Veteranclaims’s Blog

September 17, 2010

Hepatitis C, Medical Opinions, Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008)

We are presenting this Memorandum Decision for its quotes in regard to Hepatitis C and medical opinions:

“In this case, the Board placed a great deal of emphasis on the fact that
the appellant’s service medical records did not reflect that he contracted hepatitis C during service and that he was not diagnosed with that condition until 2005. The Board stated that “[t]his period without complaints or treatment is evidence that there has not been a continuity of symptomatology, and it weighs heavily against the claim herein.” R. at 9. While this reasoning may have validity in many cases,
it is inappropriate in this case. The uncontradicted evidence of record is
that no definitive test existed for the hepatitis C virus until approximately 1992, which explains why blood transfusions were a significant cause of infection prior to that date. Moreover, the CDC states: “An estimated 3.2 million persons in the United States have chronic hepatitis C virus infection. Most people do not know they are infected because they don’t look or feel sick.” R. at 26. Thus, the Board has not adequately explained why the delayed presentation of symptoms leading to the appellant’s diagnosis of hepatitis C is a significant factor weighing against his claim.
The Board also relied heavily on an August 2007 VA medical examination
report. The Court notes that “a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned explanation connecting the two.” Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008). In fact, “[n]either a VA medical examination report nor a private medical opinion is entitled to any weight in a service-connection or rating context if it contains only data and conclusions.” Id. at 304.”
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 09-1267
WAYNE R. BARTON, APPELLANT,
v.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before DAVIS, Judge.

MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

DAVIS, Judge: U.S. Army veteran Wayne R. Barton appeals through counsel
from a
February 23, 2009, Board of Veterans’ Appeals (Board) decision that denied
service connection for
hepatitis C. For the following reasons, the Court will set aside the
Board’s February 2009 decision
and remand for readjudication to include a new medical opinion.
The appellant had active service from July 1975 to July 1978. In 2005 he
was diagnosed
with hepatitis C, a viral form of liver disease. He believes that he
contracted this condition from
mass innoculations during service, which were administered with air gun
injectors.
On appeal, Mr. Barton makes two related arguments. He asserts that the VA
medical
examiner, on whose report the Board relied, failed to articulate
sufficient medical reasoning to
support his opinion. Consequently, the appellant reasons, the Board failed
to provide a sufficient
statement of reasons or bases for its decision.
I. ANALYSIS
Generally, in order to obtain service connection for any condition, “the
veteran must show:
(1) the existence of a present disability; (2) in-service incurrence or
aggravation of a disease or
injury; and (3) a causal relationship between the present disability and
the disease or injury incurred

or aggravated during service.” Previous DocumentSheddenNext Hit v. Principi, 381 F.3d 1163, 1166-
67 (Fed. Cir. 2004). In
this case, the VA examiner concurred with previous diagnoses of hepatitis
C and the Board does not
seem to dispute that the appellant has this condition. Rather, the Board
found the evidence lacking
for the second and third Previous HitSheddenNext Document requirements.
The Court’s review of the record reveals some evidence that is favorable
to the appellant’s
theory that he contracted hepatitis C through air gun injections during
military service. As shown
below, the evidence indicates that there is some probability that the
hepatitis C virus could be
transmitted by air gun injections and that there are no other obvious risk
factors in the appellant’s
medical history.
The record contains an assessment by a VA physician that the appellant ”
has no obvious
potential risk factors except for history of mass immunization.” Record (R
.) at 40. The documents
before the Court repeatedly state that the primary risk factors are
intravenous drug use, tattoos and
body piercing, transfusions or organ transplants before 1992, and, on rare
occasions, sexual
transmission. Although the appellant admits to marijuana usage, there is
no evidence that he ever
used intravenous drugs. The appellant states that he has no tattoos, and
despite specific instructions
to the VA examiner to search for tattoos, none are indicated on the VA
medical examination report.
The appellant reports four sexual partners during his lifetime, which
include one partner while he
was stationed in Germany and a wife of 20 years. As confirmed by testing,
the appellant’s wife was
never infected with the hepatitis C virus. Moreover, the Website of the
Centers for Disease Control
and Prevention (CDC) statesthat”theriskoftransmission from sexual contact
is believed to be low.”
R. at 27.
Furthermore, a VA document of record indicates that transmission of the
hepatitis C virus
by air gun injections is “biologically plausible.” R. at 33. The same
document states that there is
at least one confirmed case of transmission of hepatitis B by airgun
injection, although “there have
been no case reports of [hepatitis C] being transmitted by airgun
injection.” Id.
Thus, this case reduces to an examination of the reasons that the Board
rejected the
appellant’s theory of service connection by air gun injection. In the
Court’s view, the Board’s
explanation is inadequate.
2

The Board must include in its decision a written statement of the reasons
or bases for its
findings and conclusions on all material issues of fact and law presented
on the record. That
statement must be adequate to enable an appellant to understand the
precise basis for the Board’s
decision and to facilitate informed review in this Court. See 38 U.S.C. §
7104(d)(1); Allday
v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49,
56-57 (1990). To
comply with this requirement, the Board must analyze the credibility and
probative value of the
evidence, account for the evidence that it finds persuasive or
unpersuasive, and provide the reasons
for its rejection of anymaterial evidence favorable to the claimant. See
Caluza v. Brown, 7 Vet.App.
498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table);
Gabrielson v. Brown,
7 Vet.App. 36, 39-40 (1994); Gilbert, supra.
In this case, the Board placed a great deal of emphasis on the fact that
the appellant’s service
medical records did not reflect that he contracted hepatitis C during
service and that he was not
diagnosed with that condition until 2005. The Board stated that “[t]his
period without complaints
or treatment is evidence that there has not been a continuity of
symptomatology, and it weighs
heavily against the claim herein.” R. at 9. While this reasoning may have
validity in many cases,
it is inappropriate in this case. The uncontradicted evidence of record is
that no definitive test
existed for the hepatitis C virus until approximately 1992, which explains
why blood transfusions
were a significant cause of infection prior to that date. Moreover, the
CDC states: “An estimated 3.2
million persons in the United States have chronic hepatitis C virus
infection. Most people do not
know they are infected because they don’t look or feel sick.” R. at 26.
Thus, the Board has not
adequatelyexplained whythe delayed presentation of symptoms leading to the
appellant’s diagnosis
of hepatitis C is a significant factor weighing against his claim.
The Board also relied heavilyon an August 2007 VA medical examination
report. The Court
notes that “a medical examination report must contain not only clear
conclusions with supporting
data, but also a reasoned explanation connecting the two.” Nieves-
Rodriguez v. Peake, 22 Vet.App.
295, 301 (2008). In fact, “[n]either a VA medical examination report nor a
private medical opinion
is entitled to any weight in a service-connection or rating context if it
contains only data and
conclusions.” Id. at 304.
In this instance, the most significant portion of the report reads as
follows:
3

Ihave reviewed the veteran’s C-File and the documentation that he has
included from
the [I]nternet. It is evident that there is selective citation of []
wording [suggesting
the possibility] of immunization injectors, auto injectors, being
implicated in
hepatitis C transmission. However, in mymedical review of this it
clearlystates that
this is controversial and that recent studies have not confirmed this. At
the present
time, the VA does not presumptively assume that because somebody was in
the
service and may have received air gun injections for immunizations that
that is the
presumptive cause of their hepatitis C. In my medical opinion, this
veteran is most
likely to have other reasons for his hepatitis C. He does show evidence of
some
suspicion of heavy alcohol use as well as marijuana use as well as other
factors such
as having had venereal warts that suggest he may have had another
lifestyle that
would predispose him to hepatitis C and that it was not his immunizations
that
caused this.
R. at 237. Although the examiner’s pronoun references are a bit unclear,
the Secretary argues that
“the examiner noted that the articles [submitted by the appellant] clearly
stated that they were
controversial and that recent studies have not confirmed such a
relationship.” Secretary’s Brief at
5. In the absence of any citation to other medical articles or authorities,
the Court will accept the
Secretary’s reading of the examination report.
If the examiner intended to ground his remarks in the articles submitted
by the appellant,
however, the record does not bear him out. None of the Internet documents
in the record before the
Court acknowledge that the subject of infection by air gun injections is
controversial or that recent
research has tended away from that conclusion. In the absence of citation
to any other medical
authority, it is not clear how the examiner derived these views. See
Miller v. West, 11 Vet.App. 345,
348 (1998) (“A bare conclusion, even one reached by a health care
professional, is not probative
without a factual predicate in the record.”).
Furthermore, the issue is not whether the link between air gun usage and
hepatitis C infection
has reached the stage of a regulatory presumption. Rather, the issue is
the likelihood that the
appellant contracted the disease through air gun innoculation as opposed
to some other method. The
appellant’s evidence must only prove that it is at least as likely as not
that he contracted the disease
by air gun injection in service. See 38 U.S.C. § 5107(b). So far as the
record reveals, the examiner
undertook no study to assess the relative probability that the appellant
may have contracted the
disease in this manner.
4

Thebalanceoftheexaminer’sopinionpartakesmoreofinnuendoandspeculationthanit
of medical analysis. Although alcohol consumption can cause liver
inflammation, it is not a factor
in causing hepatitis C. See R. at 23. There is also no evidence of record
that marijuana usage is
connected with liver disease of any kind, much less hepatitis C. The
examiner is essentially
speculating that because the appellant may have engaged in questionable
judgment in some aspects
of his life, it becomes probable that his “lifestyle” included intravenous
drug use, of which there is
not a shred of evidence.
The only portion of the examiner’s reasoning that may have some validity
is the notion that
multiplesex partners,leadingat somepoint to “venereal warts,”mayhavealso
caused theappellant’s
hepatitis C. The evidence is uniform, however, that the probability of
such occurrences is rare and
of low probability. The examiner does not even attempt to assess this
probability, however, or
compare it to the probability of contraction by air gun injection.
Therefore,theexaminer’sreasoningisinadequateto support
theBoard’sstatementofreasons
or bases. The Court will therefore remand the matter for a more thorough
medical treatment of the
issue presented in this appeal. See Barr v. Nicholson, 21 Vet.App. 303,
311 (2007) (“[O]nce the
Secretary undertakes the effort to provide an examination when developing
a service-connection
claim . . . he must provide an adequate one or, at a minimum, notify the
claimant why one will not
or cannot be provided.”).
The Court notes that much of the appellant’s submissions from a veterans
Website are
summaries of studies and ongoing developments in hepatitis C matters.
These summaries are not
medical evidence, as the underlying articles themselves might be.
Therefore, the appellant cannot
prevail on the service connection issue on the present record. There must
be medical evidence of
nexus between the present disability and the mass innoculations during
service.
On remand, the appellant will be free to submit additional evidence and
argument in support
of his claim and the Board is required to consider any such evidence and
argument. See Kay v.
Principi, 16 Vet.App. 529, 534 (2002). A final Board decision following
the remand herein ordered
will constitute a new decision that, if adverse, maybe appealed to this
Court upon the filing of a new
Notice of Appeal with the Court not later than 120 days after the date on
which notice of the Board’s
new final decision is mailed to the appellant. Marsh v. West, 11 Vet.App.
468, 472 (1998).
5

II. CONCLUSION
On consideration of the foregoing, the Court SETS ASIDE the February 23,
2009, Board
decision and REMANDS the matter for further proceedings consistent with
this decision.
DATED: August 31, 2010
Copies to:
Jeffrey J. Bunten, Esq.
VA General Counsel (027)
6

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