Citation Nr: 1705203 Decision Date: 02/21/17 Archive Date: 02/28/17 DOCKET NO. 13-06 352A ) 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 Appellant represented by: Daniel G. Curry, Attorney ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The Veteran had active service from February 1972 to February 1975. This matter is before the Board of Veterans' Appeals (Board) on appeal of a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In a March 2015 decision, the Board denied the Veteran's claim for service connection for hepatitis C. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court) which, in a July 2016 Memorandum Decision, reversed the Board's March 2015 decision as to its denial of service connection for hepatitis C and remanded the matter for VA to determine the appropriate disability rating and effective date for that award. The issue of an appropriate initial disability rating and effective date following the award of service connection for hepatitis C is addressed in the REMAND portion of the decision below, and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's currently diagnosed hepatitis C was as likely as not caused by in-service immunization by air gun. CONCLUSION OF LAW The criteria for entitlement to service connection for hepatitis C have been met. 38 U.S. C .A. §§ 1110, 5107 (West 2014); 38 C .F.R. § 3.303 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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, 3.326(a) (2016). With respect to the claim decided herein, the Board is granting in full the benefit sought on appeal. Accordingly, without deciding that any error was committed with respect to the duty to notify or the duty to assist, any such error is harmless and need not be further considered. Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In addition, service connection may 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). Risk factors for hepatitis C include intravenous drug use, blood transfusions before 1992, hemodialysis, intranasal drug use, high-risk sexual activity, accidental exposure while a health care worker, and various kinds of percutaneous exposure such as tattoos, body piercing, acupuncture with non-sterile needles, and shared toothbrushes or razor blades. See VBA letter 211B (98-110) Nov. 30, 1998. According to VA Fast Letter 04-13 (June 29, 2004), hepatitis C is spread primarily by contact with blood and blood products. The highest prevalence of hepatitis C infection is among those with repeated, direct percutaneous (through the skin) exposures to blood (e.g., injection drug users, recipients of blood transfusions before screening of the blood supply began in 1992, and people with hemophilia who were treated with clotting factor concentrates before 1987). The Fast Letter further states that, although transmission through air gun injection is biologically plausible, there have been no case reports of hepatitis C being transmitted by such means. The Fast Letter concludes that it is essential that the examination report upon which the determination of service connection is made include a full discussion of all modes of transmission, and a rationale as to why the examiner believes the particular mode of transmission was the source of a veteran's hepatitis C. In the July 2016 Memorandum Decision, the Court found that the medical evidence of record identified a link between the Veteran's hepatitis C and air gun inoculations that he received during service. The Court considered a November 2010 private medical opinion from B.S. Sreenath, M.D., as well as an opinion from C.L. Koah, relating the Veteran's hepatitis C to air inoculations he received during service. Moreover, the Court noted that the Board cited to the VA Fast Letter and found that "transmission" of hepatitis C "through air gun injection was biologically plausible." On the other hand, the Court noted that a September 2010 VA examiner's conclusion that she could not say that the Veteran's air gun injections caused his hepatitis C without speculation provided neither positive nor negative support for service connection. Based on the foregoing, the Court reversed the Board's March 2015 decision in regard to service connection for hepatitis. Accordingly, service connection for hepatitis C is warranted. ORDER Entitlement to service connection for hepatitis C is granted. REMAND In the July 2016 Memorandum Decision, the Court remanded the case for the assignment of an appropriate disability rating and effective date following the award of service connection for hepatitis C. The Board's jurisdiction does not permit it to make such determinations in the first instance. The Veteran must be afforded de novo consideration of these matters by the RO. Accordingly, the case is REMANDED for the following action: 1. Issue a rating decision which implements the Board decision herein which grants service connection for hepatitis C. The rating decision must assign an initial disability rating and an effective date for the award of service-connection for hepatitis C. Any development necessary to determine the appropriate rating should be accomplished. 2. Notice of the determination, and his appellate rights must be provided to the Veteran and his representative. Advise the Veteran that if he disagrees with the disability rating and/or effective date assigned for hepatitis C, he is required to file a separate appeal concerning these "downstream" issues. Only if the Veteran timely perfects an appeal as to any downstream issue should such be forwarded to the Board for appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs