Citation Nr: 21009265 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 13-08 481 DATE: February 22, 2021 ORDER Entitlement to service connection for hepatitis C is denied. FINDING OF FACT The most probative evidence does not reach the level of equipoise as to whether the Veteran’s hepatitis C had its onset during or is etiologically related to military service, to include as a result of tattoos, or vaccines given by an air gun jet injector. CONCLUSION OF LAW The criteria for entitlement to service connection for hepatitis C have not been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from August 1976 to June 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a rating decision issued by the Department of Veterans Affairs (VA). The Veteran testified before the Board during hearings in October 2015 and February 2019. Regrettably, the Veterans Law Judges who presided over these hearings are no longer employed by the Board. The Veteran was offered a chance to appear at another hearing in May 2020. In June 2020, his attorney responded that the Veteran did not wish to attend another Board hearing and wanted the claim to be decided on the evidence of record. This matter has an extensive procedural history dating back to 2009. Most recently, the Board remanded this matter to obtain an addendum medical opinion considering arguments raised by the Veteran’s attorney in January 2018, including an excerpt from a seminar given by a physician apparently suggesting a significant risk of hepatitis as a result of jet injectors for vaccinations. The Board remanded the matter with a directive to obtain an addendum opinion from Dr. R.P., who provided an opinion in December 2017, or another clinician if he was unavailable. On remand, the agency of original jurisdiction (AOJ) indicated that Dr. R.P. was no longer employed by VA. The AOJ scheduled a VA examination in October 2019. In November 2019, the Veteran called the AOJ and indicated that he was unable to make the examination appointment due to work obligations and short notice, and requested that the examination be rescheduled. The Veteran called again to check on the status of the examination in January 2020. In March 2020, the AOJ indicated that a VA examination was not required, and requested a medical opinion based on the Veteran’s electronic claims file. The AOJ obtained a medical opinion from Dr. J.O. in April 2020, and, thereafter, returned the claim to the Board. The Veteran’s attorney submitted a letter dated April 2020. He contended that a medical opinion is insufficient because the examiner did not have a chance to verify the accuracy of the medical history in the claims file with the Veteran, who previously contended that the history was inaccurate at the time of the Board hearing in October 2015. He further contended that the medical history relied upon by the examiner was inaccurate. However, the Board notes that the entire claims file was available to Dr. J.O., who specifically stated that he had reviewed the file in the Veterans Benefits Management System (VBMS). Thus, he was able to review all of the Veteran’s prior testimony about his medical history. The attorney has not specified what, if anything, the Veteran would have said differently about his risk factors if he had reported to an in-person VA examination. Moreover, Dr. J.O.’s opinion was based on direct quotations in the records of previous treatment providers. For the reasons explained in the analysis below, the Board finds Dr. J.O.’s opinion is substantially compliant with prior remand directives and entitled to significant probative weight. Stegall v. West, 11 Vet. App. 268, 271 (2011). Therefore, the Board finds that this matter is ready for a decision on the merits. Legal Criteria – Service Connection Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing direct service connection generally requires competent evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 1. Entitlement to service connection for hepatitis C The Board finds that the most probative evidence does not reach the level of equipoise in the claim of entitlement to service connection for hepatitis C. Thus, the appeal may not be granted. The record reflects that the Veteran has a current diagnosis of hepatitis C. See C&P Exam, March 2017. He contends that his hepatitis C infection was caused by either (1) an inoculation performed with an air gun jet injector during military service, or (2) a tattoo received during military service. Service medical records show that the Veteran received vaccinations while in basic training. The record is silent as to how these vaccinations were administered. The Veteran was examined for submarine duty in October 1976. In the examination report, the clinician wrote “none noted” in the section for identifying body marks, scars, and tattoos. The Veteran’s separation examination did not document any identifying body marks, scars, or tattoos in April 1979. The record shows private treatment for hepatitis C at the Riverside County Medical Center (Riverside) from 2001 to 2002. In February 2001, the clinician remarked that the Veteran was referred for hepatitis C treatment, and reported no history of increased abdominal girth/edema or blood transfusions. However, the clinician noted a positive history for tattoos, intravenous drug abuse in 1983, and “multiple sex partners, unprotected sex.” The record shows a follow-up appointment in April 2001. As to the Veteran’s social history, the clinician again noted that the Veteran reported a history of intravenous drug abuse and tattoos. In December 2001, the clinician noted that the disorder had been diagnosed in 1999, and was currently at a severity of 2/6 with mild micro and macrovesicular stentosis. The Board does not see any indication in the Riverside records that the Veteran’s doctors expressed an opinion as to how long he had the disorder before being diagnosed in 1999. VA medical records show that the Veteran attended a hepatitis C consultation in November 2008. The clinician noted, among other things, that the Veteran stated that his wife and daughter also had hepatitis C and that he believed that his wife gave it to him and his daughter. He indicated that his wife had a blood transfusion in the 1970s for blood loss after miscarriages. He reported trying cocaine in the 1970s, but denied intravenous drug abuse. The Veteran had a liver biopsy showing chronic hepatitis C with grade 2 activity, stage 3 fibrosis, minimal stainable iron, and mild steatosis in February 2009. The Veteran filed a claim for service connection for hepatitis C in July 2009. He submitted a VA Form 21-526 stating that “in September 1976 during boot camp at NTC San Diego when the Navy used an airgun to give recruits vaccinations. The airgun contained contaminants from use on multiple recruits. Through these contaminants, I believe I contracted Hepatitis C.” In September 2009, the Veteran submitted a VA 21-4138 contending, among other things, that the Navy used an air gun to give him injections without cleaning it between sailors, and that a physician (Dr. P.) had told him that he had the virus for about 20 years, considering the damage to his liver. He stated that he obtained one tattoo while on active duty, but that the tattoo parlor used new needles on each customer. He also stated that he obtained two tattoos after active duty, but that the parlor also used new needles on each customer. He also submitted a VA 21-4142, Authorization for Release of Information, in which he stated that he was originally diagnosed with hepatitis C by Dr. P. in 1999, but then referred for treatment to Riverside. He reported that “contrary to the VA clinic – Redding records, I have never used illegal drugs and I have never used or shared a needle for the purpose of using illegal drugs or for any other purpose.” The Board observes that the Veteran has never authorized VA to obtain records from Dr. P. despite being given the opportunity to do so. See VCAA Letter, September 2009. The Veteran’s attorney submitted arguments with a VA Form 9 in March 2013. He asserted, among other things, that the medical history obtained by VA medical staff in 2008 is inaccurate, and that the Veteran would testify that he used cocaine on one occasion with his ex-wife in 1981, has used no other drugs or shared needles for any reason, has never had any blood transfusions, got two tattoos after service, but he would testify to the sterile technique used by both parlors, has been with his current wife since 1983 and never participated in unsafe sex. The attorney cited to VBA Fast Letter 04-13, which concluded that it is “biologically plausible” that air gun injections could spread hepatitis C. The Veteran testified before the Board in October 2015. He stated, among other things, that his wife had a blood transfusion after her first children were born, but that those two children tested negative for the virus, and that the Veteran’s daughter with his wife did test positive for hepatitis C. He declined ever using intravenous drugs or sharing needles, but admitted to one instance of using cocaine nasally when he was either 19 or 20 years old. He endorsed getting two tattoos done while in the service, and stated that they reused needles after putting them into a cleaning solution, but that in the 1980s the tattoo parlors began using single-use needles. The record contains a medical opinion from Dr. R.P. dated September 2016. Dr. R.P. reviewed the claims file, including the Veteran’s hearing testimony and Fast Letter 04-13, and concluded that it is not at least as likely as not that the Veteran’s hepatitis C was incurred in or caused by military service. He indicated that the government had conceded that transmission through air guns was “biologically plausible”, even though no instances had ever been recorded, but pointed to the fact that the Veteran has three recognized modes of possible hepatitis C transmission, each with measurable risk factors. Regarding intranasal cocaine usage, he stated that transmission of hepatitis C through contaminated drug sniffing implements is a measured risk factor with an odds ratio of 4.5. Given the Veteran’s testimony on how and how many times he snorted cocaine prior to service, he found that the record tends to weigh against transmission in this manner, but still has to be assessed. Regarding sexual transmission, Dr. R.P. explained that while the Veteran’s wife’s children who were born prior to being with the Veteran do not have hepatitis C, that does not rule out her having the infection at that time or from contracting it between 1979 and 1983, after her second child was born but before she began a relationship with the Veteran. He noted that sexual transmission between monogamous partners has been estimated to be low (1 to 2% for the period between 1983 and 2001), with a small but measurable risk. Finally, he explained that the Veteran has multiple body tattoos, which are associated with hepatitis C infection even among those who do not have traditional risk factors. Dr. R.P. noted that a recent study found that hepatitis C patients remained significantly more likely to have a history of one or more tattoos, after adjustment for age, sex, race/ethnicity, with an odds ratio of 5.17. He concluded that the Veteran has three recognized risk factors for hepatitis C with small, but measurable transmission probabilities. He further explained that, while biologically plausible, the fact that there is no evidence that an air gun injection has ever caused a hepatitis C infection means that the evidence does not reach a 50 percent or greater threshold, and is merely “within the realm of possibility.” The Veteran underwent a VA examination with Dr. L.J. in March 2017. He diagnosed the Veteran with current hepatitis C, and wrote that the reader should “see September 2016 Ace opinion with regards to causation.” In March 2017, the attorney submitted a letter contending, among other things, that the Veteran had actually received four tattoos during service. He reiterated the Veteran’s contentions that the tattoos during military service were performed with reused needles and that the tattoos after service were performed with new, sterile needles. He also contended that if the Veteran’s wife had hepatitis C prior to their marriage, then she would have given it to her first two children. In November 2017, the attorney submitted a letter challenging the findings of Dr. R.P. and contending, among other things, that the opinion was insufficient because Dr. R.P. never examined the Veteran, the Veteran never used a contaminated drug sniffing implement, the record did not support sexual transmission between the Veteran and his wife, and that Dr. R.P. did not differentiate between tattoos performed with reused needles and sterile, new needles. Dr. R.P. provided an addendum opinion in December 2017. He reviewed the claims file, including the Veteran’s hearing testimony and lay contentions from the Veteran’s attorney in March and November 2017. He noted that the Veteran was born in 1958 and served in the Navy from 1976 to 1979, which would put his reported drug use during service. Still, he noted the use of alcohol and illegal drugs is not grounds for service connection and the Veteran’s testimony weighs against this method of transmission. He noted that the attorney alluded to the fact that the Veteran’s wife had a son after having the transfusion who is not infected with the virus to suggest that she would not have had the virus at that time. Dr. R.P. stated that this is misleading because vertical transmission is not 100% between mother and offspring, and is actually only about 5.8% for mothers who are HCV antibody positive and RNA positive. Regarding progression of the Veteran’s hepatitis as opposed to his wife, he stated that progression is variable among different individuals and has been incompletely defined. He stated that given that the Veteran’s wife had a blood transfusion before 1992 and currently has the virus, it is more likely than not that she contracted the virus from the transfusion and transmitted it to the Veteran. As to tattoos, Dr. R.P. explained that tattooing is inherently not a sterile procedure and that he would weigh all tattoos equally in the possibility of causing infection. He cited a 2017 study showing that tattooing in non-IV drug users still has a risk of transmission of hepatitis C with a 95 percent confidence limit odds ratio of 6.96. He explained that peer review literature does not discriminate against needle source and that the risk is present regardless. He stated that the Veteran likely had hepatitis C for a long time before diagnosis, but that it does not bear weight on how he contracted the infection. The Veteran’s attorney submitted another letter in January 2018. Among other things, he cited to a report from a medical conference in August 2005, and included a quotation from a physician, Dr. M.F., stating, among other things, that an air gun manufacturer warned “that bleeding could occur and that this would carry a risk of hepatitis, and that it recommended to the doctor that if blood was observed, then a re-sterilization should be done.” Dr. M.F. cited to a case study purporting to show four of the old model jet injectors were transmitting “quite often quite a significant amount of blood”, and indicated that a hepatitis B outbreak in California had been linked to a jet injector. The attorney contended that the presentation by Dr. M.F. indicated a significant risk of infection from hepatitis B, and thus from the studies he referenced, hepatitis C, and asserted that Dr. M.F.’s conclusions cast doubt on Dr. R.P.’s findings. He also cited to testimony presented at a Senate Veterans Affairs committee meeting in October 2015, and an article from the VA website about hepatitis C. The attorney disputed Dr. R.P.’s findings about potential sexual transmission because he did not consider the risk percentage of the Veteran’s wife contracting hepatitis C from the transfusion in the early 1970s. The Veteran and his attorney appeared before the Board again in February 2019. The attorney stated, among other things, that the Veteran only referred to two tattoos at the last hearing because that was also at the same time that he was exposed to the air gun, and he thought that was what the Board was asking about. He also stated that the Veteran had a much higher level of hepatitis C in his blood than his wife, which suggests that he had the disease before his wife. The Veteran repeated his assertions that he received tattoos using reused needles during service, used cocaine through the nose once at a party in 1980, and only had sexual relations with his wife since their relationship began. He described how his inoculations were administered with the air gun jet injector during military service. The Board remanded the matter to obtain a medical opinion considering the evidence raised by the attorney in January 2018. Dr. J.O provided a medical opinion in April 2020. He reviewed the claims file, including the prior reports of Dr. R.P. and Dr. L.J., and opined that it is less likely than not that the Veteran’s hepatitis C was caused by air gun jet injectors during military service. He cited to the Veteran’s treatment records from February 2001, including a positive report of intravenous drug abuse in 1983 and a history of multiple sexual partners and unprotected sex. He noted that records in April 2001 further showed reports of a history of intravenous drug abuse and tattoos. He stated that he reviewed the attorney’s statements and Dr. R.P. and Dr. L.J.’s reports, but that neither of them noted the Veteran’s reports of intravenous drug abuse and multiple sexual partners and unprotected sex. After careful review of the record, the Board finds that the most probative evidence does not reach the level of equipoise in the claim of entitlement to service connection for hepatitis C. In reaching this conclusion, the Board has carefully considered the medical evidence. Initially, the Board observes that the Veteran endorsed a history of intravenous drug abuse at least twice, and a history of sexual intercourse with multiple partners/unprotected sex, to his doctors at Riverside in 2001. The Supreme Court of the United States has held that a statement made in the course of procuring medical services, where the declarant knows that a false statement may cause misdiagnosis or mistreatment, carries special guarantees of credibility that a trier of fact may not think replicated by courtroom testimony. White v. Illinois, 502 U.S. 346, 356 (1992). Although the Veteran has disputed the accuracy of the VA medical history in 2008, he has never disputed the accuracy of the history he gave to the Riverside doctors. As the Veteran made these reports in the course of obtaining medical services, the Board affords them greater probative weight than the statements made in the course of his compensation claim. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that the Board is fully justified in determining whether lay evidence is credible). Dr. J.O. opined that it is less likely than not that the Veteran’s hepatitis C had its onset during or is related to air gun jet injections during military service. He cited to the Veteran’s own reports of intravenous drug abuse in 1983 and sexual risk factors to the Riverside doctors. As Dr. J.O. considered the claims file, including the evidence and contentions raised by the attorney, and cited to relevant evidence in the Veteran’s medical history, the Board finds his conclusions to be of significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board has reviewed Dr. R.P.’s medical opinions from 2016 and 2017. He opined that it is less likely than not the Veteran’s hepatitis C had its onset during or is related to military service, to include an air gun injector or tattoos during service. Of note, he explained that tattooing is an inherently non-sterile process and he would weigh each of the tattoos (during and after service) equally as a risk factor. As he reviewed the claims file, and provided a persuasive rationale supported by citations to medical evidence, his findings are also entitled to probative weight. The Board recognizes the attorney’s contentions that neither Dr. R.P. nor Dr. J.O. physically examined the Veteran. However, a physical examination is not required in order to issue a persuasive medical opinion based on the Veteran’s medical history, which is reflected in the findings of Dr. R.P. and Dr. J.O. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (holding that an opinion is adequate where it is based upon consideration of the veteran’s prior medical history and examinations and also describes the disability in sufficient detail so that the Board’s evaluation of the claimed disability will be a fully informed one). The Board has considered the contentions raised by the Veteran and his attorney. However, the ability to link hepatitis C to military service requires complex medical knowledge that is beyond the capacity of a lay person. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Moreover, the Board is aware of significant inconsistencies in the Veteran’s testimony that negatively impact his credibility. Caluza v. Brown, 7 Vet. App. 496, 511 (1995). For example, in September 2009, he submitted a signed statement that he obtained a tattoo during military service, but that the parlor used new needles after each customer. In October 2015, he testified to having two tattoos with reused needles in service, and in February 2019, he further changed his testimony and reported having four tattoos with reused needles during service. The Board notes that military medical examinations in October 1976 and April 1979 did not document any tattoos on the Veteran’s body. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (holding that contemporaneous evidence has greater probative value than history as reported by a veteran). As such, the Board is left in doubt as to precisely when and how many tattoos, if any at all, the Veteran actually obtained during military service. The Board also observes that the Veteran wrote a statement that “I have never used illegal drugs” in September 2009, but later reported an instance of cocaine usage after military service. Furthermore, the Veteran endorsed a history of intravenous drug abuse in 1983 and multiple sexual partners/unprotected sex to the Riverside doctors, despite denying these behaviors repeatedly in statements made to the Board. For these reasons, the Board finds that the Veteran’s testimony lacks credibility and is not entitled to probative weight. See Buchanan, 451 F.3d at 1337. The Board has reviewed VBA Fast Letter 04-13. It states, among other things, that “despite the lack of any scientific evidence to document transmission of HCV with airgun injectors, it is biologically plausible.” Although it may be “biologically plausible” that an air gun jet injector could transmit hepatitis C, in order to support a grant of service connection the evidence in this case must rise to the level of equipoise that this Veteran’s disease was related to an air gun jet injection during service. See 38 C.F.R. § 3.102. Dr. R.P. and Dr. J.O. both considered and rejected the possibility of air gun transmission in the Veteran’s case, and cited to his other risk factors. As previously indicated, the Board affords the findings of these medical professionals significant probative weight. The Board is sincerely grateful for the Veteran’s military service. However, given the record before it, the Board finds that the evidence in this case does not reach the level of equipoise as to whether service connection for hepatitis C may be granted. See 38 U.S.C. § 5107(a) (“[A] claimant has the responsibility to present and support a claim for benefits....”); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (recognizing that “[w]hether submitted by the claimant or VA... the evidence must rise to the requisite level set forth in section 5107(b),” requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Reed, Associate 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.