Citation Nr: 1328037 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 13-08 710 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Veteran represented by: Jeremy S. Montgomery, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty from August 1976 to November 1979. This case comes before the Board of Veterans' Appeals (Board) on appeal of an August 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which denied the benefit on appeal. In July 2013, the Board sent the Veteran's claims file for an opinion from a Veterans Health Administration (VHA) specialist. The requested opinion was obtained in August 2013. The Veteran appeared and testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in May 2013. A transcript of the hearing is associated with the claims file. FINDING OF FACT There is at least an approximate balance of positive and negative evidence as to whether the Veteran's current hepatitis C had its onset during his military service. CONCLUSION OF LAW Resolving doubt in favor of the Veteran, his hepatitis C was incurred as a result of his military service. 38 U.S.C.A. §§ 1101, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In light of the favorable decision herein as to the issue on appeal, the Board finds that any deficiencies in notice were not prejudicial to the Veteran. Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). 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 to the claimant. Factual Background and Analysis The Veteran contends that he acquired hepatitis C either due to air-gun inoculations or unprotected sex during service. He denied receiving any tattoos, IV drug use, or intranasal cocaine use. In the Veteran's enlistment physical, he denied any pre-service history of jaundice or hepatitis. His service treatment records do not show any treatment for or complaints of hepatitis or liver-related symptoms. He was treated for gonorrhea and urinary tract infection during service following unprotected sex. Physical examination at service separation noted a history of venereal disease, but it had resolved. Following service, the Veteran was first diagnosed as having hepatitis C in 1998. At the time of the diagnosis, treating personnel indicated that a surgery-related blood transfusion in the 1980s (post-service) was likely the cause of his contraction of hepatitis C. Of note, the Veteran underwent a bypass grafting surgery in 1989. In a December 1998 letter, the Veteran's treating gastroenterologist indicated that the Veteran reported receiving a blood transfusion during his bypass surgery in the 1980s. She opined that this was the most likely etiology of his abnormal liver tests and chronic hepatitis C. In a February 2012 letter from the same treating gastroenterologist, she indicated that the Veteran "could have contracted the Hepatitis C virus" during service because of his multiple sexual partners. An August 2012 VA examiner indicated that the Veteran's hepatitis C was less likely than not related to service. Then, the examiner indicated in the rationale section that he could not determine whether the Veteran's in-service sexual activity would be the cause of his hepatitis C without resort to speculation. The Board forwarded the Veteran's claims file to a VHA specialist in July 2013 to clarify the possible etiology of the Veteran's hepatitis C. In an August 2013 response, the specialist indicated that both the Veteran's post-service blood transfusion and high-risk sexual behavior are known risk factors for acquiring hepatitis C. She did not have enough information to provide an opinion with respect to air-gun inoculations. Finally, she indicated that unless the Veteran's blood had been tested prior to his blood transfusion, "it is not possible to determine which risk factor [caused] the hepatitis C infection." In other words, the specialist finally indicated that to determine "one risk factor is more likely than the other [to have caused the hepatitis C] is purely speculative." In this case, there is no question that the Veteran is current diagnosed as having hepatitis C. Thus, the key question before the Board is whether the hepatitis C had its onset during military service. The Board finds that the competing medical opinions of record were made competent and credible medical professionals based upon review of the clinical and lay evidence of record. See Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003) (evidence of a link between a current disability and service must be credible). Moreover, the Board finds that the Veteran's contentions that he had unprotected sex during service to be credible and supported by the evidence of record. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). As such, the Board assigns the positive and negative opinions of record equal weight. In light of the competing medical opinions, the Board finds that the competent medical evidence regarding whether there is a medical nexus between the current hepatitis C and active duty is, at the very least, in relative equipoise. Thus, the Board resolves all doubt in the Veteran's favor and finds that the evidence of record as a whole favors a finding that his hepatitis C is at least as likely as not caused by his high-risk sexual activity during service. The benefit sought on appeal is allowed. ORDER Service connection for hepatitis C is granted. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs