Citation Nr: 0814816	
Decision Date: 05/05/08    Archive Date: 05/12/08

DOCKET NO.  07-06 244A	)	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

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

T. L. Reynolds, Counsel


INTRODUCTION

The veteran served on active duty from February 1976 to April 
1980.

This case comes before the Board of Veterans' Appeals (Board) 
on appeal of a June 2005 rating decision of the Department of 
Veterans Affairs (VA) Regional Office (RO) in Huntington, 
West Virginia.  

The veteran presented testimony at a Travel Board hearing 
chaired by the undersigned Veterans Law Judge in December 
2007.  A transcript of the hearing is associated with the 
veteran's claims folder.  During the hearing, the veteran 
submitted additional evidence in support of her appeal and 
waived her right to have the evidence initially considered by 
the RO.


FINDING OF FACT

Hepatitis C is etiologically related to the veteran's active 
service.


CONCLUSION OF LAW

Hepatitis C was incurred in active service.  38 U.S.C.A. § 
1131 (West 2002); 38 C.F.R. § 3.303 (2007).


REASONS AND BASES FOR FINDING AND CONCLUSION

Initially, the Board notes that the veteran has been provided 
all required notice and the evidence currently of record is 
sufficient to substantiate her claim.  Therefore, no further 
development with respect to the matter decided herein is 
required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 
2007) or 38 C.F.R. § 3.159 (2007).


General Legal Criteria

Service connection may be granted for disability resulting 
from disease or injury incurred in or aggravated by active 
service.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303.  

Service connection may be granted for any disease initially 
diagnosed after service, when all the evidence, including 
that pertinent to service, establishes that the disease was 
incurred in service.  38 C.F.R.  § 3.303(d).

Direct service connection may not be granted without medical 
evidence of a current disability, medical or, in certain 
circumstances, lay evidence of in-service incurrence or 
aggravation of a disease or injury; and medical evidence of a 
nexus between the claimed in-service disease or injury and 
the present disease or injury.  See Caluza v. Brown, 7 Vet. 
App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996).

Except as otherwise provided by law, a claimant has the 
responsibility to present and support a claim for benefits 
under laws administered by the Secretary.  The Secretary 
shall consider all information and lay and medical evidence 
of record in a case before the Secretary with respect to 
benefits under laws administered by the Secretary.  When 
there is an approximate balance of positive and negative 
evidence regarding any issue material to the determination of 
a matter, the Secretary shall give the benefit of the doubt 
to the claimant.  38 U.S.C.A. § 5107 (West 2002); see also 
Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a 
claim on its merits, the evidence must preponderate against 
the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), 
citing Gilbert, 1 Vet. App. at 54.

Analysis

A review of the veteran's service medical records reveals no 
objective medical findings of hepatitis.  

Post service, the first objective medical finding of 
hepatitis C was noted in a August 2002 VA outpatient 
treatment record which indicate that the veteran had an 
abnormal liver function test and was advised to limit alcohol 
intake.    

The veteran maintains that she contracted hepatitis C from 
inoculation with air guns in service.

The veteran was afforded a VA examination in December 2006.  
The examiner noted that the veteran had been diagnosed as 
having hepatitis C.  He indicated that the veteran had denied 
all major risk factors for contacting hepatitis C and that it 
could be theoretically possible that she contacted hepatitis 
C via air gun immunizations while in service, but this 
conclusion did not appear to arise to a level of 50-50 
probability.  He concluded by stating that in his opinion the 
etiology and source of the veteran's hepatitis C could not be 
stated without resorting to sheer speculation.

At the time of the veteran's December 2007 hearing, she 
submitted a photocopy of an internet article entitled "Plan 
Backfires - VBA Fast Letter Boost Claims."  The article 
indicates that veterans who received inoculation with air 
guns in service should get tested for hepatitis C.  It also 
indicates that products used to sanitize and disinfect 
medical and dental equipment did not kill the hepatitis C 
virus.  

At the veteran's December 2007 hearing, she gave an in-depth 
account of her experience receiving an inoculation with an 
air gun in service.  She recalled that a group of soldiers 
were standing in line awaiting their inoculation and each 
individual received the inoculation one right after the 
other.  She recalled blood on the arm of the person who 
received the inoculation before her as well as blood on the 
arm of the person who received the inoculation after her.  

The Board notes that for a veteran to prevail in her claim it 
must only be demonstrated that there is an approximate 
balance of positive and negative evidence.  In other words, 
the preponderance of the evidence must be against the claim 
for benefits to be denied.  Gilbert v. Derwinski, 1 Vet. App. 
49, at 54 (1990).  While the evidence does not overwhelmingly 
support the grant of service connection for hepatitis C, it 
cannot be stated that the preponderance of the evidence is 
against the claim of service connection.

The veteran currently has hepatitis C.  As noted in the 
literature provided by the veteran, individuals who have been 
exposed to air gun inoculations should be tested for 
hepatitis C since research has demonstrated that sanitation 
and disinfectant materials used to clean the guns between 
inoculations has shown that it did not kill the hepatitis C 
virus.  The veteran has indicated that she was exposed to 
blood from others while standing in line awaiting her 
inoculation, and she has denied any other significant risk 
factor for hepatitis C.  The Board finds her a credible 
witness.  Although the December 2006 VA examiner indicated 
that it was too speculative to render an opinion as to the 
etiology of the veteran's hepatitis C, he acknowledged that 
it was a possible cause of the infection and he identified no 
other possible cause of the infection.  The Board finds that 
the evidence is at least in equipoise as to whether the 
veteran's current hepatitis C is related to her period of 
service.  In such a case, reasonable doubt must be resolved 
in favor of the veteran and service connection for hepatitis 
C is warranted.  

 
ORDER

Service connection for hepatitis C is granted.



____________________________________________
Shane A. Durkin 
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs