Citation Nr: 18103174 Decision Date: 05/17/18 Archive Date: 05/17/18 DOCKET NO. 14-13 408 DATE: May 17, 2018 ORDER Service connection for hepatitis C is granted. 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 July 1965 to June 1969 and was awarded the National Defense Service Medal, Vietnam Service Medal, and Republic of Vietnam Campaign Medal. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In his April 2014 substantive appeal, the Veteran requested a Board hearing by videoconference in regard to the issue of entitlement to service connection for hepatitis C. In January 2015, the RO received correspondence from the Veteran and his representative seeking to withdraw the Board hearing request due to health reasons. See 38 C.F.R. § 20.702(e) (2017) (withdrawal of hearing request). The January 2015 hearing was canceled. In September 2015, the Veteran requested a videoconference hearing. Given the Board’s grant herein of the above issue, the hearing request is moot. The Board notes that in a February 2017 statement, the Veteran’s representative raised a claim of entitlement to service connection for coronary artery disease pursuant to Nehmer and 38 C.F.R. § 3.157. To date, this claim has not been adjudicated by the Agency of Original Jurisdiction (AOJ). The Veteran and his representative are advised that the February 2017 statement does not meet the standards of a complete claim under 38 C.F.R. § 3.150(a). The AOJ should notify the Veteran as to the procedures required under 38 C.F.R. § 3.155 for filing a claim for VA benefits. 1. Entitlement to service connection for Hepatitis C. Service connection may be granted for disability arising from disease or injury 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 all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). 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. 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 contends that service connection for hepatitis C is warranted as a result of air gun immunizations that were not sterilized between recruits. As stated in the February 2013 rating decision, VA concedes that the Veteran received injections via air gun in service based on his period of service. As an initial matter, the Veteran has current diagnoses of hepatitis C and associated cirrhosis and hepatocellular carcinoma. Multiple VA treatment records and medical examinations and opinions also reflect that the Veteran was diagnosed with hepatitis C between 2001 and 2002. Although he admitted to a limited history of alcohol use, he reported that he had not had an alcoholic drink in more than 28 years and denied any history of other significant risk factors such as tattoos, piercings, blood transfusions, intravenous or intranasal drug use, and risky sexual relationships. The Veteran 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. The Veteran was afforded a VA examination in connection with this claim in February 2013. The examiner indicated that the Veteran was first diagnosed with hepatitis C in 2001 and determined that the Veteran’s only known risk factor is accidental exposure to blood by health care workers (to include combat medic and corpsman). The examiner opined that the Veteran’s hepatitis C was less likely than not incurred in or caused by air gun injections in service. The examiner explained that despite air gun injections in service being conceded and no other risk factors being noted in the service treatment records, the Veteran was molested as a child, had multiple sexual encounters, and has been married three times since service. The examiner further reasoned that heterosexual or homosexual activity with multiple sexual partners is a clearly identified mode of transmission but the exact risk is unknown. The examiner also noted that there are other known risks such as manicures, straight razors in barber shops, and shared toothbrushes and that in more than 40 percent of cases, individuals cannot identify a source for their infection but that they are due to known risk factors. However, in a February 2017 statement, the Veteran’s representative rebutted that the record does not suggest that the “molestation” in childhood was characterized by oral or anal sodomy or with or without ejaculation or barrier protections. The representative also argued and provided supporting documentation that the Center for Disease Control considers the risk of transmission of hepatitis C through sexual contact was low. Furthermore, a June 2013 treatment report documents that the Veteran was seen for a consultation at a hepatology clinic at the Indiana University Medical Center. The private hepatologist opined that the Veteran’s hepatitis C was likely acquired through his exposure during the Vietnam War but did not provide a rationale. The Veteran also underwent an exposure assessment evaluation in July 2013 at the War Related Illness and Injury Study Center with VA. The clinician indicated that at the evaluation the Veteran was told that “it is at least as likely as not that the Veteran’s military service in Vietnam is contributory at least in part to his hepatitis C.” In an addendum opinion rendered later that month, the clinician indicated that the additional information regarding Veterans during the Vietnam War and jet air gun immunizations further supported that it was at least as likely as not that the Veteran’s hepatitis C is related to the in-service inoculations. 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 the Veteran’s hepatitis C is related to service, including as due to exposure through the use of a jet injector gun for inoculation. The Board finds that the February 2013 VA opinion is inadequate as it focuses only on the Veteran’s multiple marriages and 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 opinions of record are 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 and 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). S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Bilstein, Associate Counsel