Citation Nr: 1639801	
Decision Date: 09/30/16    Archive Date: 10/13/16

DOCKET NO.  06-12 644	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to service connection for Hepatitis C.



REPRESENTATION

Veteran represented by:	Kathy A. Lieberman


ATTORNEY FOR THE BOARD

I. Cannaday, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the U.S. Navy from August 1979 to August 1981.  

This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.

In May 2008, the Board denied entitlement to service connection for hepatitis C.  The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court).  In an April 2009 Order, the Court granted a Joint Motion for Remand (JMR) filed by the parties to vacate and remand the May 2008 Board decision.  The Board remanded the Veterans claim in June 2009 and April 2011 to comply with the terms of the first JMR. 

In April 2014, the Board again denied the Veteran's claim for service connection for hepatitis C.  The Veteran once again appealed the Board's decision to the Court.  In a November 2014 Order, the Court granted a JMR filed by the parties to vacate and remand the April 2014 Board decision.  The Board remanded the Veteran's claim in April 2015 to comply with the terms of the JMR.  The case has since been returned to the Board for appellate review.

The Board notes that the Veteran submitted a Privacy Act request for copies of certain documents in his claims file in January 2016, and a duplicative request in August 2016.  The record shows that the January 2016 request has been processed.  See July 2016 correspondence.  When a Privacy Act request is filed by an individual seeking records pertaining to him or her and the relevant records are in the custody of the Board, such request will be reviewed and processed prior to appellate action on that individual's appeal.  38 C.F.R. §§ 1.577 and 20.1200 (2015); see also Nieves-Rodriguez v. Peake 22 Vet. App. 295, 304 n.5 (2008) (noting that the Board will defer action on an appeal when there is a pending request for claims file records).  However, the decision below represents a full grant of the benefit sought on appeal.  Additionally, as the August 2016 request is duplicative of the January 2016 request, there is no prejudice to the Veteran in proceeding with adjudication at this time.  

This appeal was processed using the Veterans Benefits Management System (VBMS).  The Virtual VA electronic claims file contains documents that are either duplicative of the records in VBMS or irrelevant to the issue on appeal.


FINDING OF FACT

The Veteran's current hepatitis C is at least as likely as not the result of an in-service event or injury.


CONCLUSION OF LAW

Resolving reasonable doubt in favor of the Veteran, the criteria for entitlement to service connection for hepatitis C has been met.  38 U.S.C.A. §§ 1101, 1131, 5103, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(2015).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

Under the VCAA, VA is required to advise a claimant of the information and evidence not of record that is necessary to substantiate a claim.  See 38 U.S.C.A. § 5103 (West 2014); 38 C.F.R. § 3.159(b)(1) (2015).  VA also has a duty to assist claimants in obtaining evidence needed to substantiate a claim, unless no reasonable possibility exists that such assistance would aid in substantiating that claim.  38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2015).  In light of the favorable disposition below, the Board finds that any deficiency in VA's VCAA notice or development actions is harmless error with respect to the issue adjudicated in this decision.




Law and Analysis

Service connection may be granted for any disease 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).  As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

The Veteran asserts that his hepatitis C is related to his military service.  Specifically, the Veteran contends that he was injected with an unsterile Jet-Injector that infected him with Hepatitis C.  See VA Form 9.  Alternatively, the Veteran's representative has indicated that the Veteran's in-service tattoos could have caused his hepatitis C.  See August 2016 correspondence.  Indeed, the Veteran's service treatment record shows that he received immunizations, vaccines, and intradermal testing.  Moreover, there was no tattoo noted on the Veteran's May 1979 entrance examination; however there was a notation of tattoos on both hands at his September 1980 clinical evaluation, and his August 1981 separation examination indicated that he had a tattoo on his left arm as well as his hands.  Therefore, the Board finds that the Veteran competently and credibly reported the existence of an injury or event in service.

The Board notes that the Veteran was previously afforded VA examinations in September 2009, August 2011, and January 2013.  The Board previously found the September 2009 opinion inadequate, and in the November 2014 JMR, the parties agreed that the August 2011 and January 2013 VA opinions were inadequate to decide the case.  Thus, these opinions are of limited probative value.

The Veteran was most recently afforded a VA examination in August 2015.  At that examination, the examiner opined that the Veteran's hepatitis C was less likely than not incurred in or caused by the claimed in-service injury, event or illness.  In so finding, the examiner cited his 40 years of experience, that he has a Master's degree in Public Health, and that he is a Veteran himself.  Additionally, the examiner indicated that the Veteran's February 2015 private examiner's opinion, which will be discussed in greater detail below, was too speculative to show that the Veteran's hepatitis C was at least as likely as not related to his service.  

Specifically, the VA examiner stated that, the private examiner's notation that it is biologically plausible for hepatitis C to be transmitted, in medical terms, means only possible or conceivable, which is of a speculative nature.  Further, the VA examiner stated that an article cited by the private examiner that shows that hepatitis B is associated with jet gun injection, does enhance the plausible nature of a transmission via jet injector.  However, the VA examiner stated that the article refers to hepatitis B and not hepatitis C and that the article was drafted before hepatitis C was discovered, so the matter of hepatitis C transmission via jet injector gun is placed into the realm of speculation.  Moreover, the examiner addressed the Veteran's statement that he had dark urine and fatigue for 5 to 6 days during service.  Relying on medical literature, the examiner stated that hepatitis C symptoms could not be considered without a doubt as related, since most cases of hepatitis C are asymptomatic and not associated with jaundice (e.g. dark urine).  Finally, the examiner opined that it would be mere speculation to determine if the period of time from discharge to the initial diagnosis had any effect on the analysis regarding the likelihood that hepatitis C was contracted during military service, as there would be no method prior to 1989 by which a definitive diagnosis of hepatitis C could have been made.  

As mentioned above, the Veteran obtained a private medical opinion in February 2015.  The private examiner opined that it is more likely than not that the Veteran was infected with hepatitis C while in service.  In so finding, the private examiner stated that gun injectors have to pierce the surface of the skin and therefore are at risk of transmitting disease.  Importantly, the examiner noted that the World Health Organization has banned their use because of the risk of disease transmission, and that there is a well-documented case of hepatitis B transmission with air gun injectors.  Further, the private examiner stated that it is not speculation, but fact, to say that air gun injectors can transmit blood borne diseases.  Additionally, the private examiner noted that the Veteran had no other post-service risk factor that occurred before the Veteran was diagnosed with Hepatitis C.  The examiner concluded that the Veteran had two risk factors in-service for contracting hepatitis C, tattoos that he received between his entrance and separation exams and multi-use air injectors for vaccines.  Regarding the tattoos, the private medical examiner indicated that no tattoos were noted on the Veteran's May 1979 entrance examination, there was a notation of tattoos on both hands at his September 1980 clinical evaluation, and that his August 1981 separation examination indicated that he had a tattoo on his left arm as well as his hands.  The Veteran's only other tattoo was obtained in 2006, after he was diagnosed with hepatitis C.  Therefore, the examiner opined that it is more likely than not that the Veteran was infected with hepatitis C while in service. 

As the issues of the existence of a current disability and injury or event in service have been established, the dispositive issue in this case hinges on the issue of nexus, i.e., whether the Veteran's current disability is related to service.  

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).  Here, the Board finds that, upon weighing the evidence of record, the evidence is at least in equipoise as to whether the Veteran's hepatitis C is related to his military service.  In that regard, although the August 2015 VA examiner opined that the Veteran's hepatitis C was less likely than not related to service, it is unclear that his opinion applies the proper standard.  Moreover, the February 2015 private examiner provided a positive nexus opinion which reviewed the pertinent evidence in the claims file, considered the Veteran's reported history, and supported her conclusions with an adequate supporting rationale.  Although the Board in its April 2015 remand noted that that it appeared that the private physician failed to take into account the Veteran's post service tattoos and the risk factors associated with his incarceration, the August 2015 examiner opined that it would be mere speculation to determine if the period of time from discharge to the initial diagnosis had any effect on the analysis regarding the likelihood that hepatitis C was contracted during military service.  In that regard, as noted by Judge Lance in his concurring opinion in Jones v. Shinseki, "if the medical evidence in the record indicates that a disability has only two potential causes and at least one is related to service, then the inability of the medical examiner to provide a reason why one is more likely the cause of the claimant's disability would place the evidence in equipoise, and the benefit of the doubt rule would apply."  23 Vet.App. 382, 394 (2010) (Lance, J. concurring).  

Based on the foregoing, the Board concludes that, with the benefit of the doubt resolved in the Veteran's favor, a grant of service connection for hepatitis C is warranted.  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].")


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