Citation Nr: 0725073 Decision Date: 08/13/07 Archive Date: 08/20/07 DOCKET NO. 06-02 852 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION The veteran served on active duty from October 1966 to July 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office in Detroit, Michigan (RO), which denied the benefit sought on appeal. FINDING OF FACT Competent medical evidence related Hepatitis C to risk factors present in service; and giving the veteran the benefit of the doubt, the objective medical evidence is in equipoise as to whether his current Hepatitis C is related to service. CONCLUSION OF LAW Resolving the benefit of the doubt in the veteran's favor, hepatitis C was incurred in active military service. 38 U.S.C.A. §§ 1110, 5103-5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.303 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist At the outset, the Board notes that, in November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2004). The VCAA is not applicable where further assistance would not aid the veteran in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"). In view of the Board's favorable decision in this appeal, further assistance is unnecessary to aid the veteran in substantiating his claim. II. Analysis The veteran claims that he has hepatitis C due to service, due to inoculations received in service. Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.303(a) (2006). To establish service connection, there must be (1) medical 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) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). To establish a showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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 Board points out that risk factors for hepatitis C include intravenous (IV) drug use, blood transfusions before 1992, hemodialysis, intranasal cocaine, high-risk sexual activity, accidental exposure while a health care worker, and various kinds of percutaneous exposure such as tattoos, body piercing, acupuncture with non-sterile needles, shared toothbrushes or razor blades. VBA letter 211B (98-110) November 30, 1998. Service connection may be granted only when a disability was incurred or aggravated in the line of duty and was not the result of the veteran's own willful misconduct or, for claims filed after October 31, 1990, the result of his abuse of alcohol or drugs. 38 C.F.R. § 3.301(a). The isolated and infrequent use of drugs by itself will not be considered willful misconduct. However, the progressive and frequent use of drugs to the point of addiction will be considered willful misconduct. Where drugs are used to enjoy or experience their effects and the effects result proximately and immediately in disability or death, such disability or death will be considered the result of the person's willful misconduct. Organic diseases and disabilities which are a secondary result of the chronic use of drugs and infections coinciding with the injection of drugs will not be considered of willful misconduct origin. Where drugs are used for therapeutic purposes or where use of drugs or addiction thereto, results from a service-connected disability, it will not be considered of misconduct origin. 38 C.F.R. § 3.301(c)(3). An injury or disease incurred during active military, naval, or air service shall not be deemed to have been incurred in line of duty if such injury or disease was a result of the abuse of drugs by the person on whose service benefits are claimed. Drug abuse means the use of illegal drugs (including prescription drugs that are illegally or illicitly obtained), the intentional use of prescription or non-prescription drugs for a purpose other than the medically intended use, or the use of substances other than alcohol to enjoy their intoxicating effects. 38 C.F.R. § 3.301(d); See also 38 U.S.C.A. § 105; 38 C.F.R. § 3.1(m). VA's General Counsel has held that direct service connection for a disability that is a result of a claimant's own abuse of drugs is precluded for purposes of all VA benefits for claims filed after October 31, 1990. See VAOPGCPREC 7-99 (1999), 64 Fed. Reg. 52,375 (1999); VAOPGCPREC 2-98 (1998), 63 Fed. Reg. 31,263 (1998). In cases where a veteran's service medical records are, through no fault of his own, unavailable, a heightened duty exists to assist the veteran in the development of the case. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (where the veteran's service medical records have been destroyed or lost, there is a duty to advise the veteran to obtain other forms of evidence). In such situations, the Board also has a heightened obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). In this case, the veteran's service medical records associated with immunizations are missing. The Board concedes that the veteran most certainly would have received various inoculations during service, and accepts the veteran's credible testimony that these involved use of airgun injectors. The claims file includes sufficient medical evidence showing a diagnosis of hepatitis C. Because the record contains competent medical evidence of this current disorder, and no evidence to the contrary, the Board concedes the presence of such disability. Therefore, the primary question is whether hepatitis C was incurred in or aggravated by active military service. 38 C.F.R. §§ 3.303 (2006). Service medical records show no indication of any hepatitis C or problems associated with that liver disorder during service. At the time of his release from active duty, the July 1969 report of medical history shows that the veteran reported he did not have nor had had any stomach, liver or intestinal trouble, jaundice or any reaction to serum, drug or medicine. On examination at that time there were no abnormal evaluations associated with the liver. Private treatment records in October 1988 show that the veteran was seen with a history of increased liver enzymes shown in March 1987; and that again, in June 1988, he was found to have increased liver function test findings. The treatment provider noted a past history of a relationship with prostitutes while in Vietnam; and that the veteran was in Vietnam from 1967 to 1968, and used heroine for two years when back from Vietnam. Late in 1979 he had flue-like symptoms for two to three weeks and was told he had meningitis, possibly. He had been very fatigued at that time. The veteran had no history of blood transfusions. Subsequent private treatment records through 1994 show treatment for Type C hepatitis; and include laboratory test findings showing that hepatitis C virus RNA was shown. Private treatment records in February 1997 indicate that the veteran was tested for hepatitis C virus. A diagnostic radiology report later that month noted a clinical history of Hepatitis C. Subsequent VA and private treatment records dated through 2004 show treatment for diagnosed hepatitis C. In a December 2003 statement, Kimberly Brown, M.D., noted that the veteran had presented to his office for treatment in 1996 with a diagnosis of hepatitis C that had been given to him in 1990. The statement noted that Dr. Brown reviewed the veteran's risk factors for hepatitis C, and opined that one could consider Jet injections while in Vietnam in 1967 as a possible source. Dr. Brown further opined that given the method of application, it would certainly be possible that hepatitis C could have been transmitted to the veteran in that fashion. The report of a May 2006 VA liver, gall bladder, and pancreas examination, shows that the examiner reviewed the claims file. The examiner noted a history of increased liver enzymes shown in the late 1980s, and that subsequently the veteran was found to have hepatitis C infection in the early nineties. The veteran denied any history of recent jaundice, ascites, or hepatocellular failure. He had had no frequent hospitalizations for management of liver problems. The last liver biopsy was in 1999, which revealed chronic hepatitis with portal fibrosis. The veteran gave a history of taking intravenous drugs (heroine) in 1969 and 1970, and that he received immunizations via Jet injector while in service before going to Vietnam. The veteran denied having had any sexually transmitted diseases. The examiner noted, however, that as per an October 1988 examination report, the veteran had a history of relationship with prostitutes in Vietnam. The veteran denied having any blood transfusions before 1992; and denied having any tattoos, piercings, acupuncture, or dialysis. He reported he had no previous history of jaundice or hepatitis. After examination, the report contains a diagnosis of hepatitis C infection. The examiner concluded with an opinion that the veteran's hepatitis C infection is most likely related to previous intravenous drug abuse as well as high-risk sexual behavior. The examiner further opined that despite the lack of any scientific evidence to document transmission of Hepatitis C virus with airgun injectors, it is biologically plausible. But it is less likely that the hepatitis C is related to immunization via "Jet Injector" in service "as he is having other well known above risk factors," as noted above. After full review of the record, including the veteran's credible testimony and the findings shown on examinations, and giving the veteran the benefit of the doubt, the Board finds the evidence to be in equipoise. Under such circumstances, with the resolution of all reasonable doubt in the veteran's favor, and without ascribing error to the action by the RO, the Board concludes that service connection for hepatitis C is warranted. In making this determination the Board has weighed the evidence discussed above, and in particular, the veteran's testimony regarding potential risk factors, and opinions contained in the record. The veteran has credibly testified that during service he never shared needles when using intravenous drugs, and during relations with prostitutes he never had unprotected sex; and that during service he received immunizations by jet injections (airgun injectors). As noted above, Dr. Brown opined that one could consider Jet injections the veteran received while in Vietnam as a possible source of his hepatitis C infection. Dr. Brown further opined that given the method of application, it would certainly be possible that hepatitis C could have been transmitted to the veteran in that fashion. The Board finds this opinion is equivalent to stating that the Jet injections would be a risk factor for the veteran's hepatitis C. The second opinion important to this decision is that provided by the examiner who conducted the May 2006 VA liver, gall bladder, and pancreas examination. That examiner opined that the hepatitis C infection was most likely related to previous intravenous drug abuse as well as high-risk sexual behavior. Because the examiner felt that these other "well known" risk factors were the most likely cause of the veteran's hepatitis C, he discounted the potential relationship between the inservice immunization and the hepatitis C infection. The examiner noted that even though transmission of hepatitis C by jet injector was biologically plausible, he felt that it was less likely that the hepatitis C was related to immunization via "Jet Injector" in service because the veteran had other well known above risk factors, meaning the "previous intravenous drug abuse as well as high-risk sexual behavior" noted above. In sum, although the examiner indicated there were three risk factors, he felt that the two more well known risk factors, of intravenous drug abuse and high-risk sexual behavior, were more likely causes of the veteran's hepatitis C infection. Thus, the medical record contains opinions linking the veteran's current hepatitis C to risk factors present in service. In this regard, the Board notes that the veteran credibly testified that while he may have participated in intravenous drug abuse and sexual behavior with prostitutes in service, he never shared needles or had unprotected sex. Nevertheless, the VA examiner still opined that the "previous intravenous drug abuse as well as high-risk sexual behavior" was a likely cause of the veteran's hepatitis C. The Board has considered the fact that the veteran was an admitted intravenous drug user in service, and that an injury or disease incurred during service is deemed to have been incurred in the line of duty unless it was a result of the person's own willful misconduct. 38 U.S.C.A. § 105 (West 2002 & Supp. 2005); 38 C.F.R. § 3.301(a) (2005). Willful misconduct means an act involving conscious wrongdoing or known prohibited action; it involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences, to include the abuse of drugs. 38 C.F.R. §§ 3.1(n), 3.301 (2006). However, as the medical evidence has also linked the veteran's hepatitis C to risk factors of jet air gun immunizations and risky sexual behavior, a grant of service connection here does not rely on a nexus between the veteran's admitted intravenous drug use and the disease. Thus, given the linkage with risk factors of jet air gun immunizations and risky sexual behavior, the preponderance of the evidence does not support a finding that the veteran's hepatitis was the result of willful misconduct. Given the foregoing, the Board finds that on giving the veteran the benefit of the doubt, the Board concludes that the evidence is in equipoise. There is no evidence of any post-service risk factors to negate this conclusion. There is no evidence, and he has denied having any blood transfusions before 1992, tattoos, piercings, acupuncture, or dialysis. Thus, with the resolution of all reasonable doubt in the veteran's favor, the Board concludes that service connection for hepatitis C is warranted. ORDER Service connection for hepatitis C is granted. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs