Citation Nr: 1328188 Decision Date: 09/04/13 Archive Date: 09/10/13 DOCKET NO. 07-24 163A ) 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 Veteran represented by: The American Legion ATTORNEY FOR THE BOARD J.N. Moats, Counsel INTRODUCTION The Veteran served on active duty from March 1974 to March 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board previously remanded this case for further development in April 2011 and November 2011. Additionally, in July 2013, an expert opinion from the Veterans Health Administration (VHA) was obtained. In its prior remands, the Board referred the Veteran's claim for service connection for sinusitis. As that claim does not yet appear to have been adjudicated in the first instance, it is again referred to the agency of original jurisdiction (AOJ) for appropriate action. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the Virtual VA claims file reveals VA treatment records dated through October 2011, which were considered by the AOJ in the July 2012 supplemental statement of the case. FINDING OF FACT Resolving all doubt in favor of the Veteran, hepatitis C is related to his active duty service. CONCLUSION OF LAW The criteria for a grant of service connection for hepatitis C have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION As the Board's decision to grant service connection for hepatitis C herein constitutes a complete grant of the benefit sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the implementing regulations. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 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, and shared toothbrushes or razor blades. VBA Letter 211B (98-110) November 30, 1998. Additionally, a June 2004 VA Fast Letter addresses the alleged relationship between immunization with air gun injectors and hepatitis C infection. VBA Fast Letter (04-13) June 29, 2004. Specifically, that Fast Letter notes that transmission of the hepatitis C virus with air gun injections is 'biologically plausible,' notwithstanding the lack of any scientific evidence documenting such relationship. In this case, the Veteran has repeatedly contended that he contracted hepatitis C through exposure to one or more of the in-service risk factors identified in the aforementioned VBA Fast Letters. Specifically, he alleges that he was exposed to unsterilized air gun devices used to administer vaccinations, "infected needles" injected by medical professionals, and shaving razors contaminated with the blood of other service members. Conversely, the Veteran emphatically denies exposure to other hepatitis C risk factors, including high-risk sexual activity and intranasal and intravenous drug use. The Board notes that illicit drug use constitutes willful misconduct and, thus, is not considered a valid means of establishing service connection even if incurred in the line of duty. Pub. L. No. 101-508, § 8052, 104 Stat. 1388, 1388- 351 (1990); VAOPGCPREC 2-98 (1998), 63 Fed. Reg. 31263 (1998). The Board observes that the Veteran, as a layperson, is competent to report events within the realm of his personal experience. As such, he is competent to state that he was vaccinated with air gun injectors on examination prior to his entry into service. Similarly, he is competent to report having had blood drawn with needles and having shared shaving razors with his fellow airmen. Moreover, the Board finds the credibility of the Veteran's account is bolstered by its consistency with his service treatment records, which confirm that that he received vaccinations and underwent blood tests to assess his hemoglobin, packed cell volume, and white blood cell levels. Further, the Board considers it significant that the Veteran has expressly stated that his long-term treating VA provider told him that the above risk factors were the likely cause of his hepatitis C. Though a layperson, the Veteran is competent to report what his treating provider has told him in this regard. See 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). VA treatment records show that the Veteran has been diagnosed with hepatitis C. He was afforded a VA examination in August 2009. Nevertheless, as this examination was considered inadequate because it did not address all of the aforementioned hepatitis C risk factors, the Board issued an April 2011 remand ordering that the Veteran undergo another VA examination to expressly address whether his reported exposure to air gun inoculations, infected needles, or contaminated razors had caused or contributed to his hepatitis C. The Veteran was afforded another VA examination in June 2011. However, again the examination did not adequately address the Veteran's reported in-service risk factors. On the contrary, while the June 2011 VA examiner summarily concluded that there "was no history of in-service risk factors such as ... inoculation by use of 'infected needles as well as use of shared razors,'" she made no mention of the Veteran's lay assertions with respect to those risk factors. As such, it was unclear whether the examiner considered the lay evidence of in-service incurrence. Moreover, while the June 2011 examiner opined that it was less likely than not that the Veteran's hepatitis C had resulted from the myalgia he incurred in service, it is significant that the Veteran has since asserted that his myalgia, which was diagnosed and treated as pneumonia in April 1974, was a mere manifestation, rather than a cause, of his current disability. Indeed, the Veteran has steadfastly maintained that his hepatitis C is due to one or more of the risk factors noted above. The Board remanded the case again in November 2011 for an addendum opinion to adequately address the Veteran's in-service risk factors. An addendum was prepared by the same examiner in December 2011. The examiner again determined that the Veteran's hepatitis C was less likely than not related to his reported in-service exposure to unsterilized air gun devices, infected needles, and sharing contaminated razors because service treatment records were silent regarding this history. However, this addendum opinion is also insufficient because the examiner again did not address the Veteran's competent and credible lay statements regarding his in-service risk factors. Accordingly, the Board determined that another medical opinion was necessary and referred the case for an expert opinion from the VHA in accordance with VHA Directive 1602-01. In July 2013, an opinion was prepared by a medical doctor with the Division of Infectious Disease, Hepatology, Federal Health Care Center. The examiner opined that it was at least as likely as not (50 percent or higher degree of probability) that the Veteran's hepatitis C was related to service, specifically his reported exposure to unsterilized air gun devices used to administer vaccinations and shaving razors contaminated with blood from other service members. The examiner observed that the Veteran's records showed no documented history of IV drug use or blood transfusion while in service and before 1992. The examiner also noted that the Veteran had persistently denied high risk sexual practices. There was also no documented history of occupational exposure, tattoos or piercings, hemodialysis or organ transplantation. However, the Veteran reported sharing bloody shaving with other service members while in service. Based on case reports, the risk of getting infected with hepatitis C was in the range of 3 to 10 percent when mucous membrane or broken skin was exposed to infected body fluid, which was a significant risk from Veteran's report. It was also true that these devices were used interchangeably amongst service members without sterilization. Thus, based on the Veteran's reports of exposure and the lack of any other risk factors, the examiner opined that it was at least as likely as not that the Veteran's hepatitis C was related to these in-service risk factors. Accordingly, based on the July 2013 opinion and resolving all the doubt in favor of the Veteran, the Board finds that service connection for hepatitis C is warranted. Again, the Board has found the Veteran's statements concerning in-service risk factors, such as sharing razors, to be credible. See Jandreau. Importantly, the July 2013 VA opinion linked the Veteran's hepatitis C to these risk factors. Accordingly, when resolving the benefit of the doubt in favor of the Veteran, the Board must conclude that the evidence is in at least a state of equipoise and service connection for hepatitis C is warranted. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for hepatitis C is granted. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs