Citation Nr: 1328445 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 10-35 558 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from November 1952 to September 1954. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In November 2011, the Board denied the claim for entitlement to service connection for hepatitis C. The Veteran appealed this denial to the Court of Appeals for Veterans Claims (Court). In September 2012, the Court granted a Joint Motion for Remand filed by the parties which requested that the November 2011 Board decision be vacated and remanded. The appeal was returned to the Board and in May 2013 was remanded for further development. The case has now returned to the Board for additional appellate action. This appeal was processed using the Veterans Benefits Management System (VBMS) for paperless claims. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran's hepatitis C is etiologically related to active duty service. CONCLUSION OF LAW Service connection for hepatitis C is warranted. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that service connection is warranted for hepatitis C as it was incurred during active duty service. He specifically contends that he was exposed to the disease by military personnel who performed inoculations with unsterilized needles while he was stationed in Korea. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (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"-the so- called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007). The record establishes the presence of a current disability. Treatment records from the Veteran's private physician document a history of hepatitis C dating from December 1994. He was referred to a private gastroenterologist in December 2003, and hepatitis C was confirmed following positive laboratory testing and a liver biopsy. The Veteran was also diagnosed with hepatitis C upon VA examination in June 2013. The Board also finds an in-service injury is demonstrated. Although service treatment records are negative for any evidence of hepatitis C, the Veteran has reported that he received inoculations with unsterilized needles on several occasions during his period of active duty service. In support of his claim, he submitted a February 2012 statement from another veteran who served in Korea and also witnessed military medical personnel reuse unsanitized needles. The Veteran and his friend are competent to describe injuries and incidents that occurred during service. The Board will therefore resolve all doubt in the Veteran's favor and find that the first two elements of service connection-a current disability and in-service injury-are demonstrated. The Board also finds that the competent evidence of record establishes a nexus between the Veteran's current hepatitis C and active duty service. The Veteran's private doctor provided a medical opinion in support of the claim in December 2008, finding that the Veteran's history of shots with "dirty needles" during service certainly could be the cause of his hepatitis C. The private physician also noted that the Veteran had no history of other risk factors for hepatitis C including blood transfusions, sexually transmitted causes, or reception of cuts or bruises that could result in the disease. Weighing against the claim is a medical opinion from a VA examiner who physically examined the Veteran and reviewed the claims file in June 2013. Although the VA examiner provided an opinion against the claim, the examiner also concluded that the cause of the Veteran's hepatitis C could not be determined. The record therefore contains one medical opinion in favor of the claim and one medical opinion weighing against it. The Veteran has reported a credible and competent history of exposure to unsanitized needles during active service and the record does not document any other potential hepatitis C risk factors. The Board will therefore resolve any doubt in favor of the Veteran and find that the competent evidence establishes a nexus between the current hepatitis C and the Veteran's inoculations during active duty service. All three elements of service connection are present and the claim is granted. As a final matter, the Board finds that VA has substantially satisfied the duties to notify and assist. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with this appeal given the favorable nature of the Board's decision to grant the claim. ORDER Entitlement to service connection for hepatitis C is granted. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs