Citation Nr: 1756763 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 12-20 370 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUE Entitlement to service connection for hepatitis-C, to include as due to an air inoculation gun. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Mountford, Associate Counsel INTRODUCTION The Veteran had active military service from December 1973 to December 1976. This matter comes before the Board of Veterans' Appeals (Board) from the January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire. The Veteran appeared at a July 2014 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. This matter was previously before the Board in August 2016 and was remanded for further development. FINDING OF FACT The Veteran's hepatitis-C is not related to his military service. CONCLUSION OF LAW The criteria for service connection for hepatitis-C have not been met. 38 U.S.C. §§ 1110, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION As noted in the Introduction, the Veteran was afforded a hearing before the undersigned VLJ in July 2014. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ asked the Veteran specific questions concerning the symptoms of and treatment for his hepatitis-C. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate the claim. In addition, the Veteran was assisted at the hearing by an accredited representative from DAV. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or his representative. Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearing. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). The Board observes that this case was previously remanded by the Board in August 2016. The purpose of this remand was to obtain an addendum opinion which was completed in September 2016. The Board therefore finds that there was substantial compliance with the prior remand order, as is discussed more fully below, and the Board may continue with its determination. Stegall v. West, 11 Vet. App. 268 (1998). Service connection may be established for a disability due to a disease or injury that was incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, in order to prevail on the issue of service connection, the evidence must show: (1) the existence of a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical and lay evidence for the issue on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran contends that his current hepatitis-C was caused by the use of air inoculation guns used for vaccination purposes in the military. In May 2015, the Veteran underwent a VA examination. The examiner noted that the Veteran was diagnosed with hepatitis-C in 2004. The examiner stated that the Veteran's provider indicated that although the Veteran denied illicit drug use, the records note use of illicit drugs including hallucinogens and cocaine 20-30 years prior. In addition, the examiner cited documentation of a human bite while working in a psych hospital in 1995. Finally, the examiner noted that the Veteran does not have any tattoos. The May 2015 examiner opined that it is less likely than not that the Veteran's hepatitis-C incurred in or was caused by the claimed in-service injury, event, or illness. The examiner acknowledged that the Veteran had inoculation of vaccines with an air gun, which was routinely done in 1973 on entrance to active duty. The examiner referenced the Veteran's records including his history of drug use and a human bite. The examiner elaborated that there is evidence that the Veteran's suspicion of regular illicit drug use in the 1970's as a possible link to the Veteran's hepatitis-C. The examiner stated that it is established that hepatitis-C can be transmitted by intranasal snorting of cocaine by shared devices and that this cannot be ruled out as a possible etiology of the Veteran's hepatitis-C. In August 2016, the Board found the May 2015 examination opinion inadequate because the examiner failed to adequately address whether the Veteran's hepatitis-C is related to his air gun inoculations in service. Thereby, pursuant to the Board's August 2016 remand, an addendum opinion was obtained in September 2016. A different examiner similarly opined that it is less likely than not that the Veteran's hepatitis-C was caused by his military service. The examiner stated that he reviewed the Veteran's claims file, and specifically reviewed the May 2015 examination and the Board's criticism of it. The examiner went on to say that the issue of whether air gun vaccination constitutes a nexus for hepatitis-C has been "vexing and remains unresolved." The examiner cited the Veterans Benefits Administration's Fast Letter 04-13 (06/29/2004) that acknowledges biological plausibility between air gun inoculations and hepatitis-C. However, the examiner stated that to his knowledge, there is no definitive medical literature that exists that settles this issue. The examiner stated that the likelihood that air gun vaccinations were the cause of the Veteran's hepatitis-C depends overwhelmingly on the presence or absence of other risk factors. The examiner acknowledged that air gun vaccinations are a plausible, but uncommon, risk factor, as well as the fact that hepatitis-C cases occur in the absence of any known risk factor. However, the examiner stated that the Veteran's history of substance abuse is of greatest relevance, as it constitutes a powerful factor, and in fact, is the presumptive cause of the Veteran's hepatitis-C. The Board recognizes that the examiner did state that the Veteran may have contracted hepatitis-C from his vaccinations in service. However, the examiner stated that the risk from substance abuse "is so much higher than the possible risk from his vaccinations that I must agree with the previous examiner." The examiner concluded that it is less likely than not that this Veteran's hepatitis-C is related to his period of active service, to include his air gun inoculations. At his July 2014 Board hearing, the Veteran testified that the only illegal substances that he used was marijuana and LSD on a single occasion in 1975. However, the Board recognizes an October 1974 service treatment emergency room record that states that the Veteran took acid and was in a drug program. The Board notes that it is not deciding whether or not the Veteran engaged in illegal substances, but rather the likelihood of hepatitis-C risk factors overall. The question in this case is it at least as likely as not (50% or greater) that the cause of the Veteran's disability was an event that occurred in around 1973, more than 40 years ago. While it is not impossible (0% percent chance), for the reason cited above, the Board cannot find it to be as likely as not (50% or more). The Board finds the September 2016 VA examiner's opinion probative and credible in its determination that it is less likely than not that the Veteran's hepatitis-C was caused by his military service, to include air gun inoculations. Thereby, service connection for hepatitis-C is not warranted. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107 (b). VA's Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.159, 3.326 (2017); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As for the duty to notify, a VCAA letter was sent to the Veteran in August 2009. As for the duty to assist, the Veteran's service treatment records and VA medical treatment records have been obtained. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The Veteran has not identified, and the record does not otherwise indicate, any additional relevant medical records that have not been obtained and associated with his file. Additionally, VA examinations have been secured in connection with the current claim satisfying VA's duty to assist with respect to obtaining a VA examination. 38 C.F.R. § 3.159(c)(4). VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on his claim at this time. ORDER Service connection for hepatitis-C is denied. JOHN CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs