Citation Nr: 1616758 Decision Date: 04/27/16 Archive Date: 05/04/16 DOCKET NO. 14-31 463A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for thoracolumbar arthritis. 2. Entitlement to service connection for right hip arthritis. 3. Entitlement to service connection for Hepatitis C. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant & L.C. ATTORNEY FOR THE BOARD J. Tittsworth, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from April 1970 to April 1972. This matter comes before the Board of Veterans' Appeals (Board) from an October 2013 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran testified at a travel board hearing before the undersigned in June 2015. A transcript of the hearing is of record. The Veteran's claims file has been converted from a paper file to an electronic file managed in the Veterans Benefits Management System (VBMS). There are also records in Virtual VA. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The evidence is evenly balanced regarding whether the Veteran's thoracolumbar arthritis was caused by an injury he sustained during active service. 2. The evidence is evenly balanced regarding whether the Veteran's right hip arthritis was caused by an injury he sustained during active service. 3. The evidence is evenly balanced regarding whether the Veteran's Hepatitis C was incurred in service. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, his thoracolumbar arthritis was incurred in active service. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). 2. Resolving reasonable doubt in favor of the Veteran, his right hip arthritis was incurred in active service. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). 3. Resolving reasonable doubt in favor of the Veteran, Hepatitis C was incurred in active service. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Since the entire benefit sought on appeal has been granted, no purpose would be served by undertaking an analysis of whether there has been compliance with the notice and duty to assist requirements set out at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2014)). See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49, 747 (1992). Analysis Establishing service connection generally requires medical or, in certain circumstances, lay evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and, (3) a nexus between the claimed in-service disease or injury and the present disorder. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran meets the requirement of a current disability in light of medical reports and VA examinations diagnosing thoracolumbar arthritis, right hip arthritis, and chronic Hepatitis C. Therefore, the Board must determine whether sufficient evidence exists establishing each disability is etiologically related service. The Veteran alleges his back and right hip arthritis is due to an injury during Special Forces training after parachuting from a 250 foot tower and crash landing on asphalt. In this regard, a June 2013 VA examiner opined it is less likely than not the Veteran's back condition was caused by the parachute injury. For his rationale, he explained the Veteran denied experiencing back pain during his separation examination, and medical records in June 1982 identify a back injury from lifting a hot water heater, rather than residuals of an in-service injury. With respect to the right hip, a November 2012 VA examiner recorded a history of an onset of symptoms in 1970 after an injury from jumping 250 feet. However, he ultimately opined any right hip arthritis is less likely as not related to the in-service injury because there were no complaints of right hip pain during service. Conversely, a positive nexus opinion has been submitted by the Veteran's private chiropractor with respect to both the back and right hip. In February 2015, Dr. C. stated he treated the Veteran from 1988 to 1992. He opined the Veteran's back and right hip problems are at least as likely as not the result of military training, and that the Veteran suffered from back and right hip problems "throughout his adult life." At his hearing, the Veteran testified credibly regarding the injury he sustained while in Special Forces training. He missed a landing spot while parachuting 250 feet and landed on asphalt, injuring his back and right hip. Following the injury, he felt pain and stiffness. See June 2015 Hearing Transcript P. 16-17. Although he was in considerable pain, the Veteran chose not to seek medical attention for fear of not completing training. Id. at 17. None of his post-military occupations involved heavy lifting. Id. at 26. A fellow soldier, "L.C.," testified that he participated in Special Forces training with the Veteran and witnessed the parachuting injury. L.C. testified that he observed the Veteran with a noticeable limp, and that he was wincing in pain following the injury. Id. at 19, 22-23. The Board finds the evidence is, at the very least, evenly balanced regarding whether the Veteran's back and right hip arthritis were incurred in service. The record contains one positive and one negative expert medical opinion with respect to the back and hip. Each physician is competent to opine as to the etiology of the Veteran's arthritis, and the Board affords each opinion similar weight. In addition to the medical evidence, the Veteran and L.C. both provided credible testimony corroborating the in-service occurrence, as well as the symptoms which resulted immediately following the injury, and thereafter. The lack of documentation of back or hip pain during service is not fatal to the Veteran's claim. In this respect, the Board finds it reasonable that a 19 year old soldier would resist seeking medical care for an injury during Special Forces training. With respect to the reference to a June 1982 back injury from lifting a water heater, based on the evidence, it is at least as likely as not this incident represents a manifestation (and not necessarily a cause) of the Veteran's back pain, particularly in light of Dr. C's statement the Veteran experienced back and hip pain throughout his entire adult life. By law, reasonable doubt resulting from the relative equipoise in the evidence is resolved in favor of the Veteran. Thus, service connection for both thoracolumbar and right hip arthritis is granted. 38 U.S.C.A. § 5107(b). With respect to his chronic Hepatitis C, the Veteran alleges he contracted the disease due to cross-contamination from an air gun used to perform vaccinations on 50 to 100 soldiers. He testified that the air gun drew visible blood from men who received the vaccinations immediately before him. See June 2015 Hearing Transcript P. 32. He also testified that he lived a conservative lifestyle during service, and he does not have tattoos or piercings. Id. at 30, 35. In a February 2013 statement, he explained he has not had sexual relations with Hepatitis C carriers. The Veteran received foreign blood only once during a 1996 bypass surgery, at a time when donor blood was likely screened for diseases. The Veteran was provided with two VA examinations regarding Hepatitis C. A November 2012 VA examiner confirmed the diagnosis of chronic Hepatitis C, but did not offer an opinion as to its etiology. Thus, the opinion has no probative value. In October 2013, a VA examiner opined it is less likely than not the Veteran's Hepatitis C is related to service, including as a result of air gun vaccinations. He states it is speculative to consider contraction of Hepatitis C in such a manner, and the Veteran's Hepatitis C more likely than not was contracted outside of military service. However, the examiner did not identify any post-service occurrences which caused the Veteran's Hepatitis C. Instead, he simply states there are other causes which have either "not been recognized, recalled or shared by the Veteran." While the October 2013 VA examiner is competent to opine as to the etiology of Hepatitis C generally, the Board does not find his opinions persuasive. While the examiner indicates it is speculative to consider contraction of Hepatitis C due to air gun vaccinations, he in turn speculates other causes not supported by the evidence. Despite the assertion of the October 2013 examiner, the Board finds the Veteran credible. Nothing in the record suggests he has either misrepresented or withheld relevant evidence at any point during the appeal. The Board believes the Veteran testified truthfully regarding his conservative lifestyle, and there are no other plausible explanations in the record for his Hepatitis C. Given that he personally witnessed an air gun drawing blood from 50-100 soldiers immediately before being vaccinated with the same air gun, the Board finds it is at least as likely as not cross contamination occurred, including the transmittal of the Hepatitis C virus. Because the evidence is evenly balanced, the Veteran is entitled to the benefit-of-the-doubt rule. Thus, service connection for Hepatitis C is granted. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for thoracolumbar arthritis is granted. Entitlement to service connection for right hip arthritis is granted. Entitlement to service connection for Hepatitis C is granted. ______________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs