Citation Nr: 1628584 Decision Date: 07/18/16 Archive Date: 07/28/16 DOCKET NO. 11-33 468 ) 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: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Trickey, Associate Counsel INTRODUCTION Veteran served on active duty from October 1966 to September 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In June 2015, the Veteran testified at a Board hearing held at the RO before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the Veteran's record. The claim was remanded in October 2015 and has been properly returned to the Board. FINDINGS OF FACT The evidence of record is in relative equipoise as to whether the Veteran's hepatitis C was related to his active service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, 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 FINDING AND CONCLUSION The Veterans Clams Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). To the extent that the action taken hereinbelow is favorable to the Veteran, further discussion of VCAA is not necessary at this time. Wensch v. Principi, 15 Vet. App. 362, 367-368 (2001). Law and Regulations Veterans are entitled to compensation from the DVA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C.A. § 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a 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"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2015). Analysis The Veteran contends that his hepatitis C was incurred in service, specifically, that this disease was contracted due to immunizations while on active duty performed with a "jet air gun." The Veteran has provided support for his contention, noting the findings that it is "biologically plausible" that in-service air gun inoculations may be a transmitter of hepatitis C. See VBA Fast Letter 04-13 (June 29, 2004). Here, the Board notes that it is uncontested that the Veteran had a diagnosis of hepatitis C during the pendency of the appeal. In April 2010, the Veteran was afforded a VA examination in connection with his claim for service connection for hepatitis C. The April 2010 VA examiner noted that the Veteran did not have a post-service history of risk factors for the development of hepatitis C, such as transfusion, promiscuity, intravenous drug use, prison, tattoos, body piercing, nasal cocaine, sharing razors or toothbrushes, or a high-risk occupation. The examiner indicated that only one risk factor, having been struck or cut with a bloody object, applied to the Veteran per his history (granting that the injector may have been bloody). Ultimately, the April 2010 the examiner found that they could not provide an opinion without resort to mere speculation. Following a June 2015 hearing before the undersigned, the claim was remanded and the Veteran was afforded an additional VA examination in January 2016. The January 2016 VA examiner also was unable to provide an opinion on the etiology of the Veteran's hepatitis C without resort to mere speculation. She indicated that while transmission of Hepatitis C by airgun injectors was a theoretical possibility, there was no objective evidence that use of airgun injections does or has transmitted Hepatitis C. The examiner noted that prior risk factors may have been forgotten. In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The Board notes that the April 2010 and January 2016 VA examiners did not identify non-service related risk factors for the development of hepatitis C. Additionally, the Veteran has provided competent and credible testimony of receiving "jet air gun" immunizations in service that are recognized by VA as a "biologically plausible" means of transmitting hepatitis C. The 2010 examiner also noted that with regard to the most commonly identified risk factors, only one applied to the Veteran, assuming that the injector may have been bloody. Accordingly, while the examiner indicated that an opinion could not be provided without resorting to speculation, the examiner's explanation for the opinion appears to indicate that it is at least as likely as not that hepatitis C is related to the one commonly known risk factor the Veteran experienced. The Board finds no reason to doubt the Veteran's statements as to having been exposed to blood during the injection. Having found the Veteran's testimony credible, including as to the "jet air gun" immunizations in service, and after reviewing the medical opinions, the Board finds that the evidence of record is in relative equipoise as to whether the Veteran's hepatitis C was related to his active service. Resolving reasonable doubt in the Veteran's favor, entitlement to service connection for hepatitis C is warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). ORDER Service connection for hepatitis C is granted. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs