jayrebb
Naxxramas 1.0 Raider
Citation Nr: 0531165
Decision Date: 11/18/05 Archive Date: 11/30/05
DOCKET NO. 05-05 278 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Reno, Nevada
THE ISSUE
Entitlement to service connection for Hepatitis C.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
D. M. Casula, Counsel
INTRODUCTION
The veteran had active service from July 1978 to May 1980.
This matter comes before the Board of Veterans' Appeals
(Board) from a November 2004 RO rating decision which denied
service connection for Hepatitis C. Pursuant to an October
2005 motion and the Board's granting thereof, this case has
been advanced on the Board's docket under 38 U.S.C.A. § 7107
(West 2002) and 38 C.F.R. § 20.900(c) (2005).
FINDING OF FACT
Hepatitis C is a result of receiving immunizations in service
by means of a multi-use jet gun injector.
CONCLUSION OF LAW
Hepatitis C was incurred in service. 38 U.S.C.A. § 1131
(West 2002); 38 C.F.R. § 3.102, 3.303 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
A. Duty to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and
3.326(a). In this case, in a letter dated in August 2004,
the veteran was notified of the duty to notify and assist
requirements of the VCAA. However, in light of the result
here (a full grant of the claim for service connection), the
Board finds that a detailed discussion of the VCAA is
unnecessary. Any potential failure of VA in fulfilling its
duties to notify and assist the veteran is essentially
harmless error.
B. Service Connection for Peripheral Neuropathy
Service connection may be granted for a disability resulting
from injury or disease incurred in or aggravated by active
service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303.
In this case, the veteran contends that he received
vaccinations in July 1978, upon entry into active duty, and
that these injections were given by a type of air injector
and were not sanitized between injections on recruits.
The pertinent evidence of record will be briefly summarized.
Service medical records show that the veteran received
several vaccinations and immunizations upon his entry into
service in July 1978. Service medical records show no high
risk activities other than on the veteran's entrance (and
separation) examinations it was noted that he had two tattoos
on his arms.
Post-service private treatment records show that Hepatitis C
was diagnosed in 2002, and that the veteran had elevated
liver function tests in the years prior to that.
In August 2004 the veteran submitted his responses to the
Risk Factors for Hepatitis C Questionnaire. He responded
"no" to intravenous drug use, intranasal cocaine use, high-
risk sexual activity, hemodialysis, sharing toothbrushes or
razor blades, having a blood transfusion, and having been a
healthcare worker. He indicated he had tattoos, but that he
did them himself with "indian ink" when he was 12 years old
and claimed he did not share any needles. He also claimed
that the only non-sterile needles he ever had were the air
injectors used in the Navy, and he also claimed that in the
Navy multi-dose bottles were used.
In a December 2004 letter, Dr. David Kohl, the veteran's
treating physician, opined that the veteran had Hepatitis C
"that likely was contracted when he received vaccinations
from multi-dose vials when he was in the Navy in [the] late
1970s". Dr. Kohl noted that the veteran reported he never
used intravenous drugs and had one tatoo that he had put on
his shoulder himself with a sewing needle.
In support of his claim the veteran has submitted several
documents pertaining to Hepatitis C, Hepatitis B, and the use
of multi-use jet injectors in service. In one document, a
June 2004 VBA fast letter, it was noted that the large
majority of Hepatitis C virus infections can be accounted for
by known modes of transmission, primarily transfusion of
blood products before 1992 and injection drug use. See VBA
Fast Letter 04-13 (June 29, 2004). The conclusion was that
despite the lack of any scientific evidence to document
transmission of the Hepatitis C virus with air gun
injections, it was "biologically plausible". The VBA fast
letter indicated that it is essential that the report upon
which the determination of service connection is made
included a full discussion of all modes of transmission, and
a rationale as to why the examiner believes the air gun was
the source of the veteran's Hepatitis C.
Received from the veteran in September 2005, along with a
waiver of initial review by the RO, was a September 2005
letter from a VA physician. (The record reflects that this
evidence was received beyond the 90 day period subsequent to
the RO's certification of the appeal to the Board. In
November 2005, however, the Board granted the veteran's
motion to have the Board accept new evidence and show good
cause as to why the evidence could not have been submitted
within the 90 day period. Therefore this evidence may be
considered by the Board herein.)
In the September 2005 letter, the VA physician noted that the
veteran was under her care and had been diagnosed with active
Hepatitis C since 2002, and that a review of his records
showed elevated liver function tests since 1987. It was
noted that the veteran denied a history of illicit drug use
or sexual promiscuity, and had never received any blood
transfusions. He had two small tattoos on his arms which he
administered himself as a child. It was also noted that the
veteran received immunizations by means of multi-use jet gun
injectors while in service. The VA physician indicated that
a review of the medical literature, including a report from
the CDC MMWR dated in June 1986, confirmed a high correlation
between this method of immunization and Hepatitis C infection
(the Board notes that this excerpt actually pertains to the
Hepatitis B virus). The VA physician also noted that a
review of a document from the Department of Defense -
Epidemiology Board dated in January 1998 strongly recommended
that multi-use jet gun injectors not be used because of the
risk of transmission of blood borne diseases. The VA
physician then opined that the veteran contracted Hepatitis C
"from the use of jet gun injector [sic] during his
vaccinations while in military service".
When all of the evidence is assembled, the Board must decide
whether the evidence supports the claim or is in relative
equipoise, with the veteran prevailing in either event.
Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990).
The Board notes that there are both private and VA medical
opinions of record which support the veteran's claim. The
Board also notes that there is no negative or contrary
evidence of record, other than the VBA Fast Letter 04-13
which concluded that there had been no case reports of the
Hepatitis C virus being transmitted by air gun transmission.
The conclusion in the VBA Fast Letter, however, as noted
above was that despite the lack of any scientific evidence to
document transmission of the Hepatitis C virus with air gun
injections, it was biologically plausible. Both the
veteran's private physician and the VA physician have
essentially excluded the usual risk factors as the etiology
of the veteran's Hepatitis C. Moreover, these opinions
contain information that is consistent with the evidence of
record, together with the reasoning for the opinion given.
Thus, given the positive medical evidence in support of the
veteran's claim and considering the entire evidence of
record, the Board will grant the claim. The Board finds that
the veteran's Hepatitis C was contracted in service as a
result of his receiving shots via a multi-use jet gun
injector, and therefore service connection for Hepatitis C is
warranted.
ORDER
Service connection for Hepatitis C is granted.
____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
Decision Date: 11/18/05 Archive Date: 11/30/05
DOCKET NO. 05-05 278 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Reno, Nevada
THE ISSUE
Entitlement to service connection for Hepatitis C.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
D. M. Casula, Counsel
INTRODUCTION
The veteran had active service from July 1978 to May 1980.
This matter comes before the Board of Veterans' Appeals
(Board) from a November 2004 RO rating decision which denied
service connection for Hepatitis C. Pursuant to an October
2005 motion and the Board's granting thereof, this case has
been advanced on the Board's docket under 38 U.S.C.A. § 7107
(West 2002) and 38 C.F.R. § 20.900(c) (2005).
FINDING OF FACT
Hepatitis C is a result of receiving immunizations in service
by means of a multi-use jet gun injector.
CONCLUSION OF LAW
Hepatitis C was incurred in service. 38 U.S.C.A. § 1131
(West 2002); 38 C.F.R. § 3.102, 3.303 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
A. Duty to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and
3.326(a). In this case, in a letter dated in August 2004,
the veteran was notified of the duty to notify and assist
requirements of the VCAA. However, in light of the result
here (a full grant of the claim for service connection), the
Board finds that a detailed discussion of the VCAA is
unnecessary. Any potential failure of VA in fulfilling its
duties to notify and assist the veteran is essentially
harmless error.
B. Service Connection for Peripheral Neuropathy
Service connection may be granted for a disability resulting
from injury or disease incurred in or aggravated by active
service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303.
In this case, the veteran contends that he received
vaccinations in July 1978, upon entry into active duty, and
that these injections were given by a type of air injector
and were not sanitized between injections on recruits.
The pertinent evidence of record will be briefly summarized.
Service medical records show that the veteran received
several vaccinations and immunizations upon his entry into
service in July 1978. Service medical records show no high
risk activities other than on the veteran's entrance (and
separation) examinations it was noted that he had two tattoos
on his arms.
Post-service private treatment records show that Hepatitis C
was diagnosed in 2002, and that the veteran had elevated
liver function tests in the years prior to that.
In August 2004 the veteran submitted his responses to the
Risk Factors for Hepatitis C Questionnaire. He responded
"no" to intravenous drug use, intranasal cocaine use, high-
risk sexual activity, hemodialysis, sharing toothbrushes or
razor blades, having a blood transfusion, and having been a
healthcare worker. He indicated he had tattoos, but that he
did them himself with "indian ink" when he was 12 years old
and claimed he did not share any needles. He also claimed
that the only non-sterile needles he ever had were the air
injectors used in the Navy, and he also claimed that in the
Navy multi-dose bottles were used.
In a December 2004 letter, Dr. David Kohl, the veteran's
treating physician, opined that the veteran had Hepatitis C
"that likely was contracted when he received vaccinations
from multi-dose vials when he was in the Navy in [the] late
1970s". Dr. Kohl noted that the veteran reported he never
used intravenous drugs and had one tatoo that he had put on
his shoulder himself with a sewing needle.
In support of his claim the veteran has submitted several
documents pertaining to Hepatitis C, Hepatitis B, and the use
of multi-use jet injectors in service. In one document, a
June 2004 VBA fast letter, it was noted that the large
majority of Hepatitis C virus infections can be accounted for
by known modes of transmission, primarily transfusion of
blood products before 1992 and injection drug use. See VBA
Fast Letter 04-13 (June 29, 2004). The conclusion was that
despite the lack of any scientific evidence to document
transmission of the Hepatitis C virus with air gun
injections, it was "biologically plausible". The VBA fast
letter indicated that it is essential that the report upon
which the determination of service connection is made
included a full discussion of all modes of transmission, and
a rationale as to why the examiner believes the air gun was
the source of the veteran's Hepatitis C.
Received from the veteran in September 2005, along with a
waiver of initial review by the RO, was a September 2005
letter from a VA physician. (The record reflects that this
evidence was received beyond the 90 day period subsequent to
the RO's certification of the appeal to the Board. In
November 2005, however, the Board granted the veteran's
motion to have the Board accept new evidence and show good
cause as to why the evidence could not have been submitted
within the 90 day period. Therefore this evidence may be
considered by the Board herein.)
In the September 2005 letter, the VA physician noted that the
veteran was under her care and had been diagnosed with active
Hepatitis C since 2002, and that a review of his records
showed elevated liver function tests since 1987. It was
noted that the veteran denied a history of illicit drug use
or sexual promiscuity, and had never received any blood
transfusions. He had two small tattoos on his arms which he
administered himself as a child. It was also noted that the
veteran received immunizations by means of multi-use jet gun
injectors while in service. The VA physician indicated that
a review of the medical literature, including a report from
the CDC MMWR dated in June 1986, confirmed a high correlation
between this method of immunization and Hepatitis C infection
(the Board notes that this excerpt actually pertains to the
Hepatitis B virus). The VA physician also noted that a
review of a document from the Department of Defense -
Epidemiology Board dated in January 1998 strongly recommended
that multi-use jet gun injectors not be used because of the
risk of transmission of blood borne diseases. The VA
physician then opined that the veteran contracted Hepatitis C
"from the use of jet gun injector [sic] during his
vaccinations while in military service".
When all of the evidence is assembled, the Board must decide
whether the evidence supports the claim or is in relative
equipoise, with the veteran prevailing in either event.
Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990).
The Board notes that there are both private and VA medical
opinions of record which support the veteran's claim. The
Board also notes that there is no negative or contrary
evidence of record, other than the VBA Fast Letter 04-13
which concluded that there had been no case reports of the
Hepatitis C virus being transmitted by air gun transmission.
The conclusion in the VBA Fast Letter, however, as noted
above was that despite the lack of any scientific evidence to
document transmission of the Hepatitis C virus with air gun
injections, it was biologically plausible. Both the
veteran's private physician and the VA physician have
essentially excluded the usual risk factors as the etiology
of the veteran's Hepatitis C. Moreover, these opinions
contain information that is consistent with the evidence of
record, together with the reasoning for the opinion given.
Thus, given the positive medical evidence in support of the
veteran's claim and considering the entire evidence of
record, the Board will grant the claim. The Board finds that
the veteran's Hepatitis C was contracted in service as a
result of his receiving shots via a multi-use jet gun
injector, and therefore service connection for Hepatitis C is
warranted.
ORDER
Service connection for Hepatitis C is granted.
____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs