Citation Nr: 1808880 Decision Date: 02/12/18 Archive Date: 02/23/18 DOCKET NO. 14-00 617 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from August 1963 to August 1966, including service in the Republic of Vietnam from May 1965 to February 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision by the Columbia, South Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). In June 2014, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. The case was remanded for additional development in February 2014 and July 2014. The Board notes that the issue of entitlement to compensation as a result of VA treatment under the provisions of 38 U.S.C. § 1151 was previously denied in a final August 2002 rating decision. In its July 2014 remand the Board found the issue on appeal was more appropriately addressed as an original service connection claim. The service connection issue has been adequately developed for appellate review. FINDING OF FACT The evidence of record is at least in equipoise as to whether the Veteran's diagnosed hepatitis C virus was contracted during, or the result of, active service. CONCLUSION OF LAW The criteria for service connection for hepatitis C have been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Neither the Veteran nor his representative has raised any issue with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). There was substantial compliance with the prior remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.). Service Connection Claim Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 (2012). Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). VA's duty to assist the Veteran includes obtaining a thorough and contemporaneous examination where necessary to reach a decision on a claim. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). The United States Court of Appeals for Veterans Claims has held that an examiner's statement that an opinion could not be offered without resort to mere speculation may be accepted as adequate only if it is determined that it is not based on the absence of procurable information or on a particular examiner's shortcomings or general aversion to offering an opinion on issues not directly observed. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). It has also held that "the duty to gather evidence sufficient to render a decision is not a license to continue gathering evidence in the hopes of finding evidence against the claim." Douglas v. Shinseki, 23 Vet. App 19, 26 (2009). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102 (2017). The Veteran contends that he has hepatitis C that was contracted during active service. In pertinent part, in statements and testimony in support of his claim, he states that he contracted the virus as a result of injection gun vaccinations during training and then later prior to his deployment in the Republic of Vietnam. Although he admitted to a limited history of unprotected sex in the distant past, he denied any history of other significant risk factors such as tattoos, piercings, blood transfusions, intravenous or intranasal drug use, alcohol use, and risky sexual relationships. He also reported having lived in Mexico for approximately two years while attending medical school. Also of record is a February 2007 statement made in support of his claim for Social Security Administration benefits wherein he reported his belief that he had acquired hepatitis C in 1968 while working in Alaska as a fire fighter with the Bureau of Land Management. Service treatment records are negative for complaint, diagnosis, or treatment associated with hepatitis C. A January 1966 report, however, noted treatment for a human bite. That said, the Board also recognizes that hepatitis C was not discover until 1989. See https://www.cdc.gov/knowmorehepatitis/timeline.htm. VA treatment records dated in May 2000 noted the Veteran was new to the system and that his medical history included hepatitis C. No comments as to etiology were provided. An October 2002 report noted he stated he had been provided a diagnosis of hepatitis C in 1999, but that his previous medical records were unavailable at that time. He denied intravenous drug use, alcohol use, tattoos, or blood transfusions, but admitted to having had unprotected sex in the distant past. No reference was made to his active service or receiving air gun vaccinations therein. A December 2009 VA medical opinion found it was extremely unlikely that the Veteran had acquired hepatitis C from a phlebotomy procedure in August 1998. It was noted that the needles and syringes were disposable and never used more than once. It was further noted that his liver function tests were already abnormal on the date of that procedure. The examiner stated that hepatitis C infection was possible through risky behavior/lifestyle, such as homosexual activity, multiple partner heterosexual activity, intravenous and inhaled drugs, ethanol abuse, tattooing, and incarceration. Hepatic C was also noted to be common in third world countries and that the Veteran had served in Vietnam and had lived in Mexico as a medical student in the mid-70's. An August 2014 VA examination report provided a diagnosis of hepatitis C. It was noted the Veteran believed he got hepatitis C from injections during active service, that he was provided a diagnosis of hepatitis C in approximately 1999, and that he admitted having unprotected sex with at least two women in the past without any present contact with them or knowledge about their hepatitis C status. The examiner also noted that the Veteran's only real risk factor for hepatitis C was unprotected sex with at least two women, but that he may have gotten it from an injection during active service. She stated that there was no way for her to give an opinion with any level of certainty as to where he acquired hepatitis C without resorting to mere speculation. Based upon a comprehensive review of the record, the Board finds that the evidence as to whether the Veteran's hepatitis C virus was contracted during active service is in equipoise. There is no indication that the August 2014 VA examiners inability to provide an etiology opinion without resort to mere speculation was based on the absence of procurable information or on any particular shortcomings or general aversion to offering an opinion on issues not directly observed. 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. The Board interprets the examiner's statement as there being an equal chance that the infection arose during service, i.e., as result of the injection received in service, when compared to the identified risk factor of having unprotected sexual relations. Therefore, with all reasonable doubt applied in the Veteran's favor, entitlement to service connection for hepatitis C must be granted. ORDER Entitlement to service connection for hepatitis C is granted. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs