Citation Nr: 18119196 Decision Date: 07/18/18 Archive Date: 07/18/18 DOCKET NO. 17-18 044 DATE: July 18, 2018 ORDER Service connection for hepatitis C is granted. FINDING OF FACT Hepatitis C is proximately due to the Veteran’s service-connected other specified depressive disorder, other specified anxiety disorder with unspecified other (or unknown) substance-related disorder. CONCLUSION OF LAW The criteria for service connection for hepatitis C are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from July 1970 to September 1970, and from June 1971 to May 1974. The Veteran died in December 2017. The appellant, who is the Veteran’s surviving spouse, has been substituted as the appellant for purposes of processing the Veteran’s claim to completion. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in May 2015 by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2018, the appellant and her son testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. At such time, the appellant submitted additional evidence for consideration in her appeal. 38 U.S.C. § 7105(e) (as amended). Additionally, the appellant waived Agency of Original Jurisdiction (AOJ) consideration of the evidence associated with the record since the issuance of the February 2017 statement of case. 38 C.F.R. § 20.1304(c). Furthermore, the undersigned held the record open for 30 days so that the appellant could procure and submit additional evidence in support of the claim. Such evidence was received in May 2018; however, such was duplicative of evidence already on file. Therefore, the Board may properly consider the entirety of the evidence of record. Entitlement to service connection for hepatitis C, to include a secondary to the Veteran’s service-connected psychiatric disability. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). Additionally, there are recognized risk factors for contracting hepatitis C that should be taken into consideration when developing and adjudicating a claim of service connection. The medically recognized risk factors are: transfusion of blood or blood products before 1992; organ transplant before 1992; hemodialysis; tattoos; body piercing; intravenous drug use (due to shared instruments); high-risk sexual activity (risk is relatively low); intranasal cocaine use (due to shared instruments); accidental exposure to blood products in health care workers or combat medic or corpsman by percutaneous (through the skin) exposure or on mucous membrane; and other direct percutaneous exposure to blood such as by acupuncture with non-sterile needles or by the sharing of toothbrushes or shaving razors. Hepatitis C arising from air gun immunizations has not been documented; however, it is biologically possible. See VBA Manual M21-1, III.iv.4.I.2.e. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The appellant seeks service connection for the Veteran’s diagnosed hepatitis C. Specifically, she asserts that the Veteran’s hepatitis C is the result of in-service inoculations with an unsterilized air gun or, in the alternative, such is related to his service-connected psychiatric disability. As will be discussed below, the evidence of record reflects that the Veteran’s hepatitis C is related to his substance abuse, which, in turn, has been related to his service-connected psychiatric disability. Accordingly, the Board herein grants service connection for hepatitic C on the basis that such disease is proximately due to the Veteran’s service-connected psychiatric disability. Therefore, it is not necessary to address any alternative theory of entitlement. See, e.g., Robinson v. Shinseki, 557 F.3d 1355, 1361 (2008). In this regard, the Veteran was afforded a VA examination in May 2015. At such time, the examiner noted that he had multiple risk facts for hepatitis C, to include IV drug use and high risk sexual activity. In a February 2017 opinion, she opined that it was at least as likely as not that the Veteran was exposed to the hepatitis C virus via his IV drug use and multiple sexual partners with unprotected sex. In this regard, she explained that the Veteran had several lifestyle risk factors that put him at a higher likelihood for being infected with hepatitis C. Moreover, it was well documented that he was an IV drug abuser and had multiple sex partners with unprotected sex/history of sexually transmitted diseases (STDs). In August 2017, a VA examiner diagnosed the Veteran with other specified depressive disorder, other specified anxiety disorder, and unspecified other (or unknown) substance-related disorder, described as polysubstance, including alcohol, acid, heroin, cannabis, and tobacco secondary to depression and anxiety. The examiner concluded that it was at least as likely as not that the Veteran met the criteria for diagnoses of depression and anxiety that was caused by or incurred during his service in the Army from 1971 to 1974, which led to the abuse of substances. Further, in September 2017, he found that it was at least as likely as not that the Veteran’s in-service substance abuse was a form of self-medication, and represented the first manifestations of his current depression and anxiety. Consequently, service connection for other specified depressive disorder, other specified anxiety disorder, and unspecified other (or unknown) substance-related disorder was established in an October 2017 rating decision. Additionally, in April 2018, a private physician, Dr. R.T., opined that it was more likely than not that the Veteran’s hepatitis C was caused by his self-medicating, secondary IV drug use. As rationale, he explained that drug abuse involving syringe injections were one of the main ways hepatitis C was transmitted from person to person, and injection drug abuse was the main risk factor associated with hepatitis C transmission. If someone used syringes to inject drugs, such as lysergic acid diethylamide (LSD), cocaine, or heroin into their body, it would only take one incident of sharing a syringe with an infected person to contract the virus. This means someone who has only experimented with injection drugs on a single occasion could be exposed to the virus. Thus, he concluded that such easy transmission route makes hepatitis C contraction a major risk factor for injection drug use. Therefore, based on the foregoing evidence, the Board finds that the Veteran’s hepatitis C is proximately due to his service-connected other specified depressive disorder, other specified anxiety disorder with unspecified other (or unknown) substance-related disorder. Therefore, service connection for hepatitis C is warranted. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Brennae L. Brooks, Associate Counsel