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From: Posted by NOD
Category: -
Date: 09/15/08
Citation Nr: 0600691 Decision Date: 01/09/06 Archive Date: 01/19/06 DOCKET NO. 03-00 736 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for Hepatitis C. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The veteran served on active duty from July 1970 to November 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, which, in pertinent part, denied the above claim. This matter was previously before the Board in January 2004, at which time it was remanded for additional development. It is now returned to the Board for appellate review. FINDINGS OF FACT 1. The veteran received a gunshot wound of the left lower extremity in combat during his period of service. 2. The veteran was diagnosed with viral hepatitis during his period of active service, which was determined to be in the line of duty. 3. The veteran had an intravenous drug addiction during service and for many years thereafter. 4. Competent medical evidence related Hepatitis C to the veteran's service. CONCLUSION OF LAW Resolving doubt in favor of the veteran, Hepatitis C was incurred as a result of active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2005); 38 C.F.R. § 3.303 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002 & Supp. 2005). In order to prevail on the issue of service connection for any particular disability, there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). When an injury or disease is alleged to have been incurred or aggravated in combat, such incurrence or aggravation may be shown by satisfactory lay evidence, consistent with the circumstances, conditions, or hardships of combat, even if there is no official record of the incident. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d) (2005). Under 38 U.S.C.A. 1154 (West 2002 & Supp. 2005), in the case of any veteran who engaged in combat with the enemy in active service during a period of war, VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service. See Collette v. Brown, 82 F.3d 389 (Fed.Cir. 1996). However, the reduced evidentiary burden only applies to the question of service incurrence, and not to the question of either current disability or nexus to service, both of which generally require competent medical evidence. See generally, Brock v. Brown, 10 Vet. App. 155, 162 (1997); Libertine v. Brown, 9 Vet. App. 521 (1996); Beausoleil v. Brown, 8 Vet. App. 459, 464 (1996). 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. The veteran's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) indicates that his military occupational specialty was light weapons infantryman. This document also indicates that the veteran is in receipt of the Purple Heart, the Vietnam Campaign Medal, and the Vietnam Service Medal. He is credited with service in Vietnam from January 1971 to October 1971. The veteran's service medical records dated in from February 1971 to April 1971 show that he was treated for symptoms associated with a through and through gunshot wound of the left lower extremity in the left popliteal area. The records show that the veteran had an open wound of the left leg, with no nerve, bone, or arterial involvement. The wound was debrided under general anesthesia. Nursing notes from February 1971 show that during surgery, he received multiple infusions of Ringer's lactate as a result of blood loss. Additionally, doctor's orders show that 1000 cc of dextrose with water and "10 ml units P" were ordered dispensed per IV prior to discharge/evacuation. Service records dated in September 1971 show that the veteran was diagnosed with viral hepatitis. He was also shown to have a seven month history of intravenous heroin addiction. A Formal Line of Duty Investigation ensued and service medical record dated in December 1971 concluded that it was impossible to substantiate drug abuse as the definite etiology of the viral hepatitis, although this was likely. Two separate diagnoses could be made if there was medical evidence to substantiate drug abuse plus withdrawal symptoms. A Final Line of Duty Determination was made in February 1972 which concluded that the veteran's viral hepatitis, drug abuse, and withdrawal were in the line of duty. Subsequent to service, a VA hospital treatment record dated in April 1998 shows that the veteran, in pertinent part, reported a history of Hepatitis C. Outpatient treatment records from the Mid Valley Medical Group dated in May 1998 shows that the veteran was assessed, in pertinent part, with chronic hepatitis. A private medical record from J. Wallin, M.S., CADC II, dated in August 1998 shows that the veteran provided a history of Hepatitis contracted while in Vietnam. A pathology report from the Lebanon Community Hospital dated in August 1998 shows that the veteran was diagnosed with chronic hepatitis, grade 2, Stage I. A letter from A. N. Blake, M.D., dated in November 1999 shows that the veteran had been diagnosed with chronic hepatitis C and was being treated with antiviral therapy. The physician opined that it was quite likely that the veteran had contracted the hepatitis C while in the service. A subsequent note from Dr. Blake dated in December 1999 shows that the veteran contracted viral hepatitis in 1971 while in the service, which was as likely as not the same infection as his current hepatitis C. A VA examination report dated in September 2002 shows that the examiner reviewed the veteran's claims folder in conjunction with conducting the examination. He described the veteran as being in service from 1970 to 1971 and that he had been an intravenous heroin addict for part of that time. He reported a couple of episodes where he had jaundice. Service medical records indicated that he had viral hepatitis. The actual laboratory work documenting the specific serology could not be found. The veteran reported intravenous heroin use for a number of years, and medical records indicated that the last time he used heroin was in 1993. He had not had any transfusions or dialysis or organ transplants. He did have a gunshot wound to the leg, but there was no record of need for a transfusion associated with that. He also had two hernia operations, and those normally would not be expected to have any transfusions associated with them. The diagnosis revealed that the hepatitis C appeared not to be clinically active at this time, and that it was more probable than not from intravenous heroin use. Whether this use occurred while in service or after could not be determined. The examiner explained that, in general, hepatitis A and B will have an acute illness, but hepatitis C was not so likely to have an acute illness, making it somewhat less likely that the hepatitis which was documented in the service medical records was from the hepatitis C. However, it certainly was possible that he did get the hepatitis C from heroin use while in service, or it could have been from heroin use or cocaine use subsequently. He also did have a number of tattoos and left ear pierced for body piercings, and he thought there may have been shared razors or toothbrushes while in service as well. Of the risk factors which he has had, clearly the intravenous heroin use would be the most probable etiology. It was probably about equally probable that he got it from his intravenous heroin use while he was in the service versus that while he was out of service. An addendum to the September 2002 VA examination report dated in August 2005 shows that the examiner again reviewed the veteran's claims folder in conjunction with formulating his opinion. Medical records from the veteran's gunshot wound to the left thigh dated in February 1971, showed that the veteran had a surgical debridement under general anesthesia, with cleaning of the site, and with no nerve or artery involvement. The box on that form regarding transfusions, initially was marked no and then changed to unknown. The examiner indicated that given that there was no artery involvement, it was definitely significant less than 50 percent probability that the veteran did in fact received a transfusion. The examiner continued that the veteran subsequently did have ongoing intravenous drug abuse which was documented on several occasions, followed by hospitalization for detox or drug withdrawal. The examiner opined that based on review of the actual medical records, which indicated there was no damage to the arteries or veins; it was very unlikely that there actually was a blood transfusion in service. But if the veteran did have a blood transfusion in service, then the blood transfusion was the most probable cause of his hepatitis C. Of the various risk factors for hepatitis C transmission, ones in which external contamination is directly injected into the blood system are the highest risks and if in fact, the veteran had a blood transfusion, that involved injection into the blood stream of substantial volume of another person's blood, it would be the strongest risk factor. So, if in fact it is assumed that, even though the medical record makes it quite unlikely, that the veteran did have a blood transfusion in service, then that is the most probable cause of his contracting the hepatitis C and in that case, it is as probable as not that the hepatitis hospitalization that the veteran had in September of 1971 did represent the initial onset of hepatitis C. The veteran's next strongest risk factor for contacting hepatitis C would have been his intravenous drug use. This is the other risk factor involving direct injection into the blood stream of material from outside the body. Review of the medical notes from the time of the hospitalization of his hepatitis indicated it was believed to be a serum hepatitis, which could have been a hepatitis B or hepatitis C. The veteran does have antibodies for hepatitis B and it is not known whether those antibodies were from hepatitis B infection at that time when the veteran was in the service or some subsequent exposure to hepatitis B antigen, and material to elucidate this in the claims folder could not be found. Clearly the veteran could have had hepatitis B at that time as well or rather than hepatitis C at that time, and could have gotten the hepatitis C at a later time. However, if we are to go against the probabilities of the actual medical records and assume that the veteran actually did have a blood transfusion even though it seems highly improbable, then that transfusion would in fact be the most probable source of infection with hepatitis C and the probable as not onset of the hepatitis C would have been that hospitalization for hepatitis, September of 1971. So, in summary, if in fact, we must assume that the veteran underwent a blood transfusion even though the evidence mitigates against it, then there is at least a 50 percent probability that his current hepatitis C was related to that in-service blood transfusion. The Board finds that while the evidence is not clear as to whether the veteran did have a blood transfusion during service, there is an indication that he was infused with Ringer's lactate in conjunction with the gunshot wound which is indicative of treatment for blood loss. As a combat veteran, he has asserted that he did, in fact, receive blood in conjunction with treatment for his inservice gunshot wound. Notwithstanding the fact that there is no official record of actual blood infusion, the possibility exists that such did occur consistent with the circumstances of such an injury. Furthermore, if it is assumed that the veteran did receive blood as a result of treatment for a gunshot wound in service, the VA examiner in August 2005 has conceded that the transfusion would in fact be the most probable source of infection with hepatitis C and the probable as not onset of the hepatitis C would have been that hospitalization for hepatitis in September of 1971. Resolving reasonable doubt in the veteran's favor, the Board concludes that the veteran's statements, and the VA physician's opinion linking a possible transfusion in service to current hepatitis C, provide sufficient support to grant the veteran's claim for service connection for hepatitis C. The Board has considered the fact that the veteran was an 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 alcohol or drugs. 38 C.F.R. §§ 3.1(n), 3.301 (2005). However, the provisions of 38 U.S.C.A. § 105 establish a presumption in favor of finding that a veteran acted in the line of duty. In order to deny a claim based on a finding of willful misconduct, a preponderance of the evidence must support such a finding. Smith v. Derwinski, 2 Vet. App. 241, 244 (1992). In this regard, the December 1971 Formal Line of Duty Investigation concluded that it was impossible to substantiate drug abuse as the definite etiology of the veteran's viral hepatitis. In light of this finding, coupled with the fact that the veteran sustained a gunshot wound in service wherein it is reasonable to assume that he experienced blood loss, the preponderance of the evidence does not support a finding that the veteran's hepatitis was the result of willful misconduct. Therefore, resolving all reasonable doubt in favor of the veteran, the Board concludes that the veteran likely incurred hepatitis C while on active duty in Vietnam. See Ashley v. Brown, 6 Vet. App. 52, 59 (1993), citing 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (under the "benefit- of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the veteran shall prevail upon the issue); see also 38 U.S.C.A. § 1154. Accordingly, service connection for hepatitis C is granted. The Board has considered the veteran's claim with respect to the Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5100 et. seq. (West 2002). Given the favorable outcome as noted above, no conceivable prejudice to the veteran could result from this adjudication. See Bernard v. Brown, 4 Vet. App. 384, 393 (1993). Thus, the additional delay in the adjudication of this issue which would result from a remand solely to allow the RO to apply the VCAA would not be justified. VA has a duty to assist the veteran in the development of facts pertinent to his claim. ORDER Entitlement to service connection for Hepatitis C is granted. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Seems like Women VLJs are more forgiving of VETs with HCV. I don't think this Vet should have had to go thru the appeals process. He's a war hero with a Purple Heart. How many of you guys have been shot? Trust me, it hurts . Take a 28 ounce waffle headed framing hammer and hit any finger as hard as you can to get a general idea. Or drop on by my place, sign a hold harmless agreement and I'll prove it. This is also a decision that says if you are a Combat Veteran(and this Vet undoubted was), your testimony is accepted without need for corroboration. If you get shot they believe you! Mighty big of them.
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