Citation Nr: 1701100 Decision Date: 01/13/17 Archive Date: 01/27/17 DOCKET NO. 12-24 785 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for hepatitis C, on the basis of substitution. 2. Entitlement to service connection for liver cancer, to include as secondary to a service-connected disability, on the basis of substitution. REPRESENTATION Appellant represented by: Mary M. Long, Attorney WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD T. Berryman, Associate Counsel INTRODUCTION The Veteran had active service in the Army from August 1972 to April 1974. The Veteran died in May 2014. The appellant is the Veteran's surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In connection with this appeal, the Veteran and the appellant testified at a video conference hearing before a Veterans Law Judge (VLJ) in February 2013. A July 2016 letter informed the appellant that the VLJ who conducted the February 2013 hearing had retired from the Board. In a response dated October 14, 2016, the appellant indicated that she did not wish to appear at an additional Board hearing. In March 2014, the Board remanded the Veteran's claims for further development. The Board is satisfied that there was at the very least substantial compliance with its remand directives. See Dyment v. West, 13 Vet. App. 141, 146-157 (1999). FINDINGS OF FACT 1. The Veteran died in May 2014. The certificate of death lists the cause of death as complications of end stage liver disease and chronic hepatitis C. 2. Resolving reasonable doubt in favor of the appellant, the evidence supports a finding that the Veteran's hepatitis C, which resulted in liver cancer, was due to his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for hepatitis C have been met. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2016). 2. The criteria for service connection for liver cancer have been met. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In order to establish entitlement to service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease of injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Secondary service connection may be granted for a disability which is proximately due to, the result of, or aggravated by an established service-connected disorder. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran sought service connection for hepatitis C and liver cancer secondary to his hepatitis C. He filed his claims for service connection in March 2011, which were denied in a July 2011 and August 2011 rating decisions. He asserted that his hepatitis C was due to receiving vaccinations by airgun while in service. The Veteran died in May 2014. In August 2014, the appellant was granted her claim for substitution. In a November 2014 rating decision, service connection for hepatitis C and liver cancer was denied. The Veteran's medical records show that he was diagnosed with hepatitis C in 2006 and with liver cancer in 2010. At the February 2013 hearing, the Veteran credibly testified that he received his immunizations during service by an airgun used on a line of soldiers. He testified that the airgun was not sterilized between uses. He testified that during his service, he would help drive an ambulance and was exposed to blood during that time. He testified that while he had a tattoo prior to entering service, he performed the tattooing himself as a child with a sterilized needle alone in his parents' home. He testified that no one in his family was diagnosed with hepatitis C. He testified that he never used IV drugs or any illicit drugs. He testified that he would drink a beer on occasion. He testified that he never received a blood transfusion. He testified that he was not exposed to any blood after active service. He concluded that the only reasonable way he was exposed to hepatitis C was through the airgun immunizations during active service. There is no reason to doubt his credibility. In March 2013, the Veteran's physician Vivek Kohil, M.D., opined that the Veteran's hepatitis C was just as likely as not acquired during his active service from airgun immunizations. In April 2016, a VA examiner had the opportunity to review the Veteran's claims file. The VA examiner opined that the Veteran's hepatitis C was less likely than not due to his active service. The VA examiner reported that the Veteran's past history of tattoos, his history of IV drug use, and surgery prior to entering service all were more likely than not the cause of his hepatitis C. The Board appreciates the thoroughness of this opinion, but ultimately finds that a number of the risk factors that were cited as possibly causing the Hepatitis C where refuted by the Veteran's credible testimony. In October 2016, David E. Brister, M.D., reported that he served with the Veteran in Korea. Dr. Brister reported that the Veteran did not engage in any high risk behavior for hepatitis C. Dr. Brister had the opportunity to review the Veteran's claims file. Dr. Brister opined that the Veteran's hepatitis C was at least as likely as not due to airgun immunizations during active service. As such, when weighing the evidence of record, the Board finds that at most the evidence for and against the Veteran's claims are in relative equipoise. In such circumstances, the regulations dictate that reasonable doubt is to be resolved in the Veteran's favor. Accordingly, the appellant's claims for service connection for hepatitis C and liver cancer are granted. In light of this result, a detailed discussion of VA's various duties to notify and assist is unnecessary (because any potential failure of VA in fulfilling these duties is harmless error). ORDER Service connection for hepatitis C, on the basis of substitution, is granted. Service connection for liver cancer, on the basis of substitution, is granted. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs