On appeal from the Department of Veterans Affairs (VA) Regional Office in Des Moines, Iowa
THE ISSUE
Entitlement to service connection for hepatitis C.
REPRESENTATION
Veteran represented by: Vietnam Veterans of America
WITNESSES AT HEARING ON APPEAL
The veteran and his wife
ATTORNEY FOR THE BOARD
Christopher Maynard, Counsel
INTRODUCTION
The veteran had active service from January 1970 to October
1971.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a March 2003 decision by the RO which
denied service connection for hepatitis C. A video
conference hearing before the undersigned member of the Board
was held in May 2006.
FINDING OF FACT
1. All evidence necessary for adjudication of this claim
have been obtained by VA.
2. It is at least as likely as not that the veteran's
hepatitis C is related to service.
CONCLUSIONS OF LAW
The veteran's hepatitis C was incurred in service. 38
U.S.C.A. §§ 1101, 1110, 5100, 5102, 5103, 5103A, 5106, 5107
(West 2002 & Supp 2006); 38 C.F.R. §§ 3.102, 3.159, 3.303
(2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
With respect to the veteran's claim, VA has met all statutory
and regulatory notice and duty to assist provisions. See
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126;
38 C.F.R. §§ 3.159, 3.326.
The United States Court of Appeals for Veterans Claims
(hereinafter, "the Court") held that upon receipt of an
application for service connection VA is required by law to
review the information and the evidence presented with the
claim and to provide the claimant with notice of what
information and evidence not previously provided, if any,
will assist in substantiating or is necessary to substantiate
the elements of the claim as reasonably contemplated by the
application. See Dingess/Hartman v. Nicholson, 19 Vet. App.
473 (2006). The Court held that such notice must include
notice that a disability rating and an effective date for the
award of benefits will be assigned if there is a favorable
disposition of the claim. Id.
VA law and regulations also indicate that part of notifying a
claimant of what is needed to substantiate a claim includes
notification as to what information and evidence VA will seek
to provide and what evidence the claimant is expected to
provide. Further, VA must ask the claimant to provide any
evidence in her or his possession that pertains to the claim.
38 U.S.C.A. § 5103 (West 2002 & Supp. 2006); 38 C.F.R.
§ 3.159(a)-(c) (2007); Pelegrini v. Principi, 18 Vet. App.
112, 120-21 (2004) (Pelegrini II).
Prior to initial adjudication of the veteran's claim, a
letter dated in December 2002, fully satisfied the duty to
notify provisions of VCAA. 38 U.S.C.A. § 5103; 38 C.F.R.
§ 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187
(2002). The veteran was notified of the evidence that was
needed to substantiate his claim and that VA would assist him
in obtaining evidence, but that it was ultimately his
responsibility to give VA any evidence pertaining to his
claim and to submit any evidence in his possession to VA.
See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004)
(Pelegrini II). The veteran's service medical records and
all VA and available private medical records identified by
him have been obtained and associated with the claims file.
The veteran was afforded a VA examination and testified at a
video conference hearing before the undersigned member of the
Board in May 2006. Based on a review of the claims file, the
Board finds that there is no indication in the record that
any additional evidence relevant to the issue to be decided
herein is available and not part of the claims file.
In summary, the veteran has been made aware of the
information and evidence necessary to substantiate his claim
and is familiar with the law and regulations pertaining to
the claim. See Desbrow v. Principi, 17 Vet. App. 207 (2004);
Valiao v. Principi, 17 Vet. App. 229, 232 (2003).
In light of the favorable decision herein, the Board finds
that any VA deficiency in complying with VCAA is harmless
error and that no useful purpose would be served by remanding
the appeal to the RO. Cf. Quartuccio v. Principi, 16 Vet.
App. 183 (2002); Mayfield v. Nicholson, 19 Vet. App. 103
(2005); rev'd on other grounds, 444 F.3d 1328 (Fed Cir.
2006); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991).
Accordingly, appellate review may proceed without prejudice
to the appellant. See Bernard v. Brown, 4 Vet. App. 384
(1993).
Service Connection: In General
Service connection may be granted if the evidence
demonstrates that a current disability resulted from an
injury or disease incurred or aggravated in active military
service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service
connection may be demonstrated either by showing direct
service incurrence or aggravation or by using applicable
presumptions, if available. Combee v. Brown, 34 F.3d 1039,
1043 (Fed. Cir. 1994).
Direct service connection requires a finding that there is a
current disability that has a definite relationship with an
injury or disease or some other manifestation of the
disability during service. Rabideau v. Derwinski, 2 Vet.
App. 141, 143 (1992); Cuevas v. Principi, 3 Vet. App. 542,
548 (1992).
A disorder may be service connected if the evidence of
record, regardless of its date, shows that the veteran had a
chronic disorder in service or during an applicable
presumptive period, and that he still has such a disorder.
38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-
95 (1997). Such evidence must be medical unless it relates
to a disorder that may be competently demonstrated by lay
observation. Savage, 10 Vet. App. at 495. For the 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, as distinguished from merely isolated
findings or a diagnosis including the word "chronic."
38 C.F.R. § 3.303(b).
Disorders diagnosed after discharge may still be service
connected if all the evidence, including pertinent service
records, establishes that the disorder was incurred in
service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d).
Where a veteran served 90 days or more during a period of war
or during peacetime service after December 31, 1946 and
cirrhosis of the liver manifests to a degree of 10 percent or
more within one year from date of termination of such
service, such disease shall be presumed to have been incurred
in or aggravated by service, even though there is no evidence
of such disease during the period of service. This
presumption is rebuttable by affirmative evidence to the
contrary. 38 U.S.C.A. §§ 1112, 1113 (West 2002); 38 C.F.R.
§§ 3.307, 3.309 (2007).
Hepatitis C
The veteran contends that his hepatitis C was most likely
contracted in service at the time of his appendectomy surgery
in Vietnam. At the video conference hearing in May 2006, the
veteran testified that he had no other risk factors for
contracting hepatitis C, i.e., has never been an intravenous
drug user, does not have any tattoos, has never had a blood
transfusion, and has been married to the same woman for over
30 years. It is argued that the fact that the veteran's
surgical wound got infected suggested that there was some
contamination present during the surgery. It is argued
further, that the veteran could have been exposed the
hepatitis C virus (HCV) from inoculations by jet air gun
injections during service. In either case, the veteran
believes that his hepatitis could only have been contracted
in service.
The service medical records showed that the veteran underwent
an appendectomy for acute appendicitis at the 85th Evacuation
Hospital in Vietnam on November 27, 1970. The surgical site
was reopened on December 1, due to an abscess formation and
the wound was allowed to heal by granulation. The veteran
was transferred to the USS Sanctuary on December 7, and the
wound was irrigated and dressed daily, and healed without
further complications. The veteran did not receive a blood
transfusion, and was discharged to duty on December 30, 1970.
The service medical records showed no further complaints,
treatment, or abnormalities referable to the appendectomy
site during service, nor were there any signs or symptoms
referable to any liver problems in service. The veteran
indicated that his health was good at the time of his
separation examination in October 1971, and no pertinent
abnormalities were noted on examination at that time.
The evidence of record shows that the veteran was seen for
intermittent epigastric pain beginning in 1998. Initially,
the veteran declined any invasive testing and was given a
trial of Prevacid. When seen in February 2001, liver
function tests were elevated, and the physician commented
that he believed the veteran's alcohol was contributing to
his liver disease. Laboratory studies in November 2001, were
positive for hepatitis C. The examiner indicated the
veteran's elevated liver function was most likely secondary
to his heavy alcohol intake.
When examined by VA in October 2004, the examiner indicated
that the claims file was reviewed and provided a detailed
description of the veteran's medical history. He discussed
the appendectomy surgery in service and noted that the
veteran did not receive a blood transfusion, and that all
laboratory studies for HCT were within normal limits. He
also noted that the veteran had a history of alcohol abuse,
and that he was first diagnosed with alcoholic hepatitis in
November 2001. The diagnoses included hepatitis C with
mildly elevated LFT's. The examiner opined that the
veteran's hepatitis was less likely than not related to
military service.
A VA medical opinion in August 2005, included a general
discussion of the findings of various studies on the subject
of risk factors for hepatitis C infection in veterans. The
studies indicated that while the incidence of hepatitis C was
higher in veterans, it had more to do with increased exposure
to the traditional risk factors rather than to the military
experience itself. The physician indicated that while there
was a slight risk of transmission of blood borne infections
(hepatitis B) with air gun administration of mass
vaccinations, the studies did not show an association with
HCV (hepatitis C virus). The physician concluded that the
etiology of the veteran's hepatitis C was unknown, but opined
that it was less likely as not (less than 50/50 probability),
related to service.
Subsequent to the videoconference hearing in May 2006, the
veteran submitted statements from four private doctors to the
effect that they believed that the veteran's hepatitis was
related to service. (The veteran waived RO consideration of
the additional evidence.) Dr. W. Z. Mehal, stated that he
believed the veteran acquired the hepatitis C virus infection
during his appendectomy surgery in service because of the
fact that his surgical wound became infected, and that this
suggested that the standard level of surgical care including
the use of sterile instruments was not met. Because the site
of the infection was in the wound and not the pelvis, he
believed that the infection was from a surgical instrument
and not the infected appendix. Dr. Mehal noted that the
veteran had no other high risk factors for HCV infection, and
opined that it was very likely that his hepatitis C was
related to the appendectomy surgery in service. Dr. Mehal
indicated that he had reviewed some 150 pages of the
veteran's medical records, including the reports from Dr. T
Johnson (doctor who diagnosed and treated the veteran for
hepatitis since 2001).
Dr. B. D. Cecil stated that he believed the veteran's
hepatitis C should be service-connected because his only risk
factor was military service, and that he could have been
infected from either poor sterilization of instruments during
the appendectomy, or with the jet gun injectors during
inoculations, or by the electric razors used to cut his hair
in service. Dr. Cecil indicated that he had reviewed the
veteran's service medical records.
Dr. J. S. Galati, noted that the veteran reported no
identifiable risk factors other than military service, and
that published reports indicated that there were occasional
inadvertent breakdowns in isolation/sterilization techniques
during the time frame of the veteran's appendectomy in
service that could have resulted in the transmission of blood
borne pathogens, including hepatitis C. Other possible risk
factors included multi-use "air gun" vaccinations. Dr.
Galati indicated that he reviewed the veteran's 30-year span
of medical records, including his service medical records.
Finally, an opinion from Dr. C. N. Bash was to the effect
that the veteran's only risk factor for the HCV was military
service and that he could have been infected from the surgery
or the jet air gun inoculation injections in service. He
concluded that the veteran's exposure to the hepatitis C
virus "equally likely" came via the jet vaccine injectors,
Southeast Asia environment, and the surgery in service.
While Dr. Bash was not able to definitively state which of
these three routes was the most likely route, he opined that
it was very likely that the veteran's virus infection was
obtained during service. Dr. Bash indicated that he reviewed
all of the veteran's records.
The Board recognizes that while there is no objective
evidence of HCV in service or until many years after
discharge from service, the veteran's only reported risk
factor for HCV infection was his appendectomy surgery in
service. The records showed that the veteran developed an
unexplained infection subsequent to the surgery, which a
liver specialist has opined was at least as likely as not the
source of his infection with HCV. While there are two
unfavorable VA opinions to the effect that the veteran's
hepatitis C was not related to service, neither examiner
offered any persuasive rationale for their conclusions. In
fact, the most recent opinion in August 2005, indicated that
the etiology of the veteran's hepatitis C was unknown. Thus,
the Board finds that the two VA opinions are of limited
probative value.
In contrast, the favorable opinions, particularly that of the
gastrointestinal specialist, Dr. M., provided a rational
explanation for the cause and affect of the surgery procedure
and subsequent infection in service, and offered a plausible
explanation for the etiology of the veteran's current
hepatitis C.
The evidence required to warrant a grant of disability
benefits does not have to be conclusive. The question is
whether the evidence supports the claim or is in relative
equipoise, with the veteran prevailing in either event, or
whether a fair preponderance of the evidence is against the
claim, in which case the claim is denied. 38 U.S.C.A.
§ 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).
Given the medical complexity of the facts in this case, there
is reasonable doubt as to the etiology and exact date of
onset of the veteran's hepatitis C. As there is medical
evidence of an unexplained infection from surgery in service
and opinions relating the veteran's current hepatitis C to
the event in service, the Board will resolve all reasonable
doubt in favor of the veteran. Accordingly, service
connection for hepatitis C is warranted.
ORDER
Service connection for hepatitis C is granted.
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals
Important Notice: Attached to this decision is a VA Form
that provides information concerning your rights to appeal
our decision. Due to recent changes in the law, some of the
information contained in the attached notice of appellate
rights form is no longer accurate concerning the ability to
pay attorneys and agents to represent you. Some additional
information follows that summarizes the current law. To the
extent that the information contained in the attached VA Form
conflicts with the summary below, please disregard the
information on the VA Form and instead rely upon the
following information:
Do I have to pay an attorney or agent to represent me?
An attorney or agent may charge a fee to represent you
after a notice of disagreement has been filed with
respect to your case, provided that the notice of
disagreement was filed on or after June 20, 2007. See
Veterans Benefits, Health Care, and Information
Technology Act of 2006, Pub. L. No. 109-461, 120 Stat.
3403 (2006). If the notice of disagreement was filed
before June 20, 2007, an attorney or accredited agent
may charge fees for services, but only after the Board
first issues a final decision in the case, and only if
the agent or attorney is hired within one year of the
Board's decision.
The notice of disagreement limitation does not apply to
fees charged, allowed, or paid for services provided
with respect to proceedings before a court. VA cannot
pay the fees of your attorney or agent, with the
exception of payment of fees out of past-due benefits
awarded to you on the basis of your claim when provided
for in a fee agreement.
VA is in the process of amending its regulations
governing representation of claimants for veterans'
benefits in order to implement the provisions of the new
law. More information concerning the regulation changes
and related matters can be obtained at
http://www1.va.gov/OGC (click on "Accreditation and
Recognition of Service Organizations").
Fee for VA home and small business loan cases: An
attorney or agent may charge you a reasonable fee for
services involving a VA home loan or small business
loan. For more information, read section 5904, title
38, United States Code.
Filing of Fee Agreements: In all cases, a copy of any
fee agreement between you and an attorney or accredited
agent must be sent to the Secretary at the following
address:
Office of the Chief Counsel for Policy (01C3)
Board of Veterans' Appeals
810 Vermont Avenue, NW,
Washington, DC 20420
Facsimile: (202) 565-5643
(When final regulations are published to implement the
requirements of the new law, fee agreements must be
filed with the VA Office of the General Counsel and not
the Board.)
