Citation Nr: 18121451 Decision Date: 07/25/18 Archive Date: 07/25/18 DOCKET NO. 07-06 481A DATE: July 25, 2018 ORDER Entitlement to service connection for hepatitis C is granted. Entitlement to service connection for cirrhosis of the liver, claimed as secondary to hepatitis C, is granted. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran’s diagnosed hepatitis C was incurred in his active military service. 2. The Veteran’s diagnosed cirrhosis of the liver is caused by his service-connected hepatitis C. CONCLUSIONS OF LAW 1. Resolving all doubt in the Veteran’s favor, hepatitis C was incurred in his active service. 38 U.S.C. §§ 1101, 1110, 1131, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for entitlement to service connection cirrhosis of the liver on a secondary basis are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1963 to May 1967. His decorations include the Purple Heart Medal. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In an August 2009 decision, the Board denied the Veteran's claims. In May 2011, the United States Court of Appeals for Veterans Claims (Court) remanded the matters. In a March 2012 decision, the Board again denied the Veteran's claims. In a March 2013 Order, the Court granted a Joint Motion for Remand of the Veteran's attorney and the Secretary of VA, setting aside the March 2012 Board decision and again remanded the matters to the Board. In February 2014, the Veteran passed away. The Board therefore dismissed the appeal in March 2014, as the death of the Veteran deprived the Board of jurisdiction to adjudicate the merits of the appeal. In April 2014, the Veteran's surviving spouse requested to be substituted for the Veteran for the purpose of continuing the claims pending at his death. In February 2015, VA granted substitution for the Veteran's pending claims. See 38 U.S.C. § 5121A. Most recently, in an August 2017 Board decision, the claims were remanded for further evidentiary development. The VA Appeals Management Center (AMC) continued the previous denials in a November 2017 supplemental statement of the case (SSOC). The Veteran’s VA claims file has been returned to the Board for further appellate proceedings. In June 2018, the appellant’s attorney submitted additional evidence directly to the Board. At that time, a written waiver of local consideration of this evidence was also submitted. This waiver is contained in the VA claims file. See 38 C.F.R. §§ 19.9, 20.1304(c). 1. Entitlement to service connection for hepatitis C. 2. Entitlement to service connection for cirrhosis of the liver, claimed as secondary to hepatitis C. In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions, or hardships of such service even though there is no official record of such incurrence or aggravation. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). The provision does not mean that a grant of service connection is presumed. Even when the section 1154(b) combat presumptions apply, a "veteran seeking compensation must still show the existence of a present disability and that there is a causal relationship between the present disability and the injury...incurred during active duty." Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. The appellant contends that the Veteran incurred hepatitis C during his military service. Specifically, the appellant argues that the Veteran developed hepatitis C as a result of a blood transfusion, which he received to treat an October 1965 gunshot wound in the Republic of Vietnam. See, e.g., the written argument of the appellant’s attorney dated June 2018. She additionally asserts that the Veteran subsequently developed cirrhosis of the liver, as secondary to the claimed hepatitis C. Id. For the reasons set forth below, the Board concludes that service connection is warranted for hepatitis C and cirrhosis of the liver. The Board recognizes that, during the pendency of this appeal, the Veteran also reported two other theories of exposure to hepatitis C, including that he was given a blood transfusion when he was treated for an automobile accident in service and that he was treated in service for gonorrhea, which indicated "high-risk" sexual activity. However, as the Board herein finds that service connection is warranted based upon the Veteran’s report of an October 1965 blood transfusion to treat a combat-related injury, the Board will not discuss the other theories of entitlement. The Board notes that 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 VA Training Letter 01-02 (April 17, 2001). In addition to the general statutory and regulatory legal authority governing service connection claims, a VA Fast Letter issued in June 2004 (FL 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). It was concluded in FL 04-13 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. It also noted that transmission of hepatitis C virus with air gun injections was "biologically plausible," notwithstanding the lack of any scientific evidence of documented cases of air-gun infection. The Fast Letter noted that, if a determination was made that an air gun was the source of hepatitis C, the report upon which the determination of service connection should include a full discussion of all modes of transmission and, if applicable, a rationale as to why an air gun was the source of the hepatitis C. FL 04-13. During the pendency of the appeal, all VA Fast and Training Letters, including those cited above, were rescinded and summaries incorporated into VA's Adjudication Manual, M21-1. The Adjudication Manual currently contains provisions similar to those in the Fast and Training Letters cited above. See M21-1, III.iv.4.I.2 (December 16, 2015). In this case, it is undisputed that the Veteran was diagnosed with hepatitis C and cirrhosis of the liver. See, e.g., the private treatment records dated in November 2003. With respect to in-service incurrence, the Board notes that the Veteran received the Purple Heart Medal indicating combat service. As such, 38 U.S.C. § 1154(b) is applicable. The record also indicates that the Veteran reported receiving a blood transfusion, in October 1965, while being evacuated by helicopter from the field where he suffered a gunshot wound. As the Veteran service treatment records (STRs) confirm treatment for this injury, and his report is consistent with the conditions and hardships of his combat service in Vietnam, his report of receiving a transfusion during evacuation must be accepted absent clear and convincing evidence to the contrary. In a June 2004 statement, the Veteran reported that he was diagnosed with hepatitis C in 1994. He also submitted a hepatitis questionnaire in which he reported receiving a tattoo in 1963 during his military service. He denied the use of intranasal cocaine, intravenous drugs, and high-risk sexual activity. He did report that he received blood transfusions in 1964 and 1966 during his military service. Private treatment records dated in January 1992 note a history of hepatitis C. Treatment records dated from November 2003 document a continuing diagnosis of hepatitis C. A VA medical opinion was obtained in December 2008 to address the etiology of the claimed hepatitis C. The examiner confirmed diagnoses of hepatitis C and cirrhosis of the liver. The examiner opined, “I have no evidence that the Veteran’s hepatitis C and/or cirrhosis is related to his period of active service, it would be mere speculation if I were to state it is at least as likely as not.” An April 2009 VA treatment record documented a notation by the Veteran’s treatment provider that the Veteran “probably likely as not contracted the virus (hepatitis C) from a transfusion in Vietnam in 1966.” In a February 2012 statement, Dr. P.C. addressed the etiology of the Veteran’s diagnosed hepatitis C. Dr. P.C. noted that, although the Veteran “is quite open about his history of drug and alcohol use after his time in service, he has been quite clear that there is no history of intravenous drug use.” Dr. P.C. reviewed the Veteran’s contentions and medical history, which show that he suffered from a gunshot wound to the right upper arm while on patrol outside of Danang in the Republic of Vietnam. The Veteran was initially treated in the field and eventually airlifted to a military hospital via helicopter. Dr. P.C. explained, “[a]ccording to [the Veteran’s] own statements, the transfusion was initiated before arriving in the field hospital where medical personnel would not have had the benefit [of] knowing what [the Veteran’s] CBC was, and could only make judgments based on the appearance of their bleeding patient.” Dr. P.C. opined that a notation in a November 1965 narrative summary indicated that the Veteran had “initial debridement and drain insertion of the wounds of the right arm in the field and was then air evacuated here for further treatment.” Additionally, a September 1965 clinical record noted that the Veteran did not want to have a mole on his back removed because he “bleeds easily.” Dr. P.C. found this to be corroborative evidence of the Veteran’s blood transfusion. Dr. P.C. further indicated that, following the Veteran’s initial hospital stay, treatment records document evidence of flu-like symptoms and a high fever of 104 degrees in December 1965. Dr. P.C. opined that “[t]hese symptoms represent potential initial symptoms of hepatitis C.” He therefore concluded, “the situation surrounding his gunshot wound would make a transfusion likely.” In a February 2016 letter, Dr. P.C. reiterated that, although there was no documentation of the claimed 1965 blood transfusion, “it is not unusual for field medics to initiate blood transfusions based on the clinical situations they faced. The fact that his records eventually demonstrated a normal complete blood count could just as easily be due to his pre-hospital transfusion and certainly do not provide any evidence against [the Veteran’s] claim.” Dr. P.C. further explained that there is no evidence that the Veteran has used intravenous drugs. He stated that, although the Veteran admitted to the use of alcohol, marijuana, ‘speed,’ and pills, “the use of these substances is not associated with a significantly increased risk of hepatitis C. A 2000 gastroenterology note documents a negative history of IV drug use and it is important to note that these records were composed years prior to [the Veteran’s] claim for VA benefits.” Dr. P.C. noted that VA’s conclusion that the Veteran’s hepatitis C was not diagnosed until 2003 is inconsistent with the medical evidence. He stated that “[a] medical note from January 1992 was reviewed, which clearly lists hepatitis C under the past medical history.” He stated that 1998 discharge summary from a Kaiser Permanente facility also clearly lists hepatitis C as a discharge diagnosis. Dr. P.C. then reiterated, “[a]fter another thorough review of [the Veteran’s] records, I stand by my previous opinion that it is as likely as not that [the Veteran] received a blood transfusion after being shot in Vietnam and that this transfusion is as likely as not the proximate cause of his hepatitis C.” Pursuant to the August 2017 Board Remand, a VA medical opinion was obtained in October 2017 at which time the examiner determined, “[i]t is less likely as not that the Veteran’s hepatitis C or cirrhosis of the liver had their onset during his active service or within one year of separation from active service.” The examiner explained that the Veteran’s claims file contains insufficient evidence to suggest “he had onset of hepatitis C or cirrhosis during service. Veteran’s C-file has separation exam from [April 1967], which did not indicate any complaints, signs, symptoms or treatment associated with hepatitis C or cirrhosis.” The examiner then noted that the Veteran’s treatment records suggest an official date of diagnosis in 2003, which is approximately 36 years after his separation from service. In a June 2018 letter, Dr. P.C. indicated that he had reviewed the October 2017 VA medical opinion and disagreed with the conclusions asserted by the VA examiner. After another thorough review of the Veteran’s medical history, Dr. P.C. reiterated his previous opinion “that it is as likely as not that [the Veteran] eventually developed hepatitis C secondary to a blood transfusion in-service in 1965. This infection, in turn, led to his development of cirrhosis and hepatocellular carcinoma.” Dr. P.C. explained that his opinion is based on the fact that the Veteran “had no other significant risks for developing a blood borne viral infection such as hepatitis C, and that I find his history in relation to the events prior to his hospitalization in 1965 to be credible.” Dr. P.C. continued, “I specifically disagree with the conclusion of the October 2017 VA examiner whose timeline of events is demonstrably wrong and also provides no alternative scenario which could explain [the Veteran’s] diagnosis.” Resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for hepatitis C is warranted in this case. The evidence of record does not contain clear and convincing evidence against the Veteran’s contention of in-service injury, namely a blood transfusion. 38 U.S.C. § 1154(b). Even when the section 1154(b) combat presumptions apply, a "veteran seeking compensation must still show the existence of a present disability and that there is a causal relationship between the present disability and the injury...incurred during active duty." Reeves, 682 F.3d at 998-99. Prior to his death, the Veteran submitted multiple statements in support of his contention that he was given blood transfusions in the field after he sustained a gunshot wound injury while on patrol in October 1965. The appellant has also submitted multiple medical opinions from Dr. P.C. in support of this contention. As detailed above, Dr. P.C. repeatedly explained that the Veteran’s report of in-service blood transfusions was consistent with the evidence of record. The Board finds the medical opinions of Dr. P.C. to be based upon a thorough review of the Veteran’s medical history, as well as pertinent medical literature. The Board recognizes that several VA examiners have concluded that the diagnosed hepatitis C is not related to the Veteran’s military service. However, Dr. P.C. reviewed the same records and came to a different conclusion. Moreover, given the positive nexus opinions from Dr. P.C., as well as the credible lay statements of the Veteran, the evidence is at least evenly balanced as to whether the current hepatitis C was incurred during the Veteran’s active military service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for hepatitis C is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In addition, the evidence of record demonstrates that the Veteran’s diagnosed cirrhosis of the liver was caused by the now service-connected hepatitis C. Entitlement to service connection for cirrhosis of the liver is therefore warranted on a secondary basis. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. K. Buckley, Counsel