Citation Nr: 1003545	
Decision Date: 01/25/10    Archive Date: 02/01/10

DOCKET NO.  08-19 933	)	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:	The American Legion


WITNESSES AT HEARING ON APPEAL

Appellant and spouse


ATTORNEY FOR THE BOARD

J. W. Kim, Counsel

INTRODUCTION

The Veteran had active service from August 1972 to April 
1982.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from an October 2006 rating decision issued 
by the Department of Veterans Affairs (VA) Regional Office 
(RO) in St. Petersburg, Florida.

In November 2007, the Veteran requested a hearing at the RO 
before a decision review officer (DRO).  In May 2008 
correspondence, he stated that he wished to cancel his DRO 
hearing and instead have a Board hearing.  

In November 2008, the Veteran testified during a hearing 
before the undersigned Veterans Law Judge at the RO; a 
transcript of that hearing is of record.  At the hearing, the 
Veteran submitted additional evidence with a waiver of 
initial review of that evidence by the agency of original 
jurisdiction.  The Board accepts this evidence for inclusion 
in the record on appeal.  38 C.F.R. § 20.1304 (2009).


FINDING OF FACT

Affording the Veteran the benefit of the doubt, the competent 
medical evidence of record shows that his hepatitis C is 
causally related to active service.


CONCLUSION OF LAW

Resolving the benefit of the doubt in the Veteran's favor, 
hepatitis C was incurred during active military service.  38 
U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 
3.303 (2009).




REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act

The Veterans Claims Assistance Act (VCAA), codified at 38 
U.S.C.A. §§ 5100, 5102, 5103A, 5106, 5107, and 5126 (West 
2002 & Supp. 2009), was signed into law on November 9, 2000.  
Implementing regulations were created, codified at 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159, and 3.326 (2009).

In light of the Board's favorable determination, no further 
discussion of VCAA compliance is needed at this time.  

Pertinent Laws and Regulations

Service connection may be granted for disability resulting 
from disease or injury incurred in or aggravated by active 
service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 
3.303(a) (2009).  Service connection may be also granted for 
any disease diagnosed after discharge when all of 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 establish service connection for a claimed 
disorder on a direct basis, there must be: (1) medical 
evidence of a current disability; (2) medical or, in certain 
circumstances, lay evidence of the in-service incurrence or 
aggravation of a disease or injury; and (3) medical evidence 
of a nexus between the claimed in-service disease or injury 
and the current disability.  See Hickson v. West, 12 Vet. 
App. 247, 253 (1999).

The determination as to whether the requirements for service 
connection are met is based on an analysis of all of the 
evidence of record and the evaluation of its credibility and 
probative value.  38 U.S.C.A. § 7104(a) (West 2002); 38 
C.F.R. § 3.303(a).  See Baldwin v. West, 13 Vet. App. 1 
(1999).  

Risk factors for hepatitis C include intravenous (IV) drug 
use, blood transfusions before 1992, hemodialysis, intranasal 
cocaine use, high-risk sexual activity, accidental exposure 
to blood by a health care worker, and various kinds of 
percutaneous exposure such as tattoos, body piercing, 
acupuncture with non-sterile needles, shared toothbrushes or 
razor blades.  See Veterans Benefits Administration All 
Station Letter 98-110, "Infectious Hepatitis" (Nov. 30, 
1998).

Direct service connection may be granted only when a 
disability or cause of death was incurred or aggravated in 
line of duty, and not the result of the veteran's own willful 
misconduct or, for claims filed after October 31, 1990, the 
result of his or her abuse of alcohol or drugs.  38 C.F.R. § 
3.301(a) (2009).

Analysis

The Veteran contends that he contracted hepatitis C during 
service through inoculations with air guns.  Alternatively, 
he contends that his hepatitis C is due to participation in 
an in-service study during which he was injected with 
nondisposable needles that were reused.

The Veteran's service treatment records are not of record.  
However, the available service personnel records show that he 
participated as a test subject from April 1974 through 
September 1975.  

In an April 2005 VA gastroenterology administrative note, Dr. 
B. states that, in relation to the etiology of the Veteran's 
hepatitis C, the only positive event is that the Veteran was 
vaccinated with the air gun.  Dr. B. then opines that this is 
the cause of the Veteran's hepatitis C.

In an August 2007 letter, Dr. T., the Veteran's treating 
physician, noted that the Veteran was inoculated with air 
guns in service and opined that this could easily have been 
the cause/transmission of hepatitis C.  Dr. T. also noted 
that the Veteran was injected with reused nondisposable 
needles as a test subject in service and opined that this too 
could easily have been the cause/transmission of hepatitis C.

After a careful review of the record, the Board finds that 
service connection for hepatitis C is warranted.  Although 
the available service records do not show that the Veteran 
received inoculations with air guns, air guns were used 
during that time and the Board finds that he is competent and 
credible in providing lay evidence of air gun use in service.  
See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Grottveit v. 
Brown, 5 Vet. App. 91, 93 (1993); Hayes v. Brown, 5 Vet. App. 
60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 
192-93 (1992)).  See also Guerrieri v. Brown, 4 Vet. App. 
467, 470-71 (1993).  The Board also notes that a VA physician 
has related the hepatitis C to the in-service inoculation 
with air guns.  Similarly, although the available service 
records do not show how the studies were conducted, the 
Veteran did serve as a test subject during service and the 
Board finds that he is competent and credible in providing 
lay evidence of testing methods.  See Layno, 6 Vet. App. at 
470; Grottveit, 5 Vet. App. at 93; Hayes, 5 Vet. App. at 69-
70.  See also Guerrieri, 4 Vet. App. at 470-71.  The Board 
also notes that a physician has indicated a link between the 
hepatitis C and injections with reused needles.  

When, after careful consideration of all procurable and 
assembled data, a reasonable doubt arises regarding service 
origin, the degree of disability, or any other point, such 
doubt will be resolved in favor of the claimant.  38 U.S.C.A. 
§ 5107(b); 38 C.F.R. § 3.102 (2009); Gilbert v. Derwinski, 1 
Vet. App. 49, 53-56 (1990).

Following a full review of the record, and giving the Veteran 
the benefit of the doubt, the Board concludes that service 
connection for hepatitis C is warranted.


ORDER

Service connection for hepatitis C is granted.



____________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs