Citation Nr: 1335942 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 09-46 109 ) 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 Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active service from October 1967 to October 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In April 2013, the Veteran testified at a hearing before the undersigned. A copy of the transcript is associated with the claims file and has been reviewed. The Board previously remanded this matter for additional development in June 2013. The development ordered in the June 2013 remand included attempting to obtain the Veteran's service treatment records, affording the Veteran a VA examination and obtaining outstanding VA treatment records. The Board is satisfied that there was compliance with the June 2013 remand directive. See Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, the Veteran's hepatitis C is related to active service. CONCLUSION OF LAW Hepatitis C was incurred in active service. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist In light of the favorable disposition, the Board finds that a discussion as to whether VA's duties to notify and assist the Veteran have been satisfied, including discussion of whether the April 2013 Board hearing was conducted in compliance with Bryant v. Shinseki, 23 Vet. App. 488 (2010) and 38 C.F.R. § 3.103(c)(2) (2012) is not required. The Board finds that no further notification or assistance is necessary, and that deciding the appeal at this time is not prejudicial to the Veteran. II. Analysis of Claim The Veteran contends that he developed hepatitis C as a result of blood exposure as during service. At the April 2013 Board hearing, the Veteran testified that he was exposed to blood from injured soldiers. 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 suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Hepatitis C is not a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) is not applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When an injury is incurred in combat, satisfactory lay or other evidence will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service even though there is no official record of such incurrence or aggravation. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b); Collette v. Brown, 82 F.3d 389, 393 (Fed.Cir.1996). While service connection for a combat-related injury may be based on lay statements alone, the competent and credible evidence must still show a current disability and a nexus to service. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Huston v. Principi, 18 Vet. App. 395, 402 (2004); Clyburn v. West, 12 Vet. App. 296, 303 (1999); Beausoleil v. Brown, 8 Vet. App. 459, 464 (1996); Libertine v. Brown, 9 Vet. App. 521, 522-23 (1996) (holding that U.S.C.A. § 1154(b) can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to a current disorder). Medically recognized risk factors for hepatitis C include: (a) transfusion of blood or blood product before 1992; (b) organ transplant before 1992; (c) hemodialysis; (d) tattoos; (e) body piercing; (f) intravenous drug use (with the use of shared instruments); (g) high-risk sexual activity; (h) intranasal cocaine use (also with the use of shared instruments); (i) accidental exposure to blood products as a healthcare worker, combat medic, or corpsman by percutaneous (through the skin) exposure or on mucous membrane; and (j) other direct percutaneous exposure to blood, such as by acupuncture with non-sterile needles, or the sharing of toothbrushes or shaving razors. See VBA Training Letter 211A (01-02), dated April 17, 2001. Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). 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 must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102, Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (finding that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis herein focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (holding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Veteran had active duty service from October 1967 to October 1969. The DD Form 214 shows that the Veteran received the Combat Infantryman Badge, which is indicative of combat service. The Board accepts the Veteran's assertions of exposure to blood during service as credible and consistent with the circumstances of his combat service. 38 U.S.C.A. § 1154(b). In this case, the Veteran's service treatment records are not available for review, as indicated by an August 2013 Formal Finding of Unavailability. Under such circumstances, the Court has held that there is a heightened obligation on the part of VA to explain findings and conclusions and to consider carefully the benefit of the doubt rule. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Post-service VA medical records indicate that the Veteran was diagnosed with hepatitis C in February 2007. The Veteran had a VA examination in June 2013. The VA examiner reviewed the claims file. During the examination, the Veteran reported that he had been exposed to blood while serving in Vietnam. He said he had sustained an open wound which was treated in the field. He said he was exposed to blood from others when one of his buddies stabbed himself and another died. He said the blood splattered in his face and eyes. The VA examiner noted that the Veteran's risk factors include accidental exposure to blood by health care workers (to include combat medic or corpsman) and high risk sexual activity. The VA examiner stated that he was unable to determine without resort to mere speculation if hepatitis is caused by or a result of military service. The VA examiner explained that, to acquire hepatitis C, one normally requires a large and percutaneous exposure of blood. The VA examiner noted that, though it has been conceded that there was blood contact from active theatre, there is no way of determining if the Veteran had a "large" and "repeated" percutaneous exposure of blood. The VA examiner noted that there was some conflicting history. The Veteran denied ever having a sexual partner other than his wife. Yet, he also stated that he used protection in all of his sexual encounters. The VA examiner observed that an infectious disease note stated that the Veteran had multiple sexual partners. The VA examiner stated that he could not determine without resort to speculation which account is accurate, and if there were multiple sexual partners, what time frame they occurred. The VA examiner indicated that, for these reasons, he could not determine without resort to mere speculation whether hepatitis C was related to service. He also noted that the probable date of infection was 1968, as a result of blood exposure from wounds and dead bodies. In sum, the evidence of record establishes that the Veteran had a recognized hepatitis risk factor of accidental exposure to blood products during service. At the Board hearing, the Veteran credibly testified that risk factors for hepatitis C were not present prior to service of after separation from service. Notably, the June 2013 VA examiner, while providing a generally speculative opinion, also indicated the probable date of infection was 1968 due to blood exposure from wounds and dead bodies. Based upon the foregoing and resolving reasonable doubt in the Veteran's favor, the Board finds that hepatitis C was incurred in service. Accordingly, service connection for hepatitis C is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for hepatitis C is granted. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs