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BVA-Tattoo to the Rescue

From: Posted by NOD
Category: -
Date: 09/12/08

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Citation Nr: 0616001 Decision Date: 06/02/06 Archive Date: 06/13/06 DOCKET NO. 04-06 755 ) DATE On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to compensation for hepatitis C. REPRESENTATIONAppellant represented by: The American Legion INTRODUCTION The veteran served on active duty from November 1968 to June 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The veteran testified at a hearing before the Board in April 2006, and the certified transcript is of record. During the hearing, the veteran submitted evidence not previously reviewed by the agency of original jurisdiction (AOJ), but he waived initial AOJ consideration of the evidence. The appeal was developed and certified solely on the theory of entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for hepatitis C. Nonetheless, it was evident from the evidence and the veteran's testimony and contentions that he was also raising the issue of service connection for hepatitis C. Thus, in light of the favorable decision herein, the issue has been recharacterized as reflected on the first page of this decision. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. Hepatitis C was incurred as a result of a tattoo that the veteran received during his period of service. CONCLUSION OF LAW Hepatitis C was incurred in active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2005). The veteran alleges that he became infected with hepatitis C when he was exposed to blood-borne pathogens as a result of a 1991 heart surgery and associated blood transfusion performed at a VA medical center. He later averred that he was infected consequent to in-service jet-gun injections. He submitted treatise evidence that a history of jet-gun injections or blood transfusions prior to 1992 may be risk factors of hepatitis C. There is no evidence of treatment for hepatitis C in the veteran's service medical records. Post-service medical records note treatment for hepatitis C beginning in 1999. During a September 2001 VA examination, the veteran identified a 1991 blood transfusion and a 1969 tattoo as primary risk factors of hepatitis C infection. The examiner stated that, because blood screening for hepatitis C was in use in 1990, it was less likely that the 1991 blood transfusion resulted in a hepatitis C infection. Contrastingly, the examiner opined that a 1969 in-service tattoo was more likely the risk factor of the disease. When, after careful consideration of all information and lay and medical evidence of record in a case, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, VA will resolve such doubt in favor of the claimant. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Reasonable doubt is defined as an approximate balance of positive and negative evidence that does not satisfactorily prove or disprove the claim. A VA examiner opined that it was more likely that the veteran incurred hepatitis C as a result of an in-service tattoo. Resolving all reasonable doubt in favor of the veteran, the Board finds that the veteran incurred hepatitis C in service, despite an absence of acute infection during the veteran's period of service. Consequently, service connection for hepatitis C is granted. ORDER Service connection for hepatitis C is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals This is not a tricky legal decision. It is strange that it wasn't denied. No doctors got do their "opine" thing. No drugs were involved , no unprotected sex. Nothing. The VET actually applied under what's referred to as an 1151 claim. That's the # for the statute(38 USC 1151) that says if you go to the VAMC, slip and fall down and get hurt, get medical attention and come down with HIV or HCV, or whatever - then you get SC for the VA screwup. Its like medical malpractice a la VA style. There is no big $4 mil. settlement, no new cadillac, skip the time share in Mexico. You top out @ $2527/mo for 100% if you're lucky. You won't see a lot of these 1151 claims after 1990ish because they started screening the Blood supply. But if you were in a VAMC for a transfusion during an operation, you can definitely win the SC with a doc. nexus. They won't even argue with you. VA might get a bad reputation if they started injuring the same VETS they were supposed to be healing.

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Date: 08/21/09

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Date: 08/21/09

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