Citation Nr: 21012352 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 16-37 495 DATE: March 4, 2021 ORDER Service connection for hepatitis C is granted. REMANDED Service connection for neck condition is remanded. Service connection for left arm condition, to include as secondary to neck condition, is remanded. FINDING OF FACT The evidence is in equipoise as to whether the Veteran’s hepatitis C is related to active duty. CONCLUSION OF LAW The criteria for entitlement to service connection for hepatitis C are met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty in the U.S. Navy from August 1975 to February 1976 and the U.S. Army from April 1985 to April 1989. The issue is on appeal from a September 2015 rating decision. The Veteran testified before the undersigned in a February 2021 hearing. A copy of the transcript is associated with the claims file. Service connection for hepatitis C The Veteran seeks service connection for hepatitis C. Specifically, he asserts that his hepatitis C was caused by immunizations received during active duty via air gun injectors, receiving a gamma globulin injection upon entrance into the Navy, and sharing razors to cut his hair. The Veteran has denied risk factors associated with hepatitis C infections to include intravenous drug use, high risk sexual activity, sharing toothbrushes, tattoos, or body piercings. The Board agrees and concludes that the Veteran has a disability of hepatitis C due to active duty. 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 medical evidence of record shows diagnoses of hepatitis C. Thus, the question becomes whether the current disability is related to service. Service treatment records demonstrate the Veteran received immunizations throughout his active duty tenure, mostly upon entrance into the Navy in August 1975 and Army in April 1985; and receiving a gamma globulin injection while in the Navy. The remainder of the Veteran’s service treatment records are void for any complaints of or diagnosis of hepatitis C. The Veteran was afforded a VA examination in August 2015. The Veteran’s hepatitis C diagnosis was continued. The examiner opined the Veteran’s hepatitis C was less likely than not due to active duty as his service treatment records showed no documentation of a hepatitis C diagnosis during service. Further, there was no indication that other veterans who served with the Veteran also contracted hepatitis C at that time. The examiner explained that the Veteran provided a history of 10 to 15 sexual partners, and per peer reviewed literature, multiple sexual partners is a risk factor for hepatitis C. In December 2020, a private interventional radiologist wrote a letter where he confirmed having treated the Veteran for the last five years. The radiologist stated that based on his treatment of the Veteran and upon review of his medical history, the Veteran’s hepatitis C was more likely than not a direct result of receiving multiple injections via air gun during active duty and receiving immunoglobulin in 1975 upon entrance to the Navy. Blood products were not screened for hepatitis C during that time in history. A private gastroenterologist submitted a letter in January 2021 confirming that he had treated the Veteran since 2010. The gastroenterologist noted the Veteran had a diagnosis of chronic hepatitis C with decompensated cirrhosis and hepatic encephalopathy. Based on his own treatment of the Veteran and reviewing the Veteran’s medical records, the gastroenterologist opined that the Veteran contracted hepatitis C while on active duty due to his multiple vaccinations via jet injectors, receiving a gamma globulin shot upon entrance [into the Navy], and receiving multiple haircuts with a straight edge razor at the onsite barbershop during his deployment in Korea. The private gastroenterologist noted that the Veteran has no other risk factors that may have precipitated his current diagnoses. An additional letter was received in January 2021 by the medical director in pain management/private doctor, Dr. J.B. The private physician is a Vietnam Army veteran. Dr. J.B. provided important context as to the vaccination injections with air guns. Draftees were lined up and received injections, one after the other. Although some draftees were instructed to not tense muscles or flinch upon receiving their multiple vaccinations, back-to-back, some draftees did which caused the vaccine site to bleed. However, the next vaccination was administered regardless if the arm was already bleeding from a previous vaccination. At the time that vaccinations were administered in this fashion, hepatitis C was unknown and there were no tests to diagnose it. Dr. J.B. opined that based on his personal experience as a draftee during the Vietnam War and as a professional medical doctor, the Veteran could have contracted hepatitis C when he shared razors with other soldiers in the field or from the gamma globulin injection he received; and it is likely and even probable that he contracted hepatitis C from the vaccinations that he received during active duty. The Veteran’s representative submitted a National Institute for Health study where researchers concluded that sexual transmission of hepatitis C among monogamous heterosexual couples did not occur frequently. The researchers also found that the maximum prevalence of infection amongst monogamous heterosexual sexual partners of hepatitis C transmission by sexual activity was only .07 percent, even with infrequent or no condom use. In his February 2021 hearing, the Veteran testified that he had multiple sexual partners in junior and senior year of high school. At the time of his active duty tenure in Korea, his wife was posted with him, and he only had sexual intercourse without prophylactics with his three wives, none of whom have been diagnosed with hepatitis C. In his lifetime, the Veteran had a total of 10 sexual partners. Based on the above, the Board finds that the record is in equipoise as to whether the Veteran’s hepatitis C is due to in-service vaccinations via jet injectors, sharing razors for haircuts while in the field, or a gamma globulin injection he received upon entrance to the Navy. The Board acknowledges the negative etiology opinion from the August 2015 VA examiner. However, the Board also recognizes that the August 2015 VA examiner included in her rationale that the Veteran had 10 to 15 sexual partners. The Veteran testified that he had had non-monogamous sexual activity while he was in his last two years of high school, and he was married and with his wife when posted in Korea. The Veteran’s representative submitted a NIH study which concluded that the maximum prevalence of hepatitis C infection between monogamous heterosexual sexual partners was .07 percent. None of his three wives have been diagnosed with hepatitis C. Furthermore, the Veteran’s private interventional radiologist, gastroenterologist, and pain management physician have cumulative insight that the examiner does not have into the Veteran’s treatment of hepatitis C as they treated him for five to 11 years, prior to submitting positive etiology letters linking the Veteran’s diagnosis to his active duty. Finally, the Veteran’s pain management physician is also a veteran of the Vietnam War and explained the process of air jet immunizations utilized and the lack of knowledge by the medical community as to the existence of hepatitis C at the time the Veteran was in active duty, providing context as to the transmission of hepatitis C incurred by the Veteran while on active duty. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection is warranted for hepatitis C. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Service connection for neck condition is remanded. 2. Service connection for left arm condition is remanded. The Veteran seeks service connection for a neck condition and left arm condition. Specifically, the Veteran states that he hurt his neck during horseplay in December 1985 and after falling down a hill in July 1987. The Veteran alleges that he has a left arm condition that is secondary to his neck condition and that it began during active duty. Service treatment records confirm the Veteran sought treatment for neck pain after a December 1985 injury. He was subsequently diagnosed with cervical strain and possible C7 fracture based on x-rays of the neck. The Veteran also sought treatment after falling while on patrol in June 1987. He was diagnosed with mild C7 neuropathy. In his April 1989 separation Report of Medical History from the Army, the Veteran reported that he continued to have problems with his neck and the examiner noted his history of C-spine pain and possible C7 neuropathy. The remainder of his service treatment records show normal cervical spine imaging. Post-separation, the Veteran continued to seek treatment for neck pain due to moderate degenerative disc disease of the cervical spine with limitation of flexion and extension, and left arm condition. Medical records do not contain a diagnosis of a left arm condition despite noting complaints that pain to the left shoulder and down the left arm stemmed from his neck pain. The Veteran was afforded a VA examination in May 2016 for his neck and left arm conditions. The examiner confirmed the Veteran’s diagnosis of degenerative disease, cervical spine. Although the examiner recognized the Veteran’s service treatment records and lay statements regarding injuring his neck after wrestling in 1985 and slipping and rolling down a hill in 1987, she opined the Veteran’s neck condition was less likely than not related to active duty. The examiner explained that despite the two incidents involving neck injury in 1985 and 1987, his separation examination in April 1989 did not show a diagnosis of a cervical spine condition, nor did the Veteran disclose neck issues on his Army National Guard enlistment physical in June 1993. Since separation from active duty, the examiner noted that the Veteran’s medical records did not show complaints of nor diagnosis of a neck condition until 2014 when degenerative disease of cervical spine was found on an x-ray. Regarding his left arm condition, the examiner found there was no diagnosis of left upper extremity radiculopathy. In November 2020, the Veteran’s treating private chiropractor submitted a letter opining that the Veteran’s cervical spine hyperflexion injury was traumatic enough to fracture his C7 spinous process, likely causing the lifetime of recurring pains experienced by the Veteran. Based on the chiropractor’s professional experience and medical literature, the chiropractor stated that it was well-known that without proper rehabilitation, an acute injury of the Veteran’s nature could cause lingering chronic pains and complications. The Veteran testified in February 2021 that he did not disclose his neck and left arm conditions during his June 1993 entrance examination for the Army National Guard because of his eagerness to serve. The Board finds that both May 2016 VA examinations of the neck and left arm conditions are not sufficient for adjudication purposes. The examiner did not take into consideration the Veteran’s report that he continued to experience issues with his neck on his April 1989 separation Report of Medical History, and that the examiner noted his history of C-spine pain and possible C7 neuropathy. Furthermore, the examiner did not take into consideration the consistent reports of left arm condition due to his neck condition during service and post-separation. Finally, the examiner did not provide an etiology opinion regarding a possible direct service connection for the Veteran’s left arm condition and his active duty. When VA undertakes to provide a VA examination or obtain a VA opinion it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, the Board finds that a remand for a new examination and medical opinion as to the etiology of the Veteran’s neck and left arm conditions are necessary. 38 C.F.R. § 4.2. Unfortunately, the Board finds the November 2020 positive etiology opinion provided by the Veteran’s chiropractor is speculative as he states that the Veteran’s in-service cervical injuries “likely” could cause the Veteran’s post-separation pain. The United States Court of Appeals for Veterans Claims has held that the use of equivocal language such as “may” makes a statement by an examiner speculative in nature. See Bostain v. West, 11 Vet. App. 124, 127-28, quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinion expressed in terms of “may” also implies “may or may not” and is too speculative to establish medical nexus). See also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (doctor’s statement framed in terms such as “could have been” is not probative); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (“may or may not: language by a physician is too speculative). As the November 2020 letter from the Veteran’s private chiropractor contains speculative language (i.e., “likely”), the Board finds the opinion speculative in nature. As it is speculative, it does not provide the necessary medical nexus between the Veteran’s in-service neck injuries and his current cervical spine degenerative arthritis. Upon remand, the Veteran should be scheduled for new VA examinations of his neck and left arm conditions. The examiner is asked to specifically discuss the November 2020 positive etiology opinion from the Veteran’s private chiropractor and the consistent complaints of neck pain and left arm pain due to neck pain found in the Veteran’s post-separation medical records. Additionally, the examiner should take the Veteran’s testimony from his February 2021 hearing into consideration when forming an etiology opinion for his neck condition and left arm condition. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the diagnosis of a neck condition. For each diagnosis found, the examiner is asked to opine as to whether it is at least as likely as not (i.e. 50 percent or greater) that the diagnosis is related to active duty, to include the Veteran’s December 1985 and July 1987 neck injuries found in his service treatment record. The examiner should note that the Veteran reported continuing neck issues in his April 1989 separation Report of Medical History and that the examiner noted his history of cervical spine pain and possible C7 neuropathy. When forming rationale for an etiology opinion, the examiner should explicitly take note of the positive etiology opinion provided by the Veteran’s treating chiropractor in November 2020. The examiner should also take into consideration the Veteran’s testimony from his February 2021 hearing. All opinions submitted must contain sufficient rationale. 2. Schedule the Veteran for a VA examination to determine any left arm conditions. For each diagnosis found, the examiner is asked to opine as to whether it is at least as likely as not (i.e. 50 percent or greater) that the diagnosis is related to active duty. For each diagnosis found, the examiner is asked to opine whether the Veteran’s left arm condition is at least as likely as not proximately due to his neck condition or aggravated beyond its natural progression by his neck condition. The examiner should take into consideration the Veteran’s consistent complaints of left shoulder and left upper extremity pain due to his neck condition during active duty and since separation from active duty. All opinions submitted must contain sufficient rationale. 3. Readjudicate the appeals. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Lee 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.