Citation Nr: 1646260 Decision Date: 12/09/16 Archive Date: 12/21/16 DOCKET NO. 12-22 510 ) 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: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. C. Wilson, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1977 to January 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In April 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). In May 2016, the Veteran waived the right to initial RO review of relevant and noncumulative evidence received in May 2016. No additional action is warranted in this regard. See 38 C.F.R. §§ 19.31, 20.1304(c) (2015). FINDING OF FACT The evidence is in relative equipoise as to whether hepatitis C is etiologically related to the Veteran's receipt of air gun immunization injections in service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for hepatitis C have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be established for disability resulting from personal injury suffered or disease contracted in the 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, 1131. 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 service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury that pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). VA Fast Letter 04-13, which addresses the relationship between immunization with air gun injectors and hepatitis C infection, indicates that "[t]he large majority of [hepatitis C (HCV)] infections can be accounted for by known modes of transmission, primarily transfusion of blood products before 1992, and injection drug use. Despite the lack of any scientific evidence to document transmission of HCV with air gun injectors, it is biologically plausible. It is essential that the report upon which the determination of service connection is made includes a full discussion of all modes of transmission, and a rationale as to why the examiner believes the air gun was the source of the veteran's hepatitis C." See VA Fast Letter 04-13 (June 29, 2004). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a) (West 2014); 38 C.F.R. § 3.303(a). Here, during his April 2016 Board hearing and in multiple statements, the Veteran asserted that he was exposed to hepatitis C during service by way of air gun injectors that were used for mass inoculations. The Veteran and his representative noted correctly that VA has conceded that the Veteran served during a time when air gun injectors were used and that the Veteran's exposure to a hepatitis C risk factor is conceded in this regard. See March 2011 Rating Decision. During the hearing, the Veteran's representative also asserted that the National Institutes of Health has acknowledged that people do not demonstrate symptoms of hepatitis C until the virus causes liver damage, which can take ten or more years to occur. During his hearing, the Veteran testified that falsified information has been added to his medical treatment records with regard to his exposure to risk factors for hepatitis C. More specifically, he denies that he has engaged in the following activities that have been identified as risk factors for hepatitis C-intranasal cocaine use, intravenous drug use, having multiple sex partners, tattoos, blood transfusions, surgeries, and alcohol abuse. The Veteran asserts that his only risk factor for hepatitis C was receiving air gun vaccinations during service. In addition to denying drug use at the hearing, the Veteran submitted a copy of AF Form 2030, United States Air Force Drug Abuse Certificate, dated in November 1976 in which the Veteran certified at that time that he had never used or possessed dangerous drugs, narcotics (which included any opiates or cocaine), LSD, or any hallucinogens. In April 2001, a VA doctor noted a recent finding of a positive hepatitis C antibody, a history of elevated liver function tests (LFTs) since 1995, a history of one episode of intravenous drug use while on active duty during the period 1976 to 1981, and a history of mild alcohol use that had decreased since the Veteran was diagnosed with hepatitis C. VA treatment records dated in September 2001, August 2009, and November 2009 note similar findings. In light of treatment records that show that the Veteran currently has hepatitis C, which is an ongoing disability that is currently asymptomatic, and VA's concession that the Veteran served during a time when air gun injectors were used and that the Veteran was exposed to this hepatitis C risk factor, the Board finds that the only element of service connection that remains to be addressed is whether this potential exposure to hepatitis C during service was as likely to have resulted in the Veteran's current hepatitis C as any other potential cause or factor. This question was addressed by a VA examiner in February 2011. At that time, the examiner documented the Veteran's report that he did not have tattoos, has not engaged in high risk sexual behavior, has not used drugs, does not have a history of alcohol use/abuse, does not have a history of hospitalization or surgery, does not have a history of organ transplant, and does not have a history of blood or blood-product transfusion. The examiner noted, however, that the Veteran has a history of post-service intranasal cocaine use, which is a chronic liver disease risk factor, based on the aforementioned September 2001 treatment record. Based on this finding, the examiner opined that the Veteran's intranasal cocaine use risk factor is the most likely cause of his hepatitis C. The examiner also opined that hepatitis C was less likely as not caused by or a result of/secondary to air gun immunization during military service because the September 2001 treatment record clearly notes a history of nasal cocaine use, which is a significant risk factor for hepatitis C and a more significant risk factor for hepatitis C than air gun injections. The Board is not persuaded by the February 2011 medical opinion concerning the etiology of the Veteran's hepatitis C because the examiner used the supposition that the Veteran had a history of nasal cocaine use to support her opinion but failed to address the Veteran's reports that he has neither abused cocaine nor engaged in other drug use. Further, the examiner did not provide rationale to support her conclusion that nasal cocaine use is a more significant risk factor than air gun injections. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (noting that most of the probative value of a medical opinion comes from its reasoning). In May 2016, the Veteran submitted a private medical opinion from Dr. S.P. who opined that the Veteran's hepatitis C was caused by or is the direct result of the use of an air gun for inoculation during basic training in service, and hepatitis C was most likely caused by or the result of the unsanitary use of air guns during mass inoculations. Dr. S.P. explained that these conclusions were derived from his review of the Veteran's STRs and post-service treatment records. Similar to the Board's finding with regard to the February 2011 VA medical opinion, the Board finds that Dr. S.P.'s opinion is not supported by adequate rationale, as he did not provide a full discussion of all possible modes of transmission of hepatitis C to support his opinion regarding the relationship between the Veteran's in-service inoculations and his current condition. See Nieves-Rodriguez, 22 Vet. App. at 304. In light of the foregoing, the Board finds that the evidence is in a state of relative equipoise regarding whether there is a nexus between the Veteran's in-service inoculations by air gun injector and his current hepatitis C. Thus, the Board must resolve all reasonable doubt in the Veteran's favor and finds that the evidence is sufficient to support a grant of service connection. Accordingly, the Board finds that service connection for hepatitis C is warranted. See 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2015). ORDER Service connection for hepatitis C is granted. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs