Citation Nr: 1309730 Decision Date: 03/22/13 Archive Date: 04/01/13 DOCKET NO. 10-32 732 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for residuals of hepatitis C. WITNESSES AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1969 to April 1972, including service in the Republic of Vietnam. This matter came before the Board of Veterans' Appeals (Board) on appeal from a December 2008 decision by the Department of Veterans Affairs (VA) Philadelphia, Pennsylvania Regional Office (RO). In April 2011 the Veteran testified during a hearing before the undersigned Acting Veterans Law Judge at the RO; a transcript of that hearing is of record. FINDING OF FACT With resolution of the doubt in favor of the Veteran, hepatitis C was incurred during active military service. CONCLUSION OF LAW The criteria for the establishment of service connection for residuals of hepatitis C are met. 38 U.S.C.A. §§ 1101, 1110, 1154(b), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the Veteran's claim, because it is being granted in full, VA's duties to notify and assist are deemed fully satisfied and there is no prejudice to the Veteran in proceeding to decide the issue on appeal. See 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156, 3.159 (2012). Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a). In order to establish service connection, the following must be shown: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Where there is a chronic disease shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b). 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). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. In the current case, the Veteran has asserted that he developed hepatitis C during active duty for which service connection should be granted. He presented testimony on personal hearing in April 2011 that he was infected during service from inoculations given by jet injector air guns that spread the hepatitis C virus. The Veteran's representative also asserted at the April 2011 hearing that the Veteran may have been exposed to hepatitis C in service through other forms of contact with other soldiers, such as sharing shaving razors, or after injuring his hand with a nail while working on a construction project. The Veteran's service treatment records contain no diagnosis or treatment for hepatitis C, nor could they; the virus had not yet been discovered, and a reliable and accurate test for hepatitis C was not available until 1992, approximately 20 years after the Veteran's separation from service. See VBA Fast Letter 98-110 (November 30, 1998). The Veteran's private medical records clearly show current diagnoses of chronic hepatitis C and treatment for complications of hepatitis C, including cirrhosis of the liver, since at least January 2001. Treatment records from September 2003 to April 2006 from the Susquehanna Center for Liver Disease show regular treatment for advanced chronic hepatitis C and liver disease. While the Veteran's hepatitis C was not diagnosed until many years after separation from service, he has asserted that it was likely present for many years before it was diagnosed. A December 2008 letter from the Veteran's private physician assistant states that the Veteran has been under her care since 2000, when he was diagnosed with chronic hepatitis C. The letter also states that liver biopsies done at the time of his diagnosis were consistent with having had hepatitis C for approximately 30 years. The Veteran's separation from active duty service was in April 1972. The Veteran has also submitted a February 2005 article which links the use of jet injector air gun vaccinations to outbreaks of hepatitis and a VA Fast Letter from June 2004 which states that, although the majority of hepatitis infections can be related to known common methods of transmission, VA has acknowledged that despite the lack of any scientific evidence to document the transmission of the hepatitis C virus with air gun injections, it is "biologically plausible" to have the transmission of hepatitis C through the use of jet injector air guns. VBA Fast Letter 04-13 (June 2004). The Veteran asserts that he received such jet injector air gun vaccinations while at Parris Island Marine Corps Recruit Depot and has submitted a website printout featuring a picture of servicemen receiving jet injector air gun vaccinations at Parris Island in 1968. The Veteran's service treatment records show that he received a physical examination screening at Parris Island in July 1969 at which time he received injection vaccinations for influenza and plague, as well as a tuberculin test injection. At his April 2011 hearing, the Veteran described the vaccination process as consisting of a row of 60 soldiers, each receiving an injection from the same air gun nozzle without intervening sterilization, despite many of the soldiers bleeding as a result of the injection. The Veteran has also denied all high-risk behaviors for hepatitis C outside of his exposure during service. Risk factors for hepatitis C include intravenous drug use, blood transfusions before 1992, hemodialysis, intranasal cocaine, high-risk sexual activity, accidental exposure while 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. VBA Fast Letter 98-110 (November 30, 1998). The Veteran stated in his April 2011 hearing that in addition to exposure from jet injector air guns, he was possibly exposed in service due to sharing razors and once being injured by a nail that went through his finger. He denied any exposure to blood since his separation from service or any intravenous drug use. Affording the Veteran the benefit of the doubt, the Board finds that the evidence is at least in relative equipoise regarding whether the Veteran acquired hepatitis C during active duty as a result of receiving a vaccination from an infected air injection gun while undergoing immunizations administered en masse to servicepersons without proper sterilization. The Veteran has provided sworn testimony as to his exposure to blood through the use of these air guns in service, and he has denied any other significant risk factors for the transmission of hepatitis C. The Veteran's only other possible risky exposures, which in this case is from sharing razors and a puncture injury, also occurred during active duty service. There is no evidence of record that would suggest that the Veteran's hepatitis C infection was acquired in any manner other than he has described or that the Veteran is not credible. Furthermore, the Veteran's treating physician assistant provided a probative medical opinion that based on the biopsy results, hepatitis C was present during service. The evidence indicates that he has had hepatitis C since that itme. Thus, the Board finds that it cannot be said that a preponderance of the evidence is against the claim, and as such, resolving all reasonable doubt in favor of the Veteran, the criteria for a grant of service connection have been met. In view of the foregoing, the benefit of the doubt is conferred in the Veteran's favor and the claim for service connection for hepatitis C is granted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. ORDER Entitlement to service connection for residuals of hepatitis C is granted. ____________________________________________ K. MILLIKAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs