Citation Nr: 19129407 Decision Date: 04/16/19 Archive Date: 04/16/19 DOCKET NO. 15-22 844A DATE: April 16, 2019 ORDER Entitlement to service connection for residuals of hepatitis C infection is denied. FINDING OF FACT The Veteran’s hepatitis C did not originate in service, within a year of service, and is not otherwise etiologically related to the Veteran’s active service. CONCLUSION OF LAW The criteria for service connection for residuals of hepatitis C infection have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1973 to January 1974. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision by a Department of Veterans Affairs Regional Office (RO). In December 2018, the Veteran testified at a Board videoconference hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. The Board observes that additional evidence has been added to the claims file following the last adjudication by the RO in the June 2015 statement of the case (SOC), including a December 2018 private medical opinion letter and a December 2018 email from the Veteran’s spouse. However, as the Veteran’s substantive appeal was received in July 2015, which is after February 2, 2013, an automatic waiver of evidence submitted by the claimant or his representative is presumed. In any event, in December 2018, the representative submitted a waiver of RO consideration of additional evidence. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be (1) 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) a causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Hepatitis C Residuals The Veteran asserts entitlement to service connection for hepatitis C residuals. Specifically, the Veteran asserts that he contracted the hepatitis C virus as a result of air gun inoculations during service. The evidence of record includes a September 1973 enlistment examination which noted a normal serology test. A tattoo was noted on both arms. The Veteran denied any jaundice or hepatitis. The service treatment records (STRs) also include a November 1973 diagnosis for gonorrhea. A January 1974 DA Form 3082-R, Statement of Medical Condition, shows the Veteran denied any change in his medical condition since his previous examination. Post service medical records show the Veteran was diagnosed with hepatitis C in April 1999. A January 2015 DBQ by EKG, a physician’s assistant, noted a diagnosis for hepatitis C with a date of diagnosis of 1998, and cirrhosis of the liver with a date of diagnosis of 2003. The only risk factor noted was “accidental exposure to blood by health care workers (to include combat medic or corpsman).” No rationale was provided. The Veteran underwent a VA examination in April 2015. The examiner noted diagnoses for hepatitis C and cirrhosis of the liver with 1998 listed as the date of diagnosis. The Veteran denied any IV drug abuse, intranasal cocaine use, high risk behavior, blood transfusion or needle sharing. The Veteran did report a self-applied tattoo prior to active duty service. In addition, the Veteran reported contracting gonorrhea in November 1973 and that he may have shared razor blades during service. The examiner noted no history of jaundice or acute hepatitis during service. Based on the reported history, the examiner noted high risk sexual activity and other direct percutaneous exposure to blood such as tattooing and shared shaving razors. In addition, the examiner noted that the Veteran was born between 1945 and 1965. The examiner opined that the Veteran’s hepatitic C and cirrhosis of the liver was “less likely as not (less than 50%)” incurred in or caused by service. In support of this opinion, the examiner noted that although the Veteran was lacking in all but one of the top five risk factors for developing hepatitis, he was noted to have potential exposure incidents including sexually transmitted disease, sharing razors, self-tattooing and being born between 1945 and 1965. In this regard, the examiner noted that immunizations were not considered a risk factor for developing hepatitis C. The examiner also noted that the Veteran had reported that the equipment he used to self-tattoo was new and unshared and his report of sharing razors was not confirmed and thereby speculative. Additionally, the examiner noted that sex with an infected partner was an uncommon route of contracting hepatitis C. Instead, the examiner noted that for many people without any known exposure to blood or drug use, their lone risk factor had been being born between 1945 and 1965. After consideration of the known risk factors, the examiner found the Veteran’s hepatitis C was most likely due to being born between 1945 and 1965. In addition, the examiner opined that the Veteran’s hepatitic C and cirrhosis of the liver was “less likely as not (less than 50%)” etiologically related to an immunization given during service. In support of this opinion, the examiner noted that hepatitis C and other infectious conditions have not been found to be causally connected to immunizations, nor was immunizations noted as a risk factor. At a June 2015 DRO informal conference, the Veteran reported no risk factors for hepatitis C other than in-service injections. With regard to the self-applied tattoos, the Veteran reported using a new needle. In a June 2015 letter, EKG, a physician’s assistant, opined that it was “at least as likely as not” that the Veteran’s hepatitic C was etiologically related to service. No rationale for the opinion was provided. In another June 2015 letter, EKG stated that the Veteran had been a patient since February 1999. In addition, EKG noted that the Veteran’s medical history and hepatitis C treatment records had been reviewed. Based on a review of that evidence, EKG opined that it was “at least as likely as not that [the Veteran] contracted HCV from inoculations received in the military.” In support of this opinion, EKG noted no other known risk factors that might have precipitated his condition. Another VA examination report was obtained in June 2015. The examiner was asked to provide a rationale and medical treatises in support of his prior medical opinion that the most likely risk factor for the Veteran’s hepatitic C was being born between 1945 and 1965. The examiner was also provided with the medical opinions by EKG and the medical articles submitted by the Veteran regarding jet gun inoculations. In support of his prior medical opinion, the examiner noted that in 2012, the Center of Disease Control established being born between 1945 and 1965 as an independent, additional risk factor for hepatitis C in addition to other known risk factors including blood products, needle sticks, drug abuse, sharing shaving and toothbrush utensils and high-risk sexual behavior. Conversely, the examiner noted that jet gun inoculations had not been established as being responsible for hepatitis C infections. The examiner further noted that being born between 1945 and 1965 was a risk factor that accounted for approximately three-fourths of all hepatitis C infections in the United States. In addition, the examiner noted that the Veteran had other known risk factors including having a sexually transmitted disease and that he reported sharing razors. Based on the above, the examiner opined that for veterans born between 1945 and 1965, the preponderance of the evidence was that it was “less likely than not (less than 50% probability) that jet guns are responsible for the transmission of hepatitis C.” With regard to the medical opinions offered by EKG, the examiner noted that those opinions included either no rationale or supporting documentation to support the medical conclusions reached, and, thus, lacked credibility. Finally, with regard to the web based medical articles, the examiner noted that those articles did not address hepatitic C but the concern for suspected sanitary conditions of jet gun inoculators and thereby the concern that use of unsanitary jet guns could be a vehicle for hepatitis B transmission. At a December 2018 Board hearing, the Veteran testified that individual doctors had related the cause of his hepatitic C due to air gun inoculations during service. In a December 2018 letter, EKG opined that it was “as likely as not” that the Veteran contracted hepatitis C from inoculations received during service. In support of this opinion, EKG stated that hepatitis C infections occurred following exposure to infected blood. In consideration that the method of vaccinating multiple people without cleaning or sterilizing air guns inoculators made that mode of inoculation at risk for hepatitis C blood contamination, EKG noted that “it is possible that receipt of vaccination via inoculation gun would be a cause for HCV exposure and subsequent infection.” Finally, the Board notes that the Veteran and his spouse have submitted several web-based articles regarding air gun injections and medical studies. These include the following submissions in November 2018: an article regarding air gun injection potential for disease transmission; articles regarding baby boomer veterans more at risk for hepatitis C; a medical article regarding hepatitis C virus screening and prevalence among veterans in VA care; an article regarding the withdrawal of air gun injectors from military use; presentations regarding improper procedures followed using air gun injectors; a pamphlet entitled “Veterans Did You Receive Jet Injector Inoculations? You May Be At Risk Of Hepatitis C;” and a medical article regarding the natural history of hepatitis C infection. The Veteran additionally submitted a June 2004 VA memorandum and an October 2017 letter from VA Director of Compensation Service recognizing the biological plausibility, despite a lack of scientific evidence, between air gun injectors and the transmission of hepatitis C and noting that a medical report linking hepatitis C to air gun injectors must include a full discussion of all potential modes of transmission for an individual veteran and a rationale as to why the air gun injector was the source of the infection. After a review of the evidence or record, the Board finds that service connection for hepatitis C residuals is not warranted. Initially, the Board notes that the Veteran has been diagnosed with hepatitic C and cirrhosis of the liver. Therefore, there is sufficient evidence the Veteran meets the threshold criterion for service connection of a current disability. VA recognizes several risk factors for hepatitis C. Such risk factors include transfusion of blood or blood products before 1992, organ transplant before 1992, hemodialysis, tattoos, body piercing, IV 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. See VA Training Letter 211A (01-02) April 17, 2001; VA Training Letter 211B (98-110) (November 30, 1998). In June 2004, VA issued a Fast Letter (VBA Fast Letter 04-13, June 29, 2004) identifying 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). The Fast Letter also noted that while there is at least one case report of hepatitis B being transmitted by an air gun injection, thus far, there have been no case reports of hepatitis C being transmitted by an air gun transmission. The Veteran’s STRs confirm he was administered immunizations during service. Accordingly, the second Shedden element, an in-service event, has been met. Therefore, the remaining question is whether his hepatitis C is related to service. In this regard, the Board notes that there are conflicting medical opinions of record. The probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion the physician reaches. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The credibility and weight to be attached to these opinions is within the province of the Board. In this case, the Board finds the cumulative April and June 2015 VA examination reports to be more probative than the cumulative private medical opinions as the VA examiner considered all potential risk factors pertaining to the Veteran for contracting hepatitis C and provided a substantive rationale. In support of his negative nexus opinion, the VA examiner noted that air gun injectors had not been established as being responsible for hepatitis C infections. Accordingly, the examiner concluded that immunizations was not considered a risk factor for developing hepatitis C. Instead, the examiner noted that the Veteran had other known potential exposure risks including a sexually transmitted disease, sharing razors, self-tattooing and being born between 1945 and 1965. Of the known risk factors, the VA examiner concluded that being born between 1945 and 1965 was the most likely cause. In support of this finding, the examiner noted that in 2012, the Center of Disease Control established being born between 1945 and 1965 as an independent, additional risk factor for hepatitis C. Additionally, the examiner noted that being born between 1945 and 1965 was a risk factor accounting for approximately three-fourths of all hepatitis C infections in the United States. Conversely, EKG provided medical opinions that the Veteran’s hepatitis C was “at least as likely as not” etiologically related to service, and/or air gun injectors. In this regard, the Board notes that the initial June 2015 opinion letter lacked any rationale or a discussion of any other risk factors applicable to the Veteran. Additionally, the second June 2015 opinion letter was based on an inaccurate factual predicate; namely that the Veteran had no other known risk factors for contracting hepatitis C other than via air gun injectors. As noted above, the Veteran had reported several risk factors including a self-applied tattoo, sharing razors during service, high risk sexual activity, and being born between 1945 and 1965. Lastly, the December 2018 opinion letter additionally did not acknowledge or discuss the Veteran’s various known risk factors and provided a speculative medical opinion that “it was possible” that air gun inoculation could be a cause of hepatitic C exposure and subsequent infection. The Board finds that absent a discussion of the other known risk factors, including risk factors reported by the Veteran, the private medical opinions are inadequate. The Board does recognize the Veteran and his spouse’s lay statements linking his hepatitis C infection to in-service inoculations. With regard to lay evidence of a nexus, lay persons are not categorically incompetent to speak on matters of medical diagnosis or etiology. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran and his spouse are competent to report purported symptoms or whether he has received a diagnosis from a medical professional. 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303 (2007). However, without evidence showing they have medical training or expertise, they cannot competently provide a medical nexus opinion regarding contracting the hepatitis C virus via air gun inoculations during service. 38 C.F.R. § 3.159(a)(1)-(2); Jandreau v. Nicholson, 492 F.3d 1372 (2007). In any event, to the extent the Veteran or his spouse may be competent to opine as to medical etiology, the Board finds that the lay assertions in the present case are outweighed by the cumulative April and June 2015 VA medical examiner’s opinions, who determined that there was no nexus between the Veteran’s hepatitis C and service. The examiner has training, knowledge, and expertise on which he relied to form his opinion, and he provided a persuasive rationale. Importantly, there is no adequate medical evidence to the contrary. Lastly, the Board recognizes the web-based articles, medical studies, pamphlets and presentations regarding air gun injectors and/or the prevalence of hepatitis C in veterans born between 1945 and 1965. In this regard, the Board notes that the June 2015 VA examination report specifically addressed the medical articles and found they did not address hepatitis C, but rather the concern for suspected sanitary conditions of air gun inoculators which “could be” a vehicle for hepatitis transmission. In any event, as noted above, that evidence does little more than show the plausibility of transmitting hepatitis via air gun inoculation. As noted above, that theory has already been acknowledged by VA. However, absent a discussion of the Veteran’s other known risk factors in addition to air gun inoculators, those submissions are not nearly as probative as the VA examination reports. Thus, the Board finds that the third Shedden requirement has not been met. Although the Veteran is entitled to the benefit-of-the-doubt where the evidence is in approximate balance, the benefit-of-the-doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for service connection for residuals of hepatitis C infection. The claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Lamb, Associate Counsel