Citation Nr: 18126987 Decision Date: 08/16/18 Archive Date: 08/16/18 DOCKET NO. 14-37 926 DATE: August 16, 2018 ORDER Entitlement to service connection for Hepatitis C, to include as secondary to in-service jaw surgery is granted. FINDING OF FACT The evidence of record shows that the Veteran’s hepatitis C disability was incurred in or as a result of active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for Hepatitis C, to include as secondary to in-service jaw surgery have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1975 to January 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In February 2018, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge via videoconference. A transcript is included in the claims file. Entitlement to service connection for Hepatitis C, to include as secondary to in-service jaw surgery. The Veteran contends his Hepatitis C is the result of a jaw surgery in service. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also 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). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In rendering a decision on appeal, the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran’s disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. at 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. See Barr, 21 Vet. App. at 303. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. See Jandreau, 492 F.3d 1372, 1377. 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. VA has recognized risk factors for hepatitis C, include intravenous (IV) drug use, blood transfusions before 1992, hemodialysis, intranasal cocaine, high-risk sexual activity, accidental exposure while a health care worker and various kinds of percutaneous exposure, such as tattoos, body piercing, acupuncture with non-sterile needles, shared toothbrushes or razor blades. See Veterans Benefits Administration (VBA) letter 211B (98-110), November 30, 1998. A VA Fast Letter, issued in June 2004 (VBA Fast Letter 04-13, June 29, 2004), identified key points that included the fact that hepatitis C is spread primarily by contact with blood and blood products, with the highest prevalence of hepatitis C infection among those with repeated, direct percutaneous (through the skin) exposure to blood (i.e., intravenous drug users, recipients of blood transfusions before screening of the blood supply began in 1992, and hemophiliacs treated with clotting factor before 1987). In addition, VBA Fast Letter 04-13 states: While there is at least one case report of hepatitis B being transmitted by an air gun injection, thus far, there have been no case reports of hepatitis C being transmitted by an air gun transmission. The source of infection is unknown in about 10 percent of acute hepatitis C cases and in 30 percent of chronic hepatitis C cases. These infections may have come from blood-contaminated cuts or wounds, contaminated medical equipment or multi-dose vials of medications. [...] The large majority of hepatitis C infections can be accounted for by known modes of transmission, primarily transfusion of blood products before 1992, and injection drug use. Despite the lack of any scientific evidence to document transmission of hepatitis C with air gun injectors, it is biologically plausible[…] VBA Fast Letter 04-13 (June 29, 2004). Service treatment records note the Veteran fractured his left mandible in service and underwent surgery to repair his jaw in December 1976. The Veteran was diagnosed with hepatitis C in 1993. A January 2014 VA treatment record listed the Veteran’s risk factors for hepatitis C as his active duty, airgun vaccinations, razor sharing, tattoos, intravenous drug abuse (IVDA), and blood transfusion. In an August 2014 letter, the Veteran’s private physician opined that he believed the Veteran to have contracted his infection 30 to 40 years prior. He further noted the Veteran’s risk factors of contraction include vaccinations he may have received in the past, as well as his oral surgery in service. In May 2018, the Board sought opinion from an expert Veterans Health Administration (VHA) specialist with respect to the etiology of the Veteran’s Hepatitis C. The VHA hepatologist indicated that it is plausible that the Veteran’s Hepatitis C is the result of his active service. The hepatologist reasoned that one can assume the Veteran developed cirrhosis by 2014, as his provider told him he was likely infected 30-40 years prior. That timing would fit between 1974-1984 fitting with the time frame of the Veteran’s active military duty and jaw surgery. The hepatologist also noted that prior, to 1992 blood products were not screened for hepatitis C virus, and that air gun injectors have been described as a potential source of viral transmission as well. The evidence is at least in equipoise in showing a direct nexus between the Veteran’s jaw surgery in service and his hepatitis C. Resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for service connection for hepatitis C is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Duthely, Associate Counsel