Citation Nr: 18114471 Decision Date: 06/27/18 Archive Date: 06/27/18 DOCKET NO. 08-33 469 DATE: Entitlement to service connection for hepatitis C. June 27, 2018 ORDER Entitlement to service connection for hepatitis C is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, his hepatitis C is at least as likely as not related to his service. CONCLUSION OF LAW The criteria for service connection for hepatitis C are met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a).   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from September 1974 to July 1978. The Veteran testified before the undersigned Veterans Law Judge at a December 2011 travel Board hearing. A transcript of that hearing has been associated with the claims file. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Commonwealth of Puerto Rico. Jurisdiction of this matter has subsequently transferred to the RO in Montgomery, Alabama. This matter was last before the Board in October 2016, at which time it denied service connection for hepatitis C on the merits. In October 2017, the United States Court of Appeals for Veterans Claims (Court), pursuant to a Joint Motion for Remand (JMR), vacated the Board’s decision and remanded the matter for further adjudication consistent with its order. 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 C.F.R. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In this case, as to the claim of entitlement to service connection for hepatitis C, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Entitlement to service connection for hepatitis C. The Veteran asserts that his hepatitis C was contracted in service due to inoculation from a jet injector, or, alternatively, exposure to contaminated barber’s razors, dental equipment, or barber’s shears. As discussed above, the Court granted a JMR vacating the Board’s October 2016 order denying service connection. Specifically, the Court found that “[t]he Board’s statement of reasons or bases is inadequate because it did not include a full discussion of all possible modes of transmission that were reasonably raised by the record.” Specifically, it was noted that the October 2016 Board decision did not address the Veteran’s allegations of shared razor usage and possible contaminated dental equipment. Furthermore, the Court addressed the Board’s emphasis on the passage of time between the claimed mode of infection and date of diagnosis by noting that, “as [the Veteran’s] private physicians observed, there was no antibody test for HCV before 1990, and the disease has a lengthy latency period.” The Court further noted that “[s]uch a lengthy latency period for HCV is also acknowledged in the M21-1 manual.” See, M21-1, III.iv.4.I.2.a. The Board concludes that the Veteran’s diagnosed hepatitis C began in service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The Board is required to assess the credibility and probative weight of all relevant evidence, and may consider factors such as facial plausibility, bias, self-interest, and consistency with other evidence of record. McClain v. Nicholson, 21 Vet. App. 319, 325 (2007) (Greene, J., concurring in part and dissenting in part) (noting that the Board has the duty to assess credibility and probative weight of evidence); see, Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (affirming that the Board retains discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc.). The Court has also held that contemporaneous records are more probative than history as reported by a Veteran. See, Curry v. Brown, 7 Vet. App. 59, 68 (1994). An October 1981 blood test for Owens Corning indicates the veteran’s serum glutamic oxaloacetic transaminase (SGOT), a liver enzyme, was elevated. A March 1983 blood test for Owens Corning indicates the Veteran’s glutamic oxaloacetic transaminase (GOT) was elevated. A December 1984 Owens Corning Periodic Health Examination notes that in 1981 the Veteran experienced pain in his side, below the rib cage and in 1982 experienced a prostate infection. Blood work was also performed in connection with this health examination and noted that GOT was elevated. A submitted September 1990 article from Medline discussed an outbreak of Hepatitis C from January 1984 through November 1985 at a weight reduction clinic where a jet injector was used. It was noted that "[s]topping the use of the jet injectors on July 2, 1985, at clinic 1, was associated with the termination of this outbreak. This investigation demonstrated that jet injectors can become contaminated with hepatitis B virus and then may be vehicles for its transmission." In a submitted December 1997 letter, Ped-O-Jet informed the Defense Personnel Support Center of a product recall involving their jet injectors and advised them against any further use due to a study that discussed the potential risk of blood borne disease transmission with the use of multiple-use jet injectors. An August 2005 private treatment record notes the Veteran was diagnosed with hepatitis C after it was revealed in a blood test for cholesterol. In an April 2007 lay statement, the Veteran asserted having hepatitis C since his service and listed the following in-service risk factors for exposure to Hepatitis C: airgun vaccinations; barber shears; razors; and dental equipment. The Veteran denied having any tattoos, use of drugs, or high risk sexual activity. The Veteran reported suffering from continual bloating, gas, diarrhea and irregular bowel movements over the years. The Board notes that the Veteran is competent to report on whether he has engaged in certain activities that are considered risk factors for hepatitis C, as well as report his gastrointestinal symptoms. However, while lay persons are competent to provide opinions on some medical issues, see, Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, whether the Veteran’s hepatitis C is a result of service, falls outside the realm of common knowledge of a lay person as this is beyond the capability of a lay person to observe. See, Jandreau, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (affirming that the Board retains discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence). Consequently, the Veteran's lay assertions are not competent evidence regarding whether his hepatitis C was due to service. In an October 2011 private medical opinion, Dr. S. P. states that the Veteran's Hepatitis C is at least as likely as not related to his military service, noting that medical records form 1981 show elevated SGOT. The doctor noted that SGOT is released into the blood when the liver is damaged and that a blood test for Hepatitis C was not available until 1990. The doctor stated that "[a] mode of infection would be contact with contaminated blood on an air gun used for shots" and noted that the Veteran was cut and bled when he received his airgun vaccines, further noting a puncture scar on his arm. Finally, the doctor noted that Hepatitis C can reside in a person for decades until a diagnosis is made and that many people have no symptoms and feel well. Here, while the doctor did provide a positive nexus opinion with a rationale, the Board notes that the doctor did not discuss whether the Veteran had any other risk factors for developing hepatitis C. As such, the Board finds this opinion to be of limited probative value. The Veteran testified at the December 2011 hearing that he has never gotten a tattoo and denied having any blood transfusions, though he did acknowledge having hernia repair surgery in 1995. The Veteran denied any drug use. The Veteran stated that medical records from Owens Corning in 1981 shows elevated SGOT levels, indicating something was wrong. The Veteran stated that the maker of the airgun sent a letter to the military advising them to stop using the devices as they can become contaminated with no adequate means of sterilization. The Veteran was afforded a VA Hepatitis examination in March 2012. It was noted that the Veteran was diagnosed with Hepatitis C in August 2005. It was noted the Veteran had an evaluation for left side pain in 1981 which revealed an elevated SGOT (a liver enzyme). The examiner stated that the “Veteran never had clinical Hepatitis during his military service or after to allow us to determine when he acquired Hepatitis C”, noting this is the case with a large number of patients, including Veterans, with Hepatitis C. The examiner then noted the Veteran was successfully treated for Hepatitis C with no virus found after treatment. The Board notes that the examiner did not render an opinion and, as such, the examination is inadequate. An addendum to the March 2012 VA opinion was obtained in December 2012. The examiner opined that the Veteran’s Hepatitis C was less likely than not related to the Veteran’s service, with the rationale that there was no evidence of Hepatitis during military service or within a year of discharge from the military. The examiner noted the Veteran was diagnosed in August 2005 and was successfully treated with no active disease. Finally, the examiner noted that “there is no scientific evidence to support the theory of transmission of Hepatitis C by air jet injection”, and concluded that the note from Dr. M. on May 26, 2006 lists high risk behavior on the Veteran’s problem list. The Board notes that the May 2006 private treatment record from Dr. M. notes "high risk behav[ior]" under "Clinical Impressions. The Board further notes that no high-risk behaviors were listed. As such, the Board places no probative value in this treatment record and finds that the December 2012 addendum is inadequate as it relies on a faulty presumption of high risk activity without expounding upon what the alleged high-risk behaviors are. The Veteran was afforded a VA Hepatitis examination in October 2014. The examiner opined that the Veteran’s Hepatitis C is less likely than not related to the Veteran’s service, with the rationale that he is unaware of any peer reviewed information indicating that jet injectors have transmitted hepatitis C. The examiner further noted that high-risk behavior was noted on his chart. Here, as the examiner relied on the same treatment record noting “high risk behaviors” without expounding upon said behaviors, and without explaining why the Veteran’s claimed means of exposure to hepatitis C could be discounted, the Board finds the examination to be inadequate. An addendum to October 2014 VA opinion was obtained in February 2015. The examiner stated it is less likely than not that the Veteran’s Hepatitis C was related to his military service, noting that while it is biologically plausible that such transmission could occur, there has not been a documented case. It was further noted that the Veteran was diagnosed after the infection and that the infection was asymptomatic which, although biologically plausible, “further reduces the likelihood that transmission occurred at that time.” Here, the examiner did not discuss the Veteran’s risk factors of exposure to contaminated razor blades, barber shears, and dental equipment, nor did he explain what other risk factors were present that the Veteran’s asserted means of exposure to hepatitis C could be discounted. As such, the addendum is inadequate. In a September 2015 Veterans Health Administration (VHA) opinion, it was stated that there is no evidence that the Veteran has had hepatitic C at any time since March 2007. The examiner referenced a March 2012 blood test that was positive for hepatitis C, but dismissed it as being an antibody test, stating that it “does not necessarily indicate active infection.” The examiner stated that “[w]hile it is theoretically possible to transmit infections with improperly used air gun or jet injectors, to date there is no medical evidence supporting this as a risk factor for acquiring hepatitis C.” The examiner further noted a study which “[f]ound that exposure to air gun injectors was not a significant risk factor for acquiring HCV when corrected for exposure to traditional risk factors such as intravenous drug use, transfusions, tattoos, and incarceration.” The examiner then opined that that there is no evidence that hepatitis C infection was related to the Veteran's service based on nothing in the service records indicating such a diagnosis, and that there is no evidence of any residuals of hepatitis C. The Board notes that the Veteran has denied all the “traditional risk factors” listed by the examiner. Furthermore, the examiner relied heavily on there being no record of hepatitis C in the service records, despite conceding that infection can be asymptomatic. As such, the Board finds this opinion to be inadequate. In a March 2016 private medical opinion, Dr. B. C. reviewed the Veteran's service medical records and stated the Veteran was injected with vaccines using an airgun that "has been proven to spread viral hepatitis." The doctor also stated the Veteran was shaved by military barbers who used the same razor on hundreds of other persons. The doctor then noted the Veteran has no history of drug abuse. The doctor then opined that the Veteran's Hepatitis C was more likely than not acquired during military service. In a June 2016 private medical opinion, Dr. B. C. states that, while in service, the Veteran was injected with vaccines using an airgun that has been proven to spread viral hepatitis. The doctor also stated the Veteran was shaved by military barbers who used the same razor on hundreds of other persons. It was noted the Veteran has no history of drug abuse. The doctor opined that while there is no direct evidence of hepatitis C infection in his military records, "acute HCV is almost always silent and the first HCV antibody test was released in 1989. Service connected HCV is found years later not at the time of the initial infection in the great majority of cases." The doctor then opined that it is at least as likely as not that the Veteran's Hepatitis C was acquired when he received vaccinations from contaminated airguns. Here, the Board finds that the sum of the March and June 2016 medical opinions from Dr. B. C. contain a positive nexus opinion with a well-reasoned rationale. As such, the Board accords them considerable probative value. The Board finds that the evidence is at least in equipoise as to whether the Veteran's hepatitis C is related to his military service. The benefit of the doubt rule is therefore for application. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. P. Keeley, Associate Counsel