Citation Nr: 1623406 Decision Date: 06/10/16 Archive Date: 06/21/16 DOCKET NO. 10-20 929 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for hepatitis C. 2. Entitlement to service connection for an acquired psychiatric disorder, to include depression and anxiety, claimed as directly due to service and as secondary to hepatitis C. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Eric Struening, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1975 to September 1977. These matters are before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Jurisdiction currently lies with the VA RO in North Little Rock, Arkansas. In February 2011, the Veteran testified at a hearing at the RO before the undersigned. A transcript of the hearing is associated with the claims file. In October 2013, the Board issued a decision denying both claims on appeal. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court), and in January 2015 pursuant to a Joint Motion for Remand, the Court vacated the October 2013 Board decision and remanded the Veteran's appeal to the Board. In March 2015 and October 2015, the Board remanded the case for further development. In April 2016, the Board sought an advisory medical opinion from the Veterans Health Administration (VHA). The case has now been returned to the Board for further review. The issue of service connection for an acquired psychiatric disorder, to include as secondary to hepatitis C is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The evidence is in relative equipoise as to whether the Veteran's hepatitis C is related to his active service. CONCLUSION OF LAW The criteria for service connection for hepatitis C have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.102, 3.303, 3.304 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Given the favorable action taken herein with regard to the issue of entitlement to service connection for hepatitis C, no further discussion of the VCAA is required. Legal Criteria, Factual Background, and Analysis Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R § 3.303. Service connection may be granted for a disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection, there must be evidence of: a current disability; incurrence or aggravation of a disease or injury in service; and a nexus between the disease or injury in service and the present disability. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss every piece of evidence. Gonzalez v. West, 218 F.3d 1378, 1380-91 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran was first diagnosed with hepatitis C in September 1990 by the Red Cross. He alleges that his hepatitis C was incurred in service as a result of inoculations he received via jet injector. Lay statements from C.T. and L.T., received in February 2011 (dated June 2010), describe that they did not witness the cleaning or even wiping off of microinjectors used to administer vaccinations before or after injections were completed. They reported having had blood on their arms and that the individuals before and after them also had blood on their arms. At the February 2011 hearing, the Veteran testified he also noticed blood running down both arms after he received injections. A December 2004 VA treatment note reflects that the Veteran reported a history of a risk factor of intranasal cocaine use in the 1970's, and that he quit using the drug 30 years ago. In an April 2016 VHA medical opinion, the consulting expert reported that he had reviewed the Veteran's claims file, including his statements and buddy statements regarding improper cleaning of microinjectors. He indicated that it is possible that intranasal cocaine use could transmit hepatitis C, but said he would not call it a "strong risk factor." He indicated that several studies, including ones submitted by the Veteran, raised questions as to the strength of the link between intranasal cocaine use and hepatitis C. The expert also indicated that the link between jet injector use and the Veteran's hepatitis C infection was no less clear than that of intranasal cocaine use because of various factors that could not be ascertained, such as who else was vaccinated prior to the Veteran and how repetitious his intranasal cocaine use was. He stated that his own opinion based on interviews of patients with and without hepatitis C and with or without a history of intranasal cocaine use was that the "jet injector is NOT as likely as intranasal cocaine [to cause hepatitis C] in this specific patient, but [he found] both routes plausible and no strong evidence to clearly decide one way or another." He indicated that setting a generalizable precedent regarding a link between jet injector usage and hepatitis C based on the information in the Veteran's case would be unwarranted. Although the VHA expert indicated jet injector vaccinations were not as likely as intranasal cocaine use to have caused hepatitis C, he also indicated that jet injector vaccinations and intranasal cocaine use were "both routes plausible" to cause hepatitis C and that there was "no strong evidence to clearly decide" which was the cause of the Veteran's hepatitis C. Given the equivocal nature of this opinion, the Board finds that the evidence is at least in equipoise that the Veteran's hepatitis C is related to his active military service. Resolving any doubt in the Veteran's favor, service connection for hepatitis C is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for hepatitis C is granted. REMAND As was noted in both the March 2015 and October 2015 Board remands, the claim for service connection for an acquired psychiatric disorder is inextricably intertwined with the issue of service connection for hepatitis C as the Veteran has alleged that it is secondary to hepatitis C. Harris v. Derwinski, 1 Vet. App. 180 (1991). Therefore, as the Board has granted the Veteran's claim for service connection for hepatitis C, there must be additional development on the claim for service connection for an acquired psychiatric disorder, and the Board must again remand the claim. Accordingly, the case is REMANDED for the following actions: 1. Ask the Veteran to identify the provider(s) of any and all evaluations and/or treatment he has received for any psychiatric disorders since September 2008, and to provide authorizations for VA to secure records of any such private treatment. Secure for the record complete clinical records of all pertinent treatment or evaluation (records of which are not already associated with the record) from the providers identified. If any records sought are unavailable, the reason for their unavailability must be noted in the record. If a private provider does not respond to the request for identified records sought, the Veteran must be so notified, and reminded that ultimately it is his responsibility to ensure that private treatment records are received. 2. Obtain the Veteran's VA treatment records from September 2012 to the present. 3. After completing the development requested in items 1 and 2 arrange for the Veteran to be examined by an appropriate psychologist or psychiatrist to determine the nature and likely etiology of any diagnosed psychiatric disorder. The entire claims file should be made available to the examiner in conjunction with this request. For each diagnosed psychiatric disorder, the examiner should provide opinions that respond to the following questions: a. Is it at least as likely as not (50 percent probability or greater) that any diagnosed psychiatric disorder is a result of or incurred during active service? b. Is it at least as likely as not (50 percent probability or greater) that any diagnosed psychiatric disorder is caused by service-connected hepatitis C? c. Is it at least as likely as not (50 percent probability or greater) that any diagnosed psychiatric disorder is aggravated (permanently increased in severity beyond the natural progress of the disorder) by service-connected hepatitis C? The examiner must include rationale with all opinions, and cite to supporting factual data and medical literature where appropriate. If the examiner cannot provide any requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 4. After undertaking any other development deemed appropriate, readjudicate the claim seeking service connection for an acquired psychiatric disorder. If the benefit sought is not granted, the Veteran and his representative should be provided with a supplemental statement of the case and afforded an opportunity to respond. Then return the case to the Board for further review if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ M. SORISIO Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs