 276 DATE: November 20, 2018 ORDER Entitlement to service connection for hepatitis C is granted. FINDING OF FACT 1. The Veteran acquired tattoos, engaged in high-risk sexual behavior, and had vaccinations via a jet injector during active service. 2. The competent and credible evidence of record is in equipoise on whether hepatitis C is related to the in-service tattoos, high-risk sexual behavior, and vaccinations via a jet injector. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran’s favor, the criteria for service connection for hepatitis C have been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1971 to May 1973. This matter is on appeal from a July 2012 rating decision and was previously remanded by the Board of Veterans’ Appeals (Board) in January 2017. Entitlement to service connection for hepatitis C is granted. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 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 incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of 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). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Veteran contends that his hepatitis C was incurred in or aggravated by his active service. Specifically, he states that he contracted hepatitis C while getting inoculation shots during entry to the Army and before being transferred to South Korea. See September 2011 VA Form 21-4138 (Veteran's Statement in Support of Claim). The Veteran reports that while getting inoculated, he witnessed others with blood running down their arms from the shots and that there were no steps to change or clean the needles. See May 2012 VA Form 21-4138 (Veteran's Statement in Support of Claim) and VA Form 9 (Appeal to Board of Veterans’ Appeals). As discussed below, his service treatment records confirm that the Veteran also engaged in high-risk sexual behavior in service, and obtained tattoos. The Board notes that several risk factors for hepatitis have been recognized by VA. These include: transfusion of blood or blood product before 1992, organ transplant before 1992, hemodialysis, tattoos, body piercing, intravenous drug use (from shared instruments), high-risk sexual activity, intranasal cocaine (from shared instruments), accidental exposure to blood products as a health care worker, combat medic, or corpsman by percutaneous (through the skin) exposure or mucous membrane exposure, and other direct percutaneous exposure to blood such as by acupuncture with non-sterile needles or the sharing of toothbrushes or shaving razors. The Veteran’s service treatment records include May 1971 enlistment reports of medical history and examination that were negative for any complaints, treatment, or diagnoses related to hepatitis C. On May 1971 report of medical history, the Veteran specifically denied ever having jaundice, VD-syphilis, gonorrhea etc. Also, no tattoos were identified at the time of service entrance. The records confirmed that he received several immunizations in July 1971, namely smallpox, triple typhoid, tetanus toxoid, cholera, polio, and plague vaccines. He also underwent sensitivity tests (Tuberculin, etc.) in May 1973. The records included diagnoses of chancroid and multiple findings of gram negative intracellular diplococci. See service treatment records dated in June 1972, August 1972, September 1972, and February 1973. On a March 1972 dental service record, the Veteran circled “YES” when asked, “Have you ever had yellow jaundice or hepatitis?” The May 1973 separation examination, noted bilateral upper arm tattoos and was negative for complaints, treatment, or diagnoses relating to hepatitis. Post-service private treatment records showed testing in September 2003 indicating that the Veteran had hepatitis C, which was confirmed by further testing in November 2003.When the Veteran was initially seen for a gastroenterology consult in May 2005 at the Albany VA Medical Center (VAMC), the Veteran stated that he probably was infected with hepatitis C in the 1970s when he experimented with IV drugs and two of the friends with whom he shared needles with died of liver disease. He also claimed that he received a tattoo on his right arm in the 1970’s. He reported that he smoked about a half a pack a day and was a heavy drinker until the spring of 2005. He stopped drinking completely after being diagnosed with hepatitis C. He had not used any drugs for many years. The provider noted that assuming that the Veteran has had chronic hepatitis for about 30 years and assuming that his last liver biopsy did not show any scarring, he probably may still have a progressive disease. In December 2016, the Veteran’s representative submitted information printed from VA’s website regarding hepatitis C and military related blood exposures, risk factors, and VA care. The print out stated that “Although there has never been a documented case of hepatitis C transmitted by a jet injector, it is biologically possible.” The evidence shows that the Veteran had three risk factors for contracting hepatitis C in service—obtaining tattoos, high-risk sexual activity, and inoculations. It is unclear when in the 1970s the Veteran used IV drugs, but that too is a risk factor. In light of the complexity of the lay and medical evidence, in August 2018, the Board sought a comprehensive opinion from an infectious disease specialist to address the Veteran's contentions. In October 2018, Dr. J.S.H., the Chief of the Division of Infectious Diseases, noted the Veteran’s history of “jaundice or hepatitis” in March 1972 and reported that several viruses besides hepatitis C could cause jaundice, including hepatitis A or B. The expert further noted that hepatitis C was asymptomatic in the majority of patients and only 20 to 30 percent of exposed patients developed symptoms including jaundice, therefore, the history of “jaundice or hepatitis’ may be wholly unrelated to the Veteran’s acquisition of hepatitis C. That stated, Dr. J.S.H. did not rule out in-service onset. The expert recognized that the Veteran had several documented exposures that placed him at risk for infection to hepatitis C at varying degrees, and offered pertinent information helpful in deciding this claim. First, the expert observed that the Veteran was noted to have received multiple vaccinations via a jet injector in 1971. As per the National Hepatitis C Program Office in February 2016, this practice carried a theoretical, biologically plausible risk of hepatitis C transmission. Second, the Veteran was treated on multiple occasions for sexually transmitted diseases (STDs), including chancroid and GNID (Gonorrhea), while on active duty in 1972 and 1973. The expert stated that based on the acquisition of STDs, the Veteran participated in high-risk sexual behavior, which was a known source of hepatitis C in up to 15% of patients with hepatitis C. Finally, on physical examination at the end of active duty in May 1973, the Veteran was noted to have tattoos on both upper extremities. The expert added that tattooing was considered to have the potential for hepatitis C transmission, but the risk is estimated to be low. The expert noted that the Veteran admitted to intravenous drug use in the 1970’s (it was not specific whether this occurred during active duty or thereafter) and that two of the friends with who he shared needles had died of liver disease. The expert reported that intravenous drug use was the behavior associated with the highest risk of hepatitis C acquisition. The expert stated that it seemed more likely than not that the Veteran acquired his hepatitis C via intravenous drug use in the 1970s, however, the expert added that the Veteran he had other possible exposures that occurred both during and after active duty that were either theoretical or proven sources of hepatitis C infection (vaccinations via a jet injector, high-risk sexual behavior, obtaining tattoos, and cocaine use) even if the rate of transmission was at a lower rate. Notwithstanding the Veteran’s participation in intravenous drug use at some time in the 1970s, as noted above, the Board finds clear evidence of hepatitis C risk factors in service. The Veteran did not have a tattoo prior to active service and acquired tattoos during service. See May 1971 entrance and May 1973 separation reports of medical examinations. Additionally, the Veteran engaged in high-risk sexual activity as evidenced by treatment on multiple occasion occasions for STDs. See service treatment records dated in June 1972, August 1972, September 1972, and February 1973. The Veteran also claimed, and his service treatment records supported his contentions, that he received several vaccinations. The Board finds that the weight of the evidence is in relative equipoise as to whether the Veteran’s hepatitis C is related to his in-service risk factors (in-service tattoo, high-risk sexual activity, and vaccinations via jet injector) or a nonservice related cause. Notably, in an August 2017 opinion, a VA examiner recognized the high probability of drug use as a factor in contracting hepatitis C, but also indicated that it was probable that the Veteran’s sexual activity transmitted the virus, and that tattoo procedures, even thought to be sterile, could also be potential transmission causes. Additionally, although the expert in October 2018 indicated that the vaccinations via a jet injector, high-risk sexual behavior, and obtaining tattoos, were at a lower rate of transmission of hepatitis C, the expert reported that they still were either theoretical or proven sources of hepatitis C infections. Overall, neither the VA examiner nor the expert ruled out the high-risk sexual behavior, vaccinations via a jet injector, and obtaining tattoos as risk factors for the Veteran’s hepatitis C. Additionally, service treatment records confirm that the Veteran did indicate “YES” when asked about having jaundice or hepatitis. In consideration of the Veteran’s known risk factors associated with hepatitis C, and the particular facts of this case, the Board finds that the evidence both for a and against the claim is in equipoise. The Board resolves all doubt in the Veteran’s favor and finds that service connection for hepatitis C is warranted. 38 U.S.C.§ 5107(b); 38 C.F.R. § 3.102. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Crohe, Counsel