Citation Nr: 1637167	
Decision Date: 09/22/16    Archive Date: 09/30/16

DOCKET NO.  15-35 802	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Baltimore, Maryland


THE ISSUE

Entitlement to service connection for hepatitis C.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

S. Mishalanie, Counsel


INTRODUCTION

The Veteran served on active duty from November 1975 to January 1977 in the United States Air Force. 

This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. 

In June 2016, the Veteran testified before the undersigned Veterans Law Judge.  A transcript of the hearing is of record.

The Veteran has also appealed the issues of entitlement to service connection for depression, headaches, a skin disorder, sleep apnea, and fibromyalgia.  See March 2016 Statement of the Case, and March 2016 VA Form 9.  The RO, however, has not yet certified these issues to the Board, indicating that additional development may be ongoing.  Therefore, the Board will not take jurisdiction of these issues at this time.

This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems.  Accordingly, any future consideration of this Veteran's case must take into account the existence of these electronic records.

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).


FINDING OF FACT

The evidence is at least in relative equipoise on the question of whether the Veteran's hepatitis C was incurred during his active duty service.


CONCLUSION OF LAW

Hepatitis C was incurred during active duty service.  38 U.S. C .A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran asserts that his hepatitis C was incurred during active duty.  After careful consideration of the medical and lay evidence, and resolving reasonable doubt in his favor, the Board finds that service connection is warranted.

Service connection may be granted 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(a).  Service connection generally requires evidence satisfying three criteria:  (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the disease or injury incurred or aggravated during service.  Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). 

Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107 (b). 

The evidence of record establishes that the Veteran has a current disability.  He was diagnosed with hepatitis C in 2007 through routine blood donor testing.  See February 2007 correspondence.

In addition, the Veteran has identified several possible risk factors for hepatitis C in service, including the use of multi-use air guns for vaccinations and the sharing of razors.  The Veteran's service treatment records are negative for any complaint, treatment, or diagnosis relating to hepatitis C.  (The Board notes that the hepatitis C virus was not discovered until the 1980s.)  Moreover, there is no post-service risk factor identified or even suggested in the record.  In fact, the Veteran has been consistent in all of his statements, including those made at the time of his diagnosis.  Thus, although there may be doubt as to whether he was actually exposed to hepatitis C in service, the Board finds the Veteran's testimony credible based on the available evidence of record. 

The remaining question is whether the Veteran's hepatitis C is related to the risk factors during service. 

As noted above, the Veteran was diagnosed with hepatitis C in 2007, after routine blood donor testing discovered the virus.  See February 2007 correspondence.  A May 2007 private treatment record indicates that the Veteran did not report any associated risk factors.  He denied having a history of blood transfusion or IV drug use.  Later VA treatment records note that he reported having a blood transfusion during service in the 1970s, which was thought to be the cause of the virus.  See July 2010 VA treatment record.  During the Board hearing, the Veteran clarified that he thought he had a blood transfusion when he was hospitalized for three days in January 1977, but that he was unconscious and not sure; he was told there was no record of it.  See Hrg. Tr. at 11-12.  The hospital records indicate he was hospitalized for a viral syndrome and there is no indication that he had a blood transfusion.  

In support of his claim, the Veteran has submitted a Board decision in another case that granted service connection for hepatitis C.  Although nonprecedential, this decision discussed medical evidence indicating that transmission of the hepatitis C virus with air gun injections was "biologically plausible."  See 38 C.F.R. § 20.1303 (providing that "[p]rior decisions in other appeals may be considered in a case to the extent that they reasonably relate to the case"); see also VA Adjudication Procedure Manual M21-1 pt. III, subpt. IV, ch. 4, sec. 1.2.e.  The decision also noted that in January 1998, the Department of Defense Epidemiology Board strongly recommended that multi-use jet gun injectors not be used because of the risk of transmission of blood borne diseases.  

In addition, the Veteran submitted an article from www.hcvets.com, that indicates that veterans are five times more likely to be infected with hepatitis C than the general population.  He also submitted photographs showing how these multi-use air guns were used during basic training in the 1970s.  

In a June 2016 letter, Dr. K.M. (initials used to protect privacy) indicated that he had reviewed the Veteran's medical history and noted the reported events in his military history, including inadequate sanitary conditions, unsanitary vaccination administration, and the sharing of facial shaving razors.  He noted that the Veteran had no other known risk factors that may have precipitated his hepatitis C.  Therefore, he opined that "it is more than likely that [the Veteran's] condition is a direct result of ..." the reported risk factors during service.  There are no medical opinions to the contrary.

The law is clear, pursuant to the "benefit-of-the-doubt" rule, where there is "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue.  38 U.S.C.A. § 5107 (West 2014).  Upon weighing the evidence of record, the Board finds that the lay statements and medical literature, along with the opinion of Dr. K.M., permit application of the reasonable doubt doctrine.

The Board therefore concludes that, with the benefit of the doubt resolved in the Veteran's favor, a grant of service connection for hepatitis C.  See Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990) ("[T]he 'benefit of the doubt' standard is similar to the rule deeply embedded in sandlot baseball folklore that 'the tie goes to the runner' . . . . [I]f . . .  the play is close, i.e., 'there is an approximate balance of positive and negative evidence,' the veteran prevails by operation of [statute].")

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ORDER

Entitlement to service connection for hepatitis C is granted.



____________________________________________
ANTHONY C. SCIRÉ, JR.
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs