Citation Nr: 18143485 Decision Date: 10/23/18 Archive Date: 10/19/18 DOCKET NO. 15-15 274 DATE: October 23, 2018 ORDER 1. Entitlement to service connection for hepatitis C is granted. REMANDED 2. Entitlement to service connection for psoriasis of the liver, to include as secondary to hepatitis C is remanded. 3. Entitlement to service connection for diabetes mellitus, to include as secondary to hepatitis C is remanded. 4. Entitlement to service connection for a deviated nasal septum is remanded. 5. Entitlement to service connection for sleep apnea to include as secondary to a deviated septum claim is remanded. FINDING OF FACT The Veteran’s hepatitis C was incurred in service. CONCLUSION OF LAW The criteria for service connection for hepatitis C have been met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1976 to February 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from June 2013 and October 2013 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In June 2018, he testified at a videoconference hearing. The issue of entitlement to service connection for colon cancer, to include as secondary to hepatitis C has been raised by the record and will be referred to the RO. (See Hearing Transcript p. 9). The Board recognizes that the Veteran suffers from colon cancer and other serious disabilities that cause severe impairment of his health. Therefore, the Judge finds that this appeal should be and has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900 (c); 38 U.S.C. § 7107 (a)(2). 1. Entitlement to service connection for hepatitis C. Service connection means that a disability resulting from disease or injury was incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge when the evidence shows that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a). 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 and 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. 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; see also VBA Fast Letter 211 (04-13) (June 29, 2004). The Veteran contends that service connection for hepatitis C is warranted because of air gun immunizations that were not sterilized between recruits. The VA concedes that he received injections via air gun in service based on his period of service. He also contends that it could be related to medical treatment in service. As an initial matter, the Veteran has a current diagnosis of hepatitis C satisfying the first element and he did have potential risk factors for hepatitis C during service in addition to air gun inoculations. Specifically, his service treatment records (STRs) reflect that he fell off a motorcycle in June 1977. He was in a motor vehicle accident in November 1978 and he had his jaw broken when attempting to break up a fight in February 1978. At issue is whether there is nexus between his in-service risk factors and current diagnosis. It is unclear from the claims file when he was first diagnosed with hepatitis C. The claims file is devoid of treatment records prior to December 2010. The treatment records in the claims file are not indicative of “risky behavior.” He did not endorse a history of risky sexual behavior or unprotected sex. The medical evidence of record also does not reflect a history of intravenous drug use. In a May 2013 private opinion, a private physician stated that his current hepatitis C was related to his in-service risk factors. His rationale, in part, was that it was still common to use jet injectors for routine immunizations during his period of service from 1976 to 1979. “Jet injectors have been identified as a risk factor for transmission of both hepatitis B and hepatitis C based upon epidemiologic data. Based upon this report, I feel it is at least likely that he contracted hepatitis C from this jet injector.” An October 2013 VA examination concluded that it was less likely than not that hepatitis C was incurred in service. His rationale was that it was less likely than not incurred in or caused by air injection inoculations during military service because a large majority of hepatitis C infections could be accounted for by other modes of transmission, primarily transfusion of blood products before 1992, intravenous drug use, and sexual transmission. He stated that transmission of hepatitis C with air gun injectors, was possible in theory, but there is not enough evidence to confirm it as a risk factor. The Board finds the VA medical examiner’s opinion less probative to the May 2013 private opinion because the examiner’s rationale is flawed in that the VA recognizes air gun injectors as a possible risk factor and his service period coincides with such a risk factor. Further, the examiner recognizes that the claims file does not contain extensive medical records nor does it reveal that the Veteran engaged in other risky behavior that would make one mode of transmission more plausible than the other. After a review of all the evidence, both lay and medical, and resolving reasonable doubt in favor of the Veteran, the Board finds that the evidence is at least in equipoise as to whether his hepatitis C is related to service, including as due to exposure using a jet injector gun for inoculation. The Board finds that the Veteran’s lay statements are probative evidence in the current appeal. He is competent to report exposure to blood and other bodily fluids during his active service. He is also competent to report as to his specific drug use, sexual activity, or medical history such that he may deny post-service hepatitis C risk factors; and there is no indication that he is not credible in this regard. See, too, Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that a Veteran is competent to report what occurred during service because he is competent to testify as to factual matters of which he has first-hand knowledge); Jefferson v. Principi, 271 F.3d 1072, 1076 (Fed. Cir. 2001) (recognizing the Board’s inherent fact-finding ability); Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (reflecting that credibility determinations are within the purview of the Board). The Board finds that the VA opinion is inadequate as it focuses only on generalizations of other risk factors that do not apply to the Veteran; the opinion did not adequately consider the in-service air gun injector as a risk factor. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (“A mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to the doctor’s opinion.”). The positive May 2013 private opinion of record is based on information provided by the Veteran. The Veteran’s statements as to having received injection gun vaccinations in service and having no greater other risk factors for the disease are found to be credible. A diagnosis of hepatitis C has been established. Resolving doubt in the Veteran’s favor, the Board finds that the Veteran’s hepatitis C was caused by exposure to jet air gun inoculations in service. Therefore, a nexus between the claimed in-service disease or injury and the present disability is met. The claim of entitlement to service connection for hepatitis C is granted. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.102; see generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). REASONS FOR REMAND 1. Entitlement to service connection for psoriasis of the liver, to include as secondary to hepatitis C is remanded. 2. Entitlement to service connection for diabetes mellitus, to include as secondary to hepatitis C is remanded. 3. Entitlement to service connection for a deviated nasal septum is remanded. 4. Entitlement to service connection for sleep apnea to include as secondary to a deviated septum claim is remanded. Considering the grant of service connection for hepatitis C, the Veteran should be afforded a VA examination for psoriasis of the liver and diabetes mellitus to determine if these disabilities are related to the service-connected hepatitis C. The etiology of these disabilities is unclear and the issue requires medical comment. On remand, the AOJ should afford the Veteran a VA examination to determine the etiology. Regarding his deviated nasal septum and sleep apnea, the Veteran submitted medical evidence in March 2012 from Dr. G. G. stating that his nasal fracture was from motor vehicle accident. His STRs reflect that he was in an automobile accident in November 1978. The Veteran has met the threshold for a VA examination. On remand, the RO should obtain a VA examination to determine etiology of these disabilities. Further, the RO must attempt to obtain all VA treatment records and any records from St. John Hospital in Tulsa, Oklahoma. The RO must notify the Veteran that the VA was unable to obtain any medical records from the Oklahoma City Indian Clinic. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Obtain the information necessary from the Veteran to obtain any private treatment records not already associated with the claims file (i.e., St. John Hospital in Tulsa, Oklahoma). Notify the Veteran that the VA was unable to obtain any medical records from the Oklahoma City Indian Clinic 3. Then, afford the Veteran a VA examination with an appropriate examiner to determine the etiology of his psoriasis of the liver and diabetes mellitus. Complete examinations, including any required diagnostic tests, should be completed. (a) The examiner should opine as to whether it is at least as likely as not (at least a 50 percent probability) that the Veteran’s cirrhosis of the liver was incurred in service, or are otherwise related to service. (b) The examiner should opine as to whether it is at least as likely as not that the Veteran’s cirrhosis of the liver and diabetes mellitus are proximately due to, or the result of, his service-connected hepatitis C. The examiner should then, as a clear and separate response, indicate whether it is at least as likely as not that his cirrhosis of the liver and diabetes mellitus have been aggravated (made permanently worse beyond the natural progression of the disease) by his service-connected hepatitis C. The claims file, to include a copy of this remand, should be made available to the examiner for review in conjunction with the examination, and the examiner should note such review. A complete rationale should be provided for all opinions given. 4. Then, afford the Veteran a VA examination with an appropriate examiner to determine the etiology of his deviated nasal septum and sleep apnea. Complete examinations, including any required diagnostic tests, should be completed. (a) The examiner should opine as to whether it is at least as likely as not (at least a 50 percent probability) that the Veteran’s deviated nasal septum was incurred in service, or are otherwise related to service, specifically his motor vehicle accident during his active service. (b) The examiner should opine as to whether it is at least as likely as not that his sleep apnea was incurred in service, or are otherwise related to service (to include proximately due to, or the result of, his deviated nasal septum). (Continued on the next page)   The claims file, to include a copy of this remand, should be made available to the examiner for review in conjunction with the examination, and the examiner should note such review. A complete rationale should be provided for all opinions given. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Finn