Citation Nr: 1752964	
Decision Date: 11/17/17    Archive Date: 11/22/17

DOCKET NO.  14-08 699	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUE

Entitlement to service connection for hepatitis C.  


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

K. Thompson, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Army from September 1969 to December 1970.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan.

In November 2014, a Travel Board hearing was held before the undersigned; a transcript of the hearing is associated with the record.

In June 2015, the Board remanded the claim for further development and adjudicative action.  The requested development has been completed and associated with the claims file.  See Stegall v. West, 11 Vet. App. 268 (1998).  


FINDINGS OF FACT

The evidence is in equipoise as to whether the Veteran's hepatitis C was incurred in active service.


CONCLUSION OF LAW

The criteria for service connection for hepatitis C have been met. 38 U.S.C. § 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

Under the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations, VA has a duty to notify and assist the claimant in substantiating a claim for VA benefits.  See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  The Veteran's claim has been considered with respect to VA's duty to notify and assist.  The outcome below is favorable.  Thus, no conceivable prejudice to the Veteran could result from this adjudication.  See Bernard v. Brown, 4 Vet. App. 384, 393 (1993). 

II.  Service Connection

Service connection may be granted for disabilities due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.  Service connection may also be granted for any disease initially diagnosed after discharge when the evidence establishes that disability was incurred in service.  38 C.F.R. § 3.303(d).

To establish entitlement to service connection, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability or at least has since filing the claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or injury; and (3) competent and credible evidence of a nexus or link between the in-service injury or disease and the current disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

In its determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77.

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.  When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

The Veteran contends that he contracted hepatitis C during service through jet injector inoculations.

Medically recognized risk factors for hepatitis C include: (a) transfusion of blood or blood product before 1992; (b) organ transplant before 1992; (c) hemodialysis; 
 (d) tattoos; (e) body piercing; (f) intravenous drug use (with the use of shared instruments); (g) high-risk sexual activity; (h) intranasal cocaine use (also with the use of shared instruments); (i) accidental exposure to blood products as a healthcare worker, combat medic, or corpsman by percutaneous (through the skin) exposure or on mucous membrane; and (j) other direct percutaneous exposure to blood, such as by acupuncture with non-sterile needles, or the sharing of toothbrushes or shaving razors.  See M21-1, III.iv.4.l.2.e.

Regarding immunization with a jet air gun injector, information in M21-1 indicates that despite the lack of any scientific evidence to document transmission of the Hepatitis C virus with air gun injectors, it is biologically possible.  A medical report linking hepatitis to air gun injectors must include a full discussion of all potential modes of transmission and a rationale as to why the examiner believes the air gun injector was the source for the hepatitis infection.  Id.

The Board notes that the Veteran is currently diagnosed with hepatitis C, as noted in the September 2015 VA examination and in his private medical treatment records. Therefore, the Veteran has a current disability as required by 38 C.F.R. § 3.303.

Service treatment records show that the Veteran received several inoculations in service but are negative for any findings of hepatitis C. 

With regard to his risk factors, the Veteran testified at the November 2014 Travel Board hearing that he never had any tattoos, body piercings, blood transfusions, organ transplants or accidental needle sticks.  Private treatment records are negative for any illicit drug abuse.  

The Veteran also testified that he did not observe that the inoculation instruments used to administer the immunizations were sterilized after each injection into a veteran.  The Veteran is competent to report lay-observable events and symptoms. See Layno, supra at 70. 

A September 2015 VA examination reflects that the Veteran was diagnosed with hepatitis C in 1975 and noted that the Veteran denied any risk factors after discharge from service.  The examiner opined that medical literature does not support the theory that air guns used for immunizations caused hepatitis in the Veteran and thus that it was less likely than not that the Veteran's hepatitis C was caused by or related to his military service.

The Veteran's private physician, Dr. J.J.G., submitted medical opinions in February 2015 and September 2015 opining that the Veteran's hepatitis C is more likely than not related to his military service.  In the September 2015 opinion, the physician addressed other potential modes of transmission and noted that the Veteran did not exhibit high risk behaviors, including drug abuse or inappropriate use of needles to be able to contract hepatitis C.  Moreover, physician stated that the air inoculation method did not provide universal precautions as a method to administer vaccinations as it represented a shared needle between the Veteran and other military personnel.  Dr. J.J.G. also stated that he reviewed the Veteran's service treatment records, and post-service treatment records reviewed by VA in reaching the conclusion that the Veteran's hepatitis C is more likely than not related to the air inoculations that he received while in service.  

Here, there is evidence for and against the claim.  The September 2015 VA and private medical opinions both concluded that there were no other common risk factors for hepatitis C present in this case.  The VA medical opinion found that it was less likely than not that the Veteran's hepatitis C was caused by or related to his military service, while the private opinion found that his hepatitis C is more likely than not related to his military service.  Both opinions were based on review of the record and contained accurate facts and were supported by detailed analysis.  The evidence of a medical nexus to service is at least in equipoise in this case.  Accordingly, reasonable doubt is resolved in the Veteran's favor, and service connection for hepatitis C is granted.


ORDER

Service connection for hepatitis C is granted.




____________________________________________
Nathaniel J. Doan
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs