Citation Nr: 1760765 Decision Date: 12/28/17 Archive Date: 01/02/18 DOCKET NO. 16-34 704 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD J. Ragheb, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2014). The Veteran served on active duty from August 1962 to August 1964. This appeal is before the Board of Veterans' Appeals (Board) from a May 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In September 2017, the Veteran testified at a Board hearing via videoconference before the undersigned Veterans Law Judge. A transcript of the hearing is of record. FINDING OF FACT The current hepatitis C disability is etiologically related to jet injector inoculations received by the Veteran in service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for hepatitis C have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Because the Veteran's claim for service connection for hepatitis C is being granted in full, VA's duties to notify and assist are deemed fully satisfied and there is no prejudice to the Veteran in proceeding to decide the issue on appeal. See 38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.156, 3.159. Service Connection for Hepatitis C The Veteran asserts that he was infected with hepatitis C in service due to use of infected inoculation equipment such as air gun injectors. The Veteran provided a buddy statement from M.H. who reported that he witnessed the Veteran standing in line for air gun injections during service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). VA's adjudication procedure manual states that hepatitis A was previously called infectious hepatitis; hepatitis B was previously called serum hepatitis; and hepatitis C was previously called non-A non-B hepatitis. Hepatitis C is clinically asymptomatic as an acute disease; chronic disease develops in 80 percent of cases following the acute phase; and, diagnosis is generally made incidentally many years later. M21-1, Part III, Subpart iv. 4.1.2a. Risk factors for development of hepatitis C include transfusion of blood or blood product before 1992, organ transplant before 1992, or hemodialysis; tattoos, body piercing, and acupuncture with non-sterile needles; intravenous drug use; high-risk sexual activity; intranasal cocaine use; accidental exposure to blood by percutaneous exposure or on mucous membranes; sharing of toothbrushes or shaving razors; and immunization with a jet air gun injector. However, it is clarified that, despite the lack of any scientific evidence to document transmission of hepatitis C with air gun injectors, it is biologically possible. M21-1, Part III, Subpart iv. 4.1.2e. The Veteran submitted am August 2013 statement by Dr. R.F. who opined that it is felt likely that the Veteran contracted hepatitis C while in service either through buzz haircuts with electric razors or through jet vaccinations. Dr. R.F. reasoned that the Veteran had been married to the same woman for 40 years with no transgressions, and that the Veteran has no tattoos, has never received a blood transfusion, and has no history of intravenous drug use. The Veteran also submitted an August 2016 statement by C.P., a physician assistant, who opined that it is at least as likely as not that the Veteran was infected with hepatitis C due to vaccinations as they were performed in the 1960s as any other source. C.P. reasoned that the Veteran was originally diagnosed with hepatitis non-A, non-B, and was subsequently diagnosed with chronic viral hepatitis C. C.P. explained that the Veteran's report of symptoms includes only unprotected vaccinations in 1962 at Fort Riley, Kansas, and that the Veteran denied all other criteria for hepatitis C infection, to include intravenous drug abuse, tattoos, high sexual behaviors, dialysis, transfusions, and organ transplantation. The Veteran underwent a VA examination in May 2016. The VA examiner opined that the Veteran's chronic hepatitis C was less likely than not caused by or the result of jet injector vaccinations/inoculations and/or haircuts in service. The VA examiner outlined hepatitis C risk factors and reasoned that there is a lack of sufficient medical evidence to document transmission of hepatitis C with air gun injectors and/or military haircuts. After a review of all the lay and medical evidence of record, the Board finds that the evidence is in relative equipoise as to whether the current hepatitis C disability is related to service. In doing so, the Board accords higher probative value to the August 2013 and August 2016 positive nexus opinion by Dr. R.F. and C.P. relating hepatitis C to jet injections and razor haircuts in service. While the May 2016 VA examiner rendered a negative nexus opinion as to the relationship between the current hepatitis C and jet injector vaccinations and/or razor haircuts in service reasoning that there is a lack of sufficient medical evidence to document transmission of hepatitis C, VA has recognized that despite the lack of any scientific evidence to document transmission of hepatitis C with air gun injectors, it is biologically possible. See M21-1, Part III, Subpart iv. 4.1.2e. Accordingly, the Board finds that the May 2016 VA opinion is of lesser probative value because there are no other risk factors present in the Veteran's history to account for the Hepatitis C infection. Based on the foregoing, and resolving all reasonable doubt in the Veteran's favor, the Board finds that the current hepatitis C disability is related to service, and, therefore, service connection for hepatitis C is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for hepatitis C is granted. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs