Citation Nr: 1704038	
Decision Date: 02/09/17    Archive Date: 02/23/17

DOCKET NO.  13-01 618	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle, Washington


THE ISSUE

Entitlement to service connection for hepatitis C.


REPRESENTATION

Appellant represented by:	Washington Department of Veterans Affairs


ATTORNEY FOR THE BOARD

A. Shawkey, Counsel 



INTRODUCTION

The Veteran served on active duty in the U.S. Army from January 1967 to February 1969.

This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington.

In February 2015, the Board remanded this appeal for further evidentiary development, to include obtaining another VA medical nexus opinion.  In November 2015, an opinion was obtained, and a Supplemental Statement of the Case was subsequently issued.  As such, there has been substantial compliance with the Board's prior remand directives.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where there was substantial compliance with Board's remand instructions).

In December 2016, pursuant to 38 U.S.C.A. § 7109 (West 2014) and 38 C.F.R. § 20.901 (2016), the Board obtained a medical expert opinion from the Veterans Health Administration (VHA).  The Board finds that the VHA opinion is adequate for adjudication purposes as the clinician reviewed the history and provided an opinion supported by a rationale.  Although pursuant to 38 C.F.R. § 20.903(a), the Veteran and his representative must be given notice of the VHA opinion and be afforded a 60 day period to respond, the Board finds that the Veteran has not been prejudiced in this regard in light of the favorable decision that follows which represents a full grant of the benefits being sought.  See AB v. Brown, 6 Vet. App. 35, 39 (1993).

This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems.



FINDING OF FACT

The Veteran's hepatitis C is attributable to service.


CONCLUSION OF LAW

The Veteran's hepatitis C was incurred in or aggravated by active service.  38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2016).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2016).  Given the favorable action taken in this appeal, no discussion of the VCAA is required.

II.  Analysis

Service connection may be granted for a disability resulting from disease or injury that was incurred in, or aggravated by, 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 if all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). 

To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement.  Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004).  The requirement that a current disability exist is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim.  McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); see also Romanowsky v. Shinseki, 26 Vet.App. 289, 293 (2013) (holding that the Board must address recent pre-claim evidence in assessing whether a current disability exists, for purposes of service connection, at the time the claim was filed or during its pendency).

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 appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

In the instant case, in terms of a diagnosis of hepatitis C, the medical evidence shows that the Veteran was initially diagnosed as having hepatitis C in August 2007.  

As for in-service incurrence or aggravation of a disease or injury, the Veteran attributes his hepatitis C to two risk factors in service.  First, he reports that he thinks that he received a blood transfusion in June 1968 when he underwent right knee surgery.  Notably, there is no documentation of a blood transfusion in his service treatment records.  Second, he reports that he contracted hepatitis C from air gun inoculations that he received during service.  In this regard, service treatment records show that he received immunizations between January and March 1967, although there is no indication from these records as to the method of his immunization; that is, by air gun injector or some other method.  

As far as other possible risk factors, a January 2009 hepatitis risk factor questionnaire reflects that the Veteran denied the use of intravenous drugs or intranasal cocaine.  He denied high risk sexual activity, hemodialysis, tattoos or body piercings, sharing toothbrushes or razor blades or acupuncture with non-sterile needles.  He further denied exposure to body fluids as a healthcare worker.  

In addressing the Veteran's report that he received inoculations by air gun injectors in service, the Board notes that he is competent to report that he was inoculated by air gun injectors.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).  Moreover, his statement is consistent with his service and the Board has no reason to question the credibility of his statement in this regard.  See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).

Thus, the Veteran has satisfied two of the three requirements for service connection; that is, the evidence shows that he currently has a hepatitis C disability and incurred an injury, i.e., a hepatitis C risk factor, in service.  Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004).  In terms of the third requirement under Shedden for service connection, that is, a causal relationship between the Veteran's hepatitis C and inservice risk factor of inoculations by air gun injections, there is both positive and negative evidence. 

The negative evidence consists of a VA opinion in November 2015 by a physician's assistant who reviewed the Veteran's claims file and opined that chronic hepatitis C was less likely than not incurred in or caused by a claimed in service injury, event, or illness, to include air gun inoculations.  She reported that it was more likely that the Veteran had hepatitis C from post-service blood born pathogen exposure.  She reasoned that the Veteran was not diagnosed as having hepatitis C until July 2007, commenting that this would make for an extremely long undocumented period between service and diagnosis.  In addition, the examiner reasoned that others who were vaccinated on the same day with the same air injector had not come forward with a hepatitis C diagnosis.  As such, the examiner opined that it was not likely the Veteran's hepatitis C had its onset in or was caused by service.  

The Veteran responded to the examiner's opinion above by explaining that a number of individuals who were inoculated with him became casualties of war, suggesting that they did not live long enough to be diagnosed as having hepatitis C.

The positive medical opinion was authored by a VA staff physician of gastroenterology/hepatology who rendered a medical expert opinion on the matter in December 2016 at the Board's request.  After reviewing and discussing in detail pertinent medical literature, the results of pertinent VA studies, and the Veteran's service and postservice treatment records and medical history, the physician opined that it is at least as likely as not that the Veteran' chronic hepatitis C was incurred in service due to air gun inoculations received between January and March 1967.  He pointed out that medical literature and VA studies show that it was not uncommon for servicemen to be bleeding before they got to the end of the vaccination lines due to jet injectors bringing blood to the service of the skin and that the injectors could have been contaminated. 

The law is clear.  Pursuant to the "benefit-of-the-doubt" rule, where there is "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue.  38 U.S.C.A. § 5107(b) (West 2014).  Although there is evidence against the claim insofar as the November 2015 physician's assistant opined that chronic hepatitis C was less likely than not incurred in or caused by a claimed in service injury, event, or illness, to include air gun inoculations, in light of the qualifications of the VHA physician, his thorough review and accurate report of the Veteran's medical history, and his consideration of pertinent medical literature and studies, the Board affords greater weight to his opinion than to the November 2015 VA opinion.  See Guerrieri v. Brown, 4 Vet. App. 467 (1993) (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board).   

The Board therefore concludes that, with the benefit of the doubt resolved in the Veteran's favor, a grant of service connection for hepatitis C is warranted.  See Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990) ("[T]he 'benefit of the doubt' standard is similar to the rule deeply embedded in sandlot baseball folklore that 'the tie goes to the runner' . . . . [I]f . . .  the play is close, i.e., 'there is an approximate balance of positive and negative evidence,' the veteran prevails by operation of [statute].").  This grant renders moot all other theories advanced in support of the claim for service connection for hepatitis C, to include due to an inservice blood transfusion.


ORDER

Service connection for hepatitis C is granted.



____________________________________________
ANTHONY C. SCIRÉ, JR.
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs