Citation Nr: 1751531 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 08-19 529A ) 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 is represented by: Allen Gumpenberger, Agent WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Banister, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1973 to January 1976 and from September 1976 to November 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2010, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This matter was previously before the Board in September 2010, August 2012, and November 2013 and was remanded for further development. The requested development was completed, and the case has been returned to the Board for further appellate action. The Board acknowledges that an appeal has been perfected but not yet certified to the Board regarding the issues of entitlement to service connection for a traumatic brain injury and posttraumatic stress disorder and entitlement to a total disability rating based on individual unemployability. However, a review of the claims file reveals that the RO is still taking action on those issues. As such, the Board will not accept jurisdiction over them at this time, but they will be the subject of a subsequent Board decision, if otherwise in order. FINDING OF FACT The probative evidence of record demonstrates that it is at least as likely as not that the Veteran contracted hepatitis C during service. CONCLUSION OF LAW The criteria for establishing entitlement to 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 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA 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). Service connection may be established 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. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The Veteran seeks service connection for hepatitis C, which he believes he contracted during service. He asserts that he was frequently exposed to bloodborne pathogens through contact with blood and needle sticks while working as a medical corpsman during service. He also claims that he may have contracted it through a blood transfusion that he received at a civilian hospital in Germany following a December 1976 in-service automobile accident. Upon review of the record, the Board finds that the probative evidence of record demonstrates that it is at least as likely as not that the Veteran contracted the hepatitis C virus during service. Service personnel records confirm that the Veteran's military occupational specialty was a medical corpsman. Although the record does not show any evidence of needlestick injuries during service, the Veteran testified that he, like many other service members working in the medical field, often did not report needlestick injuries because he was busy caring for patients and wanted to do his job well in order to make rank. The Veteran also submitted a publication from the Department of Health and Human Services indicating that an estimated 600,000 to 800,000 healthcare work-related needlestick injuries occur every year in the United States, which put healthcare workers at risk of exposure to bloodborne illnesses, including hepatitis C, and about half of them go unreported. Service treatment records also confirm that the Veteran was hospitalized for approximately three months after a December 1976 motor vehicle accident. Although the record does not indicate that the Veteran received a blood transfusion, VA has been unable to obtain records from the civilian hospital where the Veteran was resuscitated and stabilized immediately after the accident. Thereafter, laboratory testing performed in May 1977 revealed elevated liver function studies. Post-service treatment records show elevated liver function studies again in December 1987. The Board notes that the hepatitis C virus was not discovered until 1989, and there was no effective test for the presence of hepatitis C until the 1990's. See www.cdc.gov/knowmorehepatitis/Timeline.htm. The Veteran was diagnosed with hepatitis C in April 2004. A May 2005 VA treatment record shows that the only risk factor for hepatitis C identified by the Veteran's treating VA physician was his prior work as an Army medical corpsman. The Veteran underwent a VA examination in June 2007, and the examiner opined that it would be speculative to conclude that the Veteran's hepatitis C was contracted during active duty. The examiner reasoned that intranasal cocaine use has been associated with hepatitis C. However, the Veteran has repeatedly denied any history of intranasal cocaine use. Moreover, treatment records dating several years prior to his service connection claim for hepatitis C show that he consistently denied any drug use other than marijuana. The VA examiner also reasoned that the elevated liver function tests during and after service were "at least as likely as not" a result of chronic alcohol use, implying that the results were just as likely to be due to another cause. The Veteran underwent another VA examination in October 2010, and the examiner opined, in relevant part, that the Veteran had multiple potential exposures to the hepatitis C virus before, during, and after service and that it would be speculative to say that one exposure was more significant than the others. However, a review of the VA examination report indicates that the potential exposures considered by the examiner included high risk sexual behavior before and during service, claimed blood exposure and needlestick injuries during service, a claimed blood transfusion during service, and being in jail. As there is no evidence documenting hepatitis C prior to service, the Veteran is presumed to have been in sound condition upon his entrance into active duty. See 38 C.F.R. § 3.304(b) (2017). Thus, any pre-service risk factors identified by the examiner are of little relevance. Furthermore, the examiner did not indicate when the Veteran was in jail. A review of the record reveals one reference to being incarcerated, and that is a psychiatric treatment record dated over two years after the Veteran was diagnosed with hepatitis C. That record indicates that the Veteran reported recently spending 30 days in jail for driving under the influence. Thus, the Board assigns little probative value to that risk factor. All of the other potential risk factors for hepatitis C identified by the examiner occurred during the Veteran's active duty service. Based on the foregoing, the Board finds that the probative evidence of record is at least in equipoise as to whether the Veteran contracted hepatitis C during service. Therefore, resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for hepatitis C is warranted. See 38 C.F.R. § 3.102. ORDER Service connection for hepatitis C is granted. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs