Citation Nr: 1517212 Decision Date: 04/22/15 Archive Date: 04/24/15 DOCKET NO. 12-20 901A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Veteran represented by: Matthew D. Hill, Attorney at Law ATTORNEY FOR THE BOARD R. R. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1972 to January 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In his August 2012 VA Form 9 Appeal, the Veteran requested a hearing with the Board. In a letter dated in February 2015, the Veteran and his attorney withdrew this request for a Board hearing. FINDING OF FACT The Veteran's current hepatitis C is etiologically related to events during his active service. CONCLUSION OF LAW Hepatitis C was incurred in active service. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION In a February 2015 letter, the Veteran's attorney averred that the Veteran's currently diagnosed hepatitis C is etiologically related to active service. He stated that the Veteran was possibly exposed to hepatitis C in service on three occasions: air gun inoculations; a single use of intravenous drug use while stationed in Germany; and, "blood brother sharing" with a fellow soldier who subsequently died as a result of hepatocellular carcinoma. As an initial matter, the Board notes that the Veteran does not allege, and the evidence does not reflect, that the disability for which he claims entitlement to service connection is the result of participation in combat with the enemy. Therefore, the combat provisions of 38 U.S.C.A. § 1154 are not applicable. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and, (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In September 2010, the Veteran was afforded a VA examination to determine the nature and etiology of his claimed hepatitis C. At the examination, the Veteran reported that in 1998 he started losing weight, felt tired all of the time, and his skin became itchy. He went to the doctor and was found to have high liver enzymes. He was sent to a specialist and had a liver biopsy that indicated he had hepatitis C. The Veteran stated that while he was in service, he experimented with intravenous drug use and became blood brothers with a fellow soldier by mixing blood. The VA examiner confirmed the Veteran's diagnosis of hepatitis C and elaborated that he could not provide an etiological opinion without resorting to speculation. However, he added that testing for hepatitis C only became available after 1989, and that it was possible to have subclinical hepatitis C for many years without any symptoms. There are also private opinions of record. In April 2013, Dr. C. H. provided an opinion that the Veteran contracted hepatitis C from a blood brother ritual he performed in service. In support for his opinion, Dr. C. H. referred to the fellow service member's December 2011 death certificate, which indicated hepatocellular carcinoma as the cause of death. Dr. C. H. added that hepatocellular carcinoma is a known sequela of hepatitis C and that the Veteran had no other known risks or exposure to blood and body fluids with any other person known to have hepatitis C. In January 2015, Dr. P. S., a gastroenterologist with 30 years of experience, opined with a high degree of certainty that the Veteran's hepatitis C was incurred in active service, although he does not distinguish between the willful use of intravenous drugs and the other two potential sources for contraction of hepatitis C during service. The Board has also considered the Veteran's lay statements. The Veteran is competent to report that he did not have hepatitis C risk factors after service and that he was potentially exposed to hepatitis C in service. However, the Board must still weigh his lay statements against the medical evidence of record. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). In making this credibility determination, the Board finds the Veteran's statements to be credible. Additionally, the Board finds the Veteran's statements regarding his hepatitis C probative as they are consistent with the evidence of record. As the only nexus opinions of record are positive, the Board finds that the weight of the evidence supports the Veteran's claim for service connection for hepatitis C and service connection is warranted. ORDER Service connection for hepatitis C is granted. ______________________________________________ Nathan Kroes Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs