Citation Nr: 21063259 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 14-35 522 DATE: October 13, 2021 ORDER Entitlement to service connection for hepatitis C is denied. FINDING OF FACT Hepatitis C did not have its onset during active service and is not otherwise related to active service. CONCLUSION OF LAW The criteria for service connection for hepatitis C have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from November 1975 to January 1979. This matter was previously denied by the Board in June 2020, after which the Veteran appealed the matter to the United States Court of Appeals for Veterans Claims (Court). In April 2021, the Veteran and the Secretary of VA (partis) filed a Joint Motion to Remand (JMR) to vacate the June 2020 decision and remand the claim for service connection for hepatitis C for additional reasons and bases. The Court granted the motion that same month. As discussed further below, the deficiency identified within the April 2021 JMR has been properly addressed herein. Entitlement to service connection for hepatitis C. The Veteran claims that his hepatitis C is due to active service. Specifically, within his December 2011 claim, the Veteran reported that his chronic hepatitis began in June 1976. He stated he was treated at Fort Carson, Colorado, and was told that he had hepatitis and put on 30 days convalescence leave and given "some type of pills." He believed that his hepatitis was due to inoculation guns used for immunizations, and also reported severe blood on skin contacts while performing military duties as a medical specialist in the field and motor pool. Finally, he stated that he was subsequently treated for hepatitis and made aware of its chronic condition while incarcerated from 1993 to 2000. Within his subsequent July 2013 notice of disagreement (NOD), the Veteran asserted that he had persistent symptoms of hepatitis during active service that had grown worse over the years. Following a review of the evidence of record, and as discussed more fully below, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for hepatitis C. The reasons for this decision follow. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Regarding the first element of a service connection claim, the requirement of a current disability, the Board notes that the post-service evidence of record, including VA and private treatment records, documents that the Veteran has a diagnosis of hepatitis C during the pendency of the appeal. Thus, the facts establish that the initial element of a service-connection claim is met. Regarding evidence of an in-service disease or injury, the Veteran's November 1975 Report of Medical Examination documents normal relevant clinical evaluations of all bodily systems without a notation of a hepatitis defect or diagnosis. Within the concurrent Report of Medical History at enlistment, the Veteran denied a history of jaundice or hepatitis. Similarly, within a December 1976 clinical record of medical history, the Veteran denied having ever been treated for liver disease (including infectious hepatitis). Subsequently, in June 1977, the Veteran complained of headache and fatigue on two, separate occasions and was referred for further consultation to rule out a provisional diagnosis of hepatitis after he was noted to have increased liver function test results (LFTs) on a routine blood donor screen. The Veteran denied any drug use/abuse or intravenous (IV) injections, history of tattoos, or exposure to hepatitis, etc. The Veteran stated that he may have been drinking before his last enzymes study and reported that he drank episodically. He was assessed with possible hepatitis from viral or ethyl alcohol (EtOH) etiology. In October 1977, the Veteran reported vomiting and loose, foul-smelling stools for three days and was assessed with the need to rule out recurring hepatitis. In August 1978, the Veteran complained of arthralgias and underwent lab testing based on his history of hepatitis. Thereafter, in November 1978, the Veteran's Report of Medical Examination documents normal relevant clinical evaluations of all bodily systems, without a notation of a hepatitis defect or diagnosis. Within a concurrent Report of Medical History, the Veteran reported a prior history of jaundice or hepatitis, and the examining physician noted that the Veteran previously had "acute hepatitis" in 1976, without hospitalization or sequelae. Finally, in January 1979, the Veteran signed a Statement of Medical Condition acknowledging that he underwent a separation medical examination more than three working days prior to separation, but that to the best of his knowledge, there had been no change in his medical condition since his separation examination. Given the above, the Board finds that the probative evidence of record documents that "acute hepatitis" occurred during active service sufficient to satisfy the in-service element; however, the additional evidence weighs against a finding that chronic hepatitis C first had its onset during active service, as the Veteran's separation examination documents a normal evaluation, without a notation of hepatitis, and the examining physician documented that there was no sequelae from the Veteran's acute hepatitis episode. Although the physician reported the Veteran's acute hepatitis was diagnosed in 1976, the Board notes that this appears to be harmless error, as service treatment records discussed above document that the relevant complaints occurred in 1977. Concerning the third required element of a causal relationship between the Veteran's current hepatitis C and his active service, the Board finds that the preponderance of the evidence weighs against a finding of a nexus. Post-service VA treatment records from January 2005 document that the Veteran was assessed with chronic hepatitis C after a liver biopsy. In July 2005, the Veteran was prescribed treatment for his hepatitis C. Subsequent private treatment records from the Texas Department of Criminal Justice (TDCJ), dated in February 2007, document that within an intake history and health screening, the Veteran reported a history of hepatitis and liver disease, as well as a history of illegal drugs, including daily use of cocaine. When asked to circle the mode(s) of drug use, the Veteran circled, "Smoking," "Injection," "Inhaled," and "Ingested." When asked when the last time was that he had used drugs or alcohol, the Veteran wrote, "12-15-05." Upon follow up that same month, the Veteran had no current complaints, did not report any significant past medical history, and current clinical evaluations were normal. In October 2007, the Veteran was scheduled for follow up regarding hepatitis, and a problem list documents that hepatitis C was first observed in April 2007. Thereafter, in July 2012, it was noted that the Veteran had refused hepatitis treatment by VA prior to his imprisonment, but he now wanted to proceed with workup and treatment for hepatitis C. Upon VA examination in July 2012, the Veteran reported that he was diagnosed with hepatitis around 1976 at Fort Carson and that a "final diagnosis" of hepatitis C was made in 1995 at the medical facility at High Tower Unit, Texas. He denied a history of drug use or high-risk sexual behavior but noted that he had received tattoos in 1998 and that he was exposed to blood as a medic. The VA examiner was unable to resolve the issue of whether the Veteran's currently claimed hepatitis was at least as likely as not due to the acute hepatitis treated in service without resorting to speculation because there was insufficient objective information to make such a medical determination. The examiner stated that even though there is some documentation of hepatitis in service treatment records, there is no clear information pertaining to the exact type of hepatitis. For this reason, the examiner concluded that any opinion regarding service-relatedness would be based on mere speculation. In July 2012, the Veteran submitted a statement wherein he wrote that he was diagnosed and treated for hepatitis after becoming ill while on leave to move from Fort Bragg, North Carolina, to Fort Carson, Colorado, after which he was treated for nausea, vomiting, and illness that continued for weeks. He also reported experiencing several occasions of blood on skin contact while acting as a medic, including having blood spattered in his face, eyes, and mouth, and noted that the only time he wore gloves was during minor surgery. He also stated that the use of inoculation guns was questionable, as he was not taught to clean the gun with alcohol. Finally, he noted that after his initial sickness and convalescence leave for hepatitis, that he did not pay much attention to continued symptoms, although he stated that he had been "inundated by several symptoms over the years," including severe fatigue, weakness, muscle and joint pain, abdominal discomfort, rashes, memory loss, and liver enlargement. TDCJ private treatment records dated in January 2014 document that the Veteran reported that he had contact with blood in 1975 while in service and was told he had hepatitis. He reported that he was subsequently told he had hepatitis C in 1994. He denied a history of intravenous (IV) drugs or blood transfusions and reported that he got his tattoos after his hepatitis diagnosis. He also reported approximately 40 female sexual partners and stated that he was supposed to start treatment in April. Upon follow up in May 2014, he was again noted to have hepatitis C, genotype 1. Upon subsequent VA examination in May 2016, a VA examiner opined that it was less likely than not that the Veteran's blood exposure during military service was the etiology of his current hepatitis C. The examiner acknowledged that the Veteran believed that his current hepatitis C was contracted in service due to either blood exposure or use of an inoculation gun but stated that medical literature indicated that the risk of contracting hepatitis via blood exposure was very low, and while transmission via an air jet inoculator gun was "theoretically plausible," she was unable to find any peer-reviewed medical literature showing actual cases attributed to this mode of transmission. Additionally, the examiner stated that there was strong objective evidence that the Veteran had several significant risk factors for hepatitis C, including IV drug use, high-risk sexual behavior, incarceration, the presence of tattoos, birth year between 1945 and 1965, and heavy alcohol use. The examiner noted that the Veteran had provided discrepant historical information regarding his risk factors. For example, the examiner noted that when the Veteran had elevated LFTs in 1977, he did not report any concerns regarding exposure, denied IV drug use, and noted that he may have been drinking before the labs were drawn. Moreover, the examiner stated that subsequent labs from one week later showed that the Veteran's LFTs had improved. The examiner stated, based upon medical literature, that elevated LFTs are a common finding that can be seen in patients with healthy livers. The examiner added that a separate reference article noted that alcohol use is a common cause for LFT elevation. As such, the examiner stated that the Veteran's 1977 LFT elevation was consistent with possible alcohol use but not consistent with an acute viral hepatitis pattern. The examiner stressed that the Veteran was not given a confirmed diagnosis of hepatitis in service, and that an examining physician at separation noted that the Veteran's report of hepatitis was "acute" with "no sequelae." Moreover, the examiner wrote post-service treatment records showed that in May 2004, the Veteran admitted IV drug use from 1971 to 1992, consistent with such use before, during, and after active service. The examiner acknowledged the 2005 intake record from TDCJ showed the Veteran reported a history of IV drug use, daily alcohol use until December 2005, and unprotected sexual history with multiple partners. The examiner referenced additional medical literature that supported that IV drug use was the most significant risk factor with the highest odds of developing hepatitis C, and that given the Veteran's questionable reliability as a historian and objective service treatment records, which do not document confirmed hepatitis C during active service, it was less likely than not that the Veteran's active service was the etiology of his current hepatitis C. In December 2019, the same VA examiner provided an addendum opinion that it is less likely than not that the Veteran's current hepatitis C had its onset in or is otherwise related to his active service. The examiner stated that the Veteran's allegations that occupational blood splashes during active duty caused his hepatitis C are not supported by evidence in his objective medical record or by current, credible, peer-reviewed medical literature. The examiner then referenced medical literature that showed that IV drug use remains the most significant risk factor for developing hepatitis C and noted that the Veteran previously reported long-term use of injected cocaine and had more recently reported IV heroin use, with additional risk factors of unprotected sex with multiple partners, excessive alcohol abuse, and incarceration. Regarding the potential for occupational blood exposure as a potential etiology, the examiner stated, based upon reference to medical literature, that it was "less common." The examiner noted that, even so, the main occupational risk for acquiring a bloodborne pathogen was "percutaneous injury with a contaminated object (such as needle or surgical instrument)" but that it was "possible" to develop hepatitis C after mucous membrane exposure to blood or other infectious material. However, additional articles referenced by the examiner noted that the risk of developing an infectious bloodborne viral disease due to occupational exposure remained very low. Additionally, the examiner noted that the frequency of blood exposure was also a factor and stated that the Veteran's statements regarding his blood exposure and its alleged relationship to his hepatitis C had varied over time, and that he had also alleged use of injector guns was an alternative source of hepatitis infection. In summary, the examiner stated that her opinion had not changed upon a current review of the records. She stated that the Veteran remained an unreliable historian, with more weight given to what was documented in the objective treatment records and medical literature references, which indicate that IV drug use and other risk factors present in the Veteran are much more likely to result in his chronic hepatitis C infection. As such, she again concluded that it is less likely than not that the Veteran's currently diagnosed hepatitis C had its onset in or is otherwise related to his active service. After consideration of the lay and medical evidence reviewed above, the Board affords great probative value to the May 2016 and December 2019 opinions rendered by the same VA examiner, who based her opinions on a thorough review of the claims file, including the Veteran's medical history, service treatment records, and post-service treatment records. Indeed, the Board notes that, following a thorough review of the record, to include the Veteran's history of risk factors for hepatitis C that included intravenous drug use and intranasal cocaine use, the VA examiner provided a medical conclusion that was supported by a thorough review of the Veteran's claims file and VA medical records, as well as a complete medical rationale, with review and citation to medical literature, to support the findings. Given the foregoing, the Board accepts the May 2016 and December 2019 medical opinions of the VA examiner as highly probative evidence. The Board has also carefully considered the lay evidence of record, including the Veteran's repeated assertions that his hepatitis C is related to his active service. Lay evidence can be probative insofar as the proponent relates observable symptomatology. Additionally, the Board is mindful that within the April 2021 JMR, the parties agreed that remand of this matter was required because the Board previously erred by not providing an adequate statement of reasons or bases for its decision. Specifically, the parties agreed that the Board previously failed to discuss how it reached the conclusion that the Veteran "lacks the medical expertise to competently determine the etiology of his Hepatitis C," in light of the evidence reflecting that the Veteran was a nurse and "medical specialist." Indeed, the Board acknowledges that the Veteran's DD Form 214 documents his military occupational specialty as a "medical specialist," with a related civilian occupation of a practical nurse. As such, the Board affords due probative value to the Veteran's reports concerning his various asserted etiological theories, including exposure to blood and air gun inoculations. However, the Board emphasizes that the mere fact that the Veteran received in-service training and experience as a medical specialist does not require the Board to find that he is competent to diagnose or provide an etiological opinion concerning a complex condition such as hepatitis C, which is diagnosed based upon various observable symptoms as well as laboratory findings. Moreover, even assuming that the Veteran is competent in his lay statements concerning the onset and etiology of his current hepatitis C, the Board must also determine if such evidence is credible, or worthy of belief. In considering the credibility and relative probative value of evidence, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence. Given the inconsistencies discussed above in the Veteran's lay statements concerning his in-service exposures, as well as his varied statements regarding his medical history, including particularly IV drug use noted to be a significant factor for hepatitis C, the Board finds that the Veteran's lay statements that assert that his current hepatitis C had its onset during active service or is otherwise related to active service to lack credibility generally. As such, the Veteran's lay statements, even assumed to be competent in light of his limited in-service medical training, are of little probative value in the context of his current claim for VA disability compensation. Additionally, the Board finds that the VA examiner's opinion is more probative than the Veteran's cursory lay allegations, where the examiner explained that the risk of a healthcare worker developing an infectious bloodborne viral disease due to occupational exposure remained very low and explained that the Veteran's statements regarding the relationship between his military blood exposure and development of hepatitis C had varied over time. The examiner also explained that intravenous drug use was much more likely to result in hepatitis C infection versus the other ways that the Veteran believed he developed hepatitis C, including the allegation that he may have gotten hepatitis C from an inoculation gun, which the examiner noted she was unable to confirm immunizations via an injector gun resulting in a hepatitis C infection. Thus, the VA examiner's findings, which are based on the facts that the Board finds are accurate, which is that the Veteran used drugs intravenously, medical principles and medical literature, are more probative than the Veteran's allegations. The Board acknowledges an August 2021 brief submitted by the Veteran's representative containing several arguments in support of the Veteran's claim, as well as attached medical literature. Therein, the representative first argued that the Veteran's lay statements should be considered and given due weight by the Board, based upon the Veteran's training to the level equivalent of a civilian practical nurse. As noted above, even assuming the Veteran's competency based upon such experience, the Board finds that his statements lack credibility and, therefore, they do not weigh in favor of his claim. Additionally, to the extent that his representative asserts that the Veteran is not an unreliable historian, the Board finds that this conclusion is unsupported by the most probative evidence of record, including the varied statements and inconsistencies pointed out within the May 2016 and December 2019 VA examiner's opinions. Additionally, the Board makes its own findings on credibility. Next, the representative asserts that the Board must consider that the use of inoculation guns and exposure to blood are strong potential transmission sources for hepatitis C, especially given that the Veteran received sixteen immunizations in service. The representative stated that past VA opinions relied upon medical literature related to current medical practices "and not the occupational practices present in the 1970s" and assert that an addendum opinion is warranted. However, the Board finds that an addendum opinion is not warranted, as the VA examiner's opinions discussed above are adequate to adjudicate the Veteran's claim. As noted above, the VA opinions considered the Veteran's stated theories of entitlement and nevertheless resulted in negative nexus opinions supported by reasoned rationales based upon sound medical principles and medical literature. While the Veteran's representative attempts to assert inadequacy given that the VA opinions were based upon current medical practices and not those practices present in the 1970s, the Board is unpersuaded as to how reliance on advance medical knowledge renders the opinions inadequate. Indeed, the examiner acknowledged the low risk of contracting hepatitis via blood exposure and that transmission via an air jet inoculator gun was "theoretically plausible;" however, following a review of the Veteran's lay and medical history, the examiner placed more weight on the Veteran's additional risk factors for hepatitis C, including his IV drug use. The Board finds that this is sufficient rationale and has afforded the VA opinions due probative weight. The Board also acknowledges that the VA examiner stated that she was unable to find any peer-reviewed medical literature showing actual cases attributed to this mode of transmission [via air inoculation gun]. In this regard, the Veteran's representative has submitted various medical literature in support of the Veteran's claim, including two articles regarding an outbreak of hepatitis B at a Long Beach, California weight-loss clinic in March 1985, which was noted to be "the first reported outbreak of any disease in which any kind of jet injector has been implicated as the vehicle of transmission. The CDC experiments reported here suggest that the Med-E-Jet, if contaminated, could transmit HBV but that it "does not become contaminated easily during actual use." Notably, this material concerns hepatitis B, which is different from the Veteran's claimed hepatitis C. Next, the representative cites to several articles concerning bloodborne exposures. A February 2020 article regarding the, "Epidemiology of Bloodborne Exposures," which noted that the main occupational risk for acquiring a bloodborne pathogen was "percutaneous sharps injury with a contaminated object." Notably, this specific risk was previously considered by the VA examiner in rendering her negative nexus opinion. A 2008 article entitled "Risk of infection in health care workers following exposure to a noninfectious or unknown source," also noted that the most frequent type of exposure was percutaneous injury, although the conclusion was that infection risk "seems to be extremely low for [hepatitis C virus]." As with the previous article discussed above, the Board is mindful that the VA examiner specifically considered the risk factor of percutaneous injury in rendering her negative nexus opinions. Moreover, the 2008 article similarly concluded, as did the VA examiner, that such risk was "extremely low." Similarly, a June 1993 article entitled "Occupational exposure to the human immunodeficiency virus and other blood-borne pathogens. A six-year prospective study" concluded that the risk of acquiring HIV (and other blood-borne disease) through occupational exposure is "very low" and could be further reduced by "adopting safe work practices." And an October 2017 article entitled "Occupational blood exposures in health care works: incidence, characteristics, and transmission of bloodborne pathogens in South Korea" also concluded that "the actual bloodborne pathogen transmission rate was low." Finally, the representative submitted a brief article from the Centers for Disease Control and Prevention (CDC) entitled "Hepatitis C: 25 Years of Discovery," which provided an overview of the "highlights and milestones from the past 25 years of Hepatitis C discovery." The Board is unable to find any specific facts from this particular article which support the Veteran's claim. In sum, the Board notes that the medical literature submitted by the Veteran's representative in conjunction with the August 2021 brief does not offer a substantive discussion of how those particular studies and/or articles support a finding that the Veteran's hepatitis C is related to his active service. Stated differently, the medical treatise literature is not probative given that it is of a general nature and does not reference the specific facts particular to the Veteran's claim. See Wallin v. West, 11 Vet. App. 509 (1998); see also Sacks v. West, 11 Vet. App. 314, 317 (1998). Moreover, despite the representatives attempt to assert inadequacy in the VA opinions of record because they cited current medical practices and not those practices present in the 1970s, all of the articles and literature submitted by the representative are dated after 1970, and most could be considered "current." Thus, the Board finds that the generalized medical literature and articles submitted by the representative in August 2021 do not outweigh the probative VA negative nexus opinions of record or warrant an addendum opinion. Finally, the August 2021 brief asserts that the Board should consider the relevant provisions of the VA Manual M21-1, which recognizes various risk factors for hepatitis C, to include blood transfusions, tattoos or body piercings, puncture with non-sterile needles, high-risk sexual activity, and air gun injections. The manual further instructs the adjudicator to "resolve reasonable doubt in favor of the Veteran when the evidence favoring risk factor(s) in service is equal to the evidence favoring risk factor(s) before or after service." Initially, the Board notes that it is not bound by this, or any, M21-1 provision, see DAV v. Sec'y of Veterans Affairs, 859 F.3d 1072, 1077 (Fed. Cir. 2017) ("The M21-1 Manual is binding on neither the agency nor tribunals"), but it "is required to discuss any relevant provisions contained in the M21-1 as part of its duty to provide adequate reasons or bases." Overton v. Wilkie, 30 Vet. App. 257, 264 (2018). As such, the Board has considered the relevant provision cited by the representative; however, the Board is mindful that the probative VA opinions of record properly considered the various risk factors for hepatitis C, including those present in this specific Veteran, before coming to the negative nexus conclusions discussed above. Moreover, for the reasons discussed above, the Board has considered the evidence of record and finds that the preponderance of the evidence weighs against a finding of nexus. Thus, the Board finds that consideration of the cited M21-1 provision does not support a grant of service connection in the Veteran's case. As such, the representative's August 2021 conclusion that the evidence establishes that the Veteran was at least as likely as not exposed to hepatitis C in service is unsupported by a probative rationale, and it is outweighed by the probative VA examiner's opinions discussed in detail above. In conclusion, for the reasons discussed above, the Board finds that the preponderance of the evidence weighs against the Veteran's claim of entitlement to service connection for hepatitis C. As such, there is no reasonable doubt to be resolved, and the claim is denied. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Chad Johnson, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.