Citation Nr: 18130161 Decision Date: 08/29/18 Archive Date: 08/28/18 DOCKET NO. 14-34 880A DATE: August 29, 2018 ORDER Service connection for hepatitis C is granted. REMANDED The issue of entitlement to service connection for bilateral hearing loss is remanded. FINDING OF FACT The Veteran's hepatitis C had its clinical onset during his period of active service. CONCLUSION OF LAW The criteria for service connection for hepatitis C are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1967 to January 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ) in June 2018. A transcript of the hearing has been associated with the claims file. 1. Entitlement to service connection for hepatitis C The Veteran seeks service connection for hepatitis C. Specifically, he contends that he has hepatitis C as a result of “air gun” inoculations, intravenous drug usage, or as a result of sharing shaving razor blades. Generally, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a) (2017). 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 current disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical evidence. VA must also consider all favorable lay evidence of record. See 38 U.S.C. § 5107 (b); see also Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (a Veteran is competent to report on that of which he or she has actually observed and is within the realm of his or her personal knowledge). Turning to the evidence of record, the Veteran’s post-service medical records confirm a diagnosis of hepatitis C. More specifically, a July 2013 VA examiner indicated that the Veteran had a diagnosis of hepatitis C. Post-service private medical records also confirm a diagnosis of hepatitis C and hepatitis C-related complications. The Veteran’s service treatment records (STRs) are negative for any diagnosis or treatment of hepatitis C. However, the Veteran competently and credibly testified during the June 2018 Board hearing regarding shared razors, intravenous drug usage, and air gun inoculations during service. The Board notes that VA has recognized the following activities as known risk factors for hepatitis C: intravenous (IV) drug use, blood transfusions before 1992, hemodialysis, intranasal cocaine use, 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, and shared toothbrushes or razor blades. See Veterans Benefits Administration (VBA) Letter 211B (98-110) November 30, 1998; see also VBA Fast Letter 04-13 (June 29, 2004) (acknowledging that air gun injectors, which were commonly used to administer vaccinations to Vietnam-era service members, have been recognized as a "biologically plausible" means of transmission of hepatitis C). In this regard, the evidence of record includes a February 2012 opinion from Dr. Denise Harnois (Dr. Harnois). Dr. Harnois noted that the Veteran had undergone a liver transplant for complications of cirrhosis related to a hepatitis C infection, and opined that given the clinical course of his hepatitis C infection, the Veteran likely contracted hepatitis C in the 1960’s or 1970’s, to include during his period of military service. The Veteran was afforded a VA examination in July 2013. Following examination of the Veteran, the examiner opined that the claimed condition was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that the Veteran’s hepatitis C was related to the risk factors he was exposed to while in the military, namely sharing razors and his intravenous drug abuse. The evidence of record also includes a July 2018 opinion from Dr. Diego Torres, II (Dr. Torres). Dr. Torres opined that it was most likely that the Veteran contracted hepatitis C while in the military. Dr. Torres reasoned that there was no sterility in the use of public razors. During the time the Veteran was in the military he shared razors with other personnel due to lack of supply; he can recall picking up blood soiled razors and simply rinsing them under the sink before using them to shave himself. Dr. Torres further opined that the experts at the Mayo Clinic estimated that the Veteran contracted hepatitis C in the 1960s or 1970s. In light of the foregoing, to include the Veteran’s competent and credible testimony regarding possible risk factors for contracting hepatitis C in service, and the positive nexus opinions of record, the Board finds that the Veteran's hepatitis C had its onset during his period of active service. Accordingly, service connection for hepatitis C is granted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran seeks service connection for bilateral hearing loss. Specifically, he contends that he has bilateral hearing loss as a result of acoustic trauma related to basic training; constant noise on the gun range, throwing grenades, and firing weapons. In this regard, the evidence of record includes an August 2013 VA examination report in which the examiner opined that it was less likely as not that the Veteran's hearing loss was caused by or a result of an event in military service. The examiner reasoned that the Veteran’s military audiograms document normal hearing at entrance and at separation. The Board finds the August 2013 VA examination inadequate as the examiner improperly relied on the absence of an in-service hearing disability. The Board notes that the absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). In light of the foregoing, the Board finds that an additional VA examiner opinion must be provided on remand. See Bar v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.) The matter is REMANDED for the following action: 1. Request that the Veteran provide or authorize VA to obtain records of his relevant treatment that have not yet been associated with the claims file, and associate with the claims file any outstanding VA treatment records. 2. Return the claims file to the audiologist who conducted the Veteran's August 2013 audiological examination, if available. If that audiologist is not available, send the claims file to another audiologist. The claims file and this remand should be made available to the examiner and review of the file should be noted in the requested report. After reviewing the claims file the audiologist should respond to the following: (a.) Is it at least as likely as not (50 percent probability or greater) that any current hearing loss disability had its onset in, or is related to any in-service disease, event, or injury, including noise exposure, including on a delayed onset theory of causation. (b.) Is it at least as likely as not that any current sensorineural hearing loss manifested to a compensable degree within one year of service discharge. The audiologist should review the August 2013 VA examination report, July 2013 audiogram, June 2018 audiogram, and the June 2018 hearing testimony. The audiologist should specifically address the Veteran's contention that he was exposed to acoustic trauma in relation to his military basic training (firing weapons and launching grenades). The audiologist should also address the Veteran’s contention that he first noticed hearing loss during service and the lay statements from his family and friends related to his hearing loss. The audiologist is advised the lack of a diagnosis of hearing loss in service is not, by itself, a sufficient reason to find there is no nexus to service. The salient question is whether any incident of service, including noise exposure, caused a current hearing loss disability even though it may have been initially diagnosed years after the Veteran's discharge from service (delayed on-set hearing loss). All findings and conclusions should be supported with a complete rationale and set forth in a legible report, which should reflect the examiner's consideration and analysis of both the medical and lay evidence of record. If it is not possible to provide an opinion without resort to speculation, the reason that is so should be explained, indicating whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide an opinion is based on the limits of medical knowledge. S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Smith-Jennings, Associate Counsel