Citation Nr: 1140321 Decision Date: 10/31/11 Archive Date: 11/07/11 DOCKET NO. 09-10 140 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from August 1964 to August 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which denied the claim. The Veteran provided testimony at a hearing before the undersigned Veterans Law Judge in May 2011. A transcript of this hearing has been associated with the Veteran's VA claims folder. FINDINGS OF FACT 1. All reasonable notification and development necessary for the equitable disposition of the instant case have been completed. 2. The record reflects that it is at least as likely as not that the Veteran's hepatitis C is etiologically related to his active service. CONCLUSION OF LAW Service connection is warranted for the Veteran's hepatitis C. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303 (2011); VA Fast Letter 04-13 (June 29, 2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). For the reasons detailed below, the Board finds that service connection is warranted for the Veteran's hepatitis C. Therefore, no further discussion of the VCAA is warranted in this case as any deficiency has been rendered moot. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). 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, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West , 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent evidence to the effect that the claim is plausible. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As an initial matter, the Board notes that the Veteran's service treatment records do not reflect he was diagnosed with and/or treated for hepatitis C while on active duty. In fact, the record reflects he was first diagnosed with hepatitis C years after his separation from service. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (The normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim.). The Veteran essentially contends that his hepatitis C is due to air gun inoculations that he received while on active duty. In a VA "Fast Letter" issued in June 2004 (Fast Letter 04-13, June 29, 2004), VA noted that a rating decision had been issued that was apparently based on a statement incorrectly ascribed to a VA physician to the effect that persons who were inoculated with a jet injector were at risk of having hepatitis C. The Fast Letter then identified "key points" that included the fact that hepatitis C is spread primarily by contact with blood and blood products, with the highest prevalence of hepatitis C infection among those with repeated, direct percutaneous (through the skin) exposure to blood (i.e., intravenous drug users, recipients of blood transfusions before screening of the blood supply began in 1992, and hemophiliacs treated with clotting factor before 1987). Another "key point" was the fact that hepatitis C can potentially be transmitted with the reuse of needles for tattoos, body piercing, and acupuncture. The Fast Letter indicates, in its Conclusion section, that the large majority of hepatitis C infections can be accounted for by known modes of transmission, primarily transfusion of blood products before 1992, and injection drug use. It also noted that transmission of hepatitis C virus with air gun injections was "biologically plausible," notwithstanding the lack of any scientific evidence so documenting. It noted that it was "essential" that the report upon which the determination of service connection is made includes 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. In considering the Veteran's contentions, the Board notes that as hepatitis C is a condition that requires specific medical testing to diagnose, it is not the type of disability subject to lay observation pursuant to Jandreau, supra. Moreover, it is also the type of condition that requires competent medical evidence to determine the etiology thereof. Here, nothing on file shows that the Veteran has the requisite knowledge, skill, experience, training, or education to render a medical opinion. Consequently, his contentions cannot constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1). The Board does acknowledge, however, that he is competent, as a lay person, to testify that he received air gun inoculation during active service. Moreover, there does not appear to be any dispute that such action took place during active service. The Board also notes that a review of the Veteran's service treatment and post-service medical records do not indicate any of the other recognized risk factors for hepatitis C. For example, there is no indication he received a blood transfusion at any time during his lifetime. There is also no indication he has any tattoos, to include his August 1967 release from active duty examination, and the December 2007 VA medical examination conducted for the specific purpose of evaluating this claim. The VA examination further noted he had no history of IV drug use or cocaine use or any type of drug use. The Veteran has also submitted a private medical opinion dated in June 2009 in which the clinician stated that it was likely the hepatitis C was contracted due to the jet gun inoculation. In support of this opinion, the clinician noted, in part, that no other recognized risk factor was present in this case. The Board acknowledges that the December 2007 VA examiner opined that it was not likely that the Veteran's hepatitis C was the result of air gun injections. In support of this opinion, the examiner noted that such injections were not considered a likely source of hepatitis C. However, the examiner himself acknowledged that there had been some isolated episodes of hepatitis C associated with air gun injections, even though it had not been clearly established that air gun injections have actually been a cause of hepatitis C. Moreover, the examiner noted that there were no high risk factors in this particular Veteran's case that could be considered a possible cause of hepatitis C. In short, there appears to be no other possible cause of the Veteran's hepatitis C other than the in-service air gun inoculation(s). Both the December 2007 VA medical examination and the June 2009 private medical opinion have stated, in essence, that no other risk factors appear to be present. Moreover, even though both the December 2007 VA examiner and VA Fast Letter 04-13 indicate that such a cause is unlikely, it is also acknowledged that it is "biologically plausible," notwithstanding the lack of any scientific evidence so documenting. The Board also notes that in Alemany v. Brown, 9 Vet. App. 518 (1996), the United States Court of Appeals for Veterans Claims (Court) stated that in light of the benefit of the doubt provisions of 38 U.S.C.A. § 5107(b), an accurate determination of etiology is not a condition precedent to granting service connection; nor is "definite etiology" or "obvious etiology." Further, in Gilbert, supra, the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." In Gilbert the Court specifically stated that entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. Under the benefit of the doubt doctrine established by Congress, when the evidence is in relative equipoise, the law dictates that the appellant prevails. See also 38 C.F.R. § 3.102. This is particularly true in a case such as this where there are two contrary medical opinions, but both agree upon the same basic facts regarding a person's medical history. In view of the foregoing, the Board finds that the record reflects that it is at least as likely as not that the Veteran's hepatitis C is etiologically related to his active service. Resolving reasonable doubt in favor of the Veteran, the Board concludes service connection is warranted for his hepatitis C. ORDER Entitlement to service connection for hepatitis C is granted. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs