Citation Nr: 1330738 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 10-32 381 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for hepatitis C. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Barone, Counsel INTRODUCTION The Veteran had active duty service from May 1976 to May 1980 and from February 1987 to January 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in July 2009, a statement of the case was issued in May 2010, and a substantive appeal was received in July 2010. The Veteran testified at a Board hearing in December 2011. A transcript of that hearing is associated with the claims file. FINDING OF FACT The Veteran's hepatitis C is etiologically linked to the Veteran's active duty military service. CONCLUSION OF LAW The criteria for 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 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran claims entitlement to service connection for hepatitis C. Essentially, the Veteran contends that he currently suffers from hepatitis C as a result of one or more exposures to hepatitis C risk factors during military service. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury or disease in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also 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). To establish a claim of service connection, there must be evidence of a present disability; evidence of an in-service incurrence or aggravation of a disease or injury; and evidence of 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). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board further notes that it has reviewed all of the evidence in the Veteran's claims file and in "Virtual VA," with an emphasis on the evidence relevant to the matter on appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. The Board takes administrative notice of the fact that there are a number of medically recognized risk factors for hepatitis: transfusion of blood or blood products before 1992; organ transplant before 1992; hemodialysis; tattoos; body piercing; intravenous drug use (due to shared instruments); high-risk sexual activity (risk is relatively low); intranasal cocaine use (due to shared instruments); accidental exposure to blood products in health care workers or combat medic or corpsman by percutaneous (through the skin) exposure or on mucous membrane; and other direct percutaneous exposure to blood such as by acupuncture with non-sterile needles or by the sharing of toothbrushes or shaving razors. The fact that the Veteran was diagnosed with chronic hepatitis C in 2009 is well documented in the Veteran's private medical records in the claims-file; the Veteran received specialized treatment for this diagnosis for 6 months, as discussed in the June 2011 VA examination report. This fact is not in dispute. To establish entitlement to service connection in this case, the evidence must show that the Veteran chronic hepatitis C had onset during military service or is otherwise etiologically linked to the Veteran's military service. First, the Veteran directs the Board's attention to a number of facts in attempts to support his claim. During the Veteran's December 2011 Board hearing, he conceded that he was not absolutely certain as to specifically when he incurred his hepatitis C infection, but asked the Board to consider that he served on active duty for a total of approximately 21 years. The Board observes that the Veteran was 51 years of age in June 2009 when he was diagnosed with hepatitis C, and the hepatitis C diagnosis was made approximately 5 years after the conclusion of the Veteran's active duty military service. Board briefly observes that the Veteran is presumed to have been in sound condition at the time of his acceptance into military service. There is no specific evidence to indicate that the Veteran incurred his hepatitis C infection prior to his periods of active duty service. 38 U.S.C.A. §§ 1111, 1132, 1137. Second, the Veteran has presented lay testimony (both at his December 2011 Board hearing and in his account of history presented to the June 2011 VA examiner) that he experienced a number of hepatitis risk factors during service: receiving tattoos on both arms and the right chest in the early 1990s and in 1999, having unprotected sex with multiple partners, receiving vaccinations with an air-jet gun, sharing razors with other servicemen for haircuts and shaving his neck, experiencing various cuts and scrapes, and undergoing several dental procedures during service. During the Veteran's December 2011 Board hearing, he identified a number of tattoos on both arms and his chest, noting that they were all obtained during his active duty service with the exception of one of his shoulder tattoos obtained during reserve service. The Board notes that the Veteran's service treatment records indicate that he had a tattoo on each shoulder at the time of an October 1991 service examination, and had "multiple tattoos" by the time of an October 2003 service examination. The Board finds that the Veteran's service treatment records appear to be reasonably consistent with the Veteran's testimony regarding tattoos. The Board finds no reason to significantly doubt the Veteran's competent and credible testimony concerning his reported hepatitis risk factors during service. Third, the Veteran directs attention to an October 1991 service treatment record which shows that the Veteran had an abnormally high "ALT level" at that time. The service treatment record notes that repeated liver function testing was recommended. The report also notes that the Veteran engaged in "moderate" alcohol use. No follow-up testing or diagnosis is documented in the service treatment records or otherwise in the claims-file. The Board takes judicial notice of the fact that the medical acronym "ALT" refers to alanine transaminase, an enzyme most commonly associated with the liver; ALT levels are commonly utilized to screen for liver problems including hepatitis. The Veteran underwent a VA examination in June 2011, and the VA examination report is of record. The June 2011 VA examiner reviewed the claims-file and examined the Veteran; the report documents the alleged and documented details of the Veteran's pertinent medical history. The VA examiner remarked that "[t]he significance of the elevated SGPT (ALT) in Oct 1991 [is] not known because the follow up lab is not of record in the C-file." The VA examiner additionally comments that "[m]edical literature has not definitely documented inoculations with airg[u]n injections as a risk for developing Hepatitis C." Finally, the VA examiner concludes with the statement: "Because his reported risk factors are low risks, [to] state that his reported risk factors caused his Hepatitis C would require resorting to speculation." The Board finds that the June 2011 VA examiner's medical opinion does not weigh significantly against the Veteran's claim. The June 2011 VA examiner relies upon characterizing the Veteran's reported risk factors as "low risks," and finds that it would require "speculation" to determine a causal link; this opinion does not convincingly address key facts which appear highly relevant to considering the likelihood of an etiological nexus between the hepatitis C and the Veteran's military service. The VA examiner does not address the fact that the Veteran had active service for approximately 21 years and was diagnosed with hepatitis C approximately 5 years after separation. The VA examiner's opinion does not clearly explain an opinion indicating that it should be considered unlikely that the Veteran's hepatitis C is etiologically linked to military service; the VA examiner merely notes that the significant of the October 1991 abnormal liver enzyme level was "not known" and that an overall determination of etiology would require speculation. The Board finds that the June 2011 VA examination report does not present a very persuasive indication that it is less likely than not that an etiological link between the Veteran's hepatitis C and his military service exists. Indeed, the June 2011 VA examination report's indication that a determination of a nexus to service would require some degree of "speculation" is not actually an indication that such a link is necessarily improbable. As the Board finds that the June 2011 VA examination report does not weigh significantly against the Veteran's claim, the Board has considered whether additional development is warranted at this time or, alternatively, whether the evidence currently of record may be adequate for final appellate review. The Board finds that the Veteran's credible testimony plausibly indicates his exposure to a number of hepatitis risk factors during his approximately 21 years of service, and the Veteran has been diagnosed with hepatitis C approximately 5 years following separation. There is no evidence significantly contradicting the Veteran's testimony, and no significant indication of any meaningful hepatitis risk factors outside of the Veteran's service. Highly significant, in the Board's view, is the Veteran's service treatment record showing objective evidence indicative of a liver function abnormality during active duty service in October 1991; the June 2011 VA examiner was unable to either discount or confirm that this finding may have been an early manifestation of the Veteran's later diagnosed chronic liver disease. The Board finds that the chronology of the Veteran's service and his diagnosis is suggestively supportive of the plausibility of the Veteran's claim, his credible lay testimony is supportive of the claim, and the objective medical documentation of a liver function abnormality during service is supportive of the Veteran's claim. There is no significant persuasive evidence outweighing the supportive evidence in this case. The Board finds, resolving reasonable doubt in the Veteran's favor, that a current disability (hepatitis C), in-service incurrence (credible risk factors and objective liver function abnormality), and a nexus between the current diagnosis and military service (hepatitis C is a chronic liver disease associated with the cited risk factors and abnormal liver function) are all adequately shown in this case. There is notable uncertainty in this matter presented by the evidence of record, and the evidence does not clearly preponderate in favor of the Veteran's claim; however, the Board finds no significant evidence presenting a competent medical opinion regarding nexus or current diagnosis that is contrary to the Board's findings discussed above. The Board finds that the evidence now reasonably establishes the occurrence of the pertinent in-service event/disability manifestations, the pertinent current diagnosis, and nexus (at least as likely as not) between the two. The evidence reasonably establishes the elements required for entitlement to service connection for hepatits C; service connection for hepatits C is warranted. In sum, after weighing the positive evidence with the negative evidence, the reasonable doubt raised by the evidence must be resolved in favor of the Veteran. 38 U.S.C.A. § 5107(b), 38 C.F.R. § 3.102. Resolving reasonable doubt in the appellant's favor, the Board finds that a grant of service connection for the Veteran's hepatits C is appropriate in this case. Veterans Claims Assistance Act of 2000 (VCAA) There is no need to undertake any review of compliance with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations in this case since there is no detriment to the veteran as a result of any VCAA deficiency in view of the fact that the full benefit sought by the veteran is being granted by this decision of the Board. See generally 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a). By letter dated in June 2009, the Veteran was furnished VCAA notice, including regarding the manner of assigning a disability evaluation and an effective date. He will have the opportunity to initiate an appeal from these "downstream" issues if he disagrees with the determinations which will be made by the RO in giving effect to the Board's grant of service connection. ORDER Service connection for hepatitis C is warranted. The appeal is granted. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs