Citation Nr: 19190276 Decision Date: 11/29/19 Archive Date: 11/29/19 DOCKET NO. 14-32 288A DATE: November 29, 2019 ORDER The July 11, 2018 Board decision denying service connection for Hepatitis C is vacated. Service connection for Hepatitis C is granted. FINDINGS OF FACT 1. On December 27, 2017, the Board awarded the Veteran 90 days in which to submit additional evidence and/or argument in support of his appeal. 2. On March 22, 2018, within the 90 days granted by the Board, the Veteran’s attorney submitted additional argument and evidence. 3. The March 22, 2018 argument and evidence were not associated with the claims file until after the Board decided the appeal. A subsequent delay in dispatch resulted in the issuance of the decision on July 11, 2018. 4. Hepatitis C is related to service. CONCLUSIONS OF LAW 1. The criteria for vacatur of the Board’s July 11, 2018 decision in its entirety have been met. 38 U.S.C. § 7104(a) (2012); 38 C.F.R. § §§ 20.904, 20.1304 (2018). 2. The criteria for service connection for Hepatitis C have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1962 to May 1965 in the United States Army. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2018, the Board denied the appeal. That decision is being vacated for the reasons stated below. The claim is again adjudicated in the decision that follows. Vacated Decision The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board’s own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C. § 7104(a) (2012); 38 C.F.R. § § 20.904 (2018). On October 19, 2017, the Veteran was advised that his appeal had been placed on the Board’s docket, and that he had 90 days from the date of the letter or until the Board issued a decision (whichever came first), in which to submit additional argument or evidence. On October 24, 2017, the Veteran’s attorney filed a motion for an extension of time for the submission of additional evidence. On December 27, 2017, the Board awarded the Veteran 90 days from the date of the letter in which to submit additional evidence and/or argument in support of his appeal. On March 22, 2018, within the 90 days granted by the Board, the Veteran’s attorney submitted additional argument and evidence. This submission, however, was not immediately uploaded to the claims file. Unaware of this submission, the Board issued a decision, which was then not dispatched until July 11, 2018. 38 C.F.R. § 20.904 provides that an appellate decision may be vacated by the Board of Veterans' Appeals at any time upon request of the appellant or his or her representative, or on the Board's own motion, on the following grounds: (a) Denial of due process. Examples of circumstances in which denial of due process of law will be conceded are: (1) When the appellant was denied his or her right to representation through action or inaction by Department of Veterans Affairs or Board of Veterans' Appeals personnel. As the Veteran was denied his right to representation due to the fact that the March 22, 2018 argument and evidence was not properly uploaded to his claims file, the July 11, 2018 decision of the Board must be vacated in its entirety. A new decision will be entered as if the July 2018 decision had never been issued. Service Connection VA provides compensation for disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a “service connection.” 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to show a service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The Veteran has current Hepatitis C, documented on VA examination in August 2014. VA guidelines contain a list of medically recognized risk factors for the transmission of Hepatitis C, including: (a) transfusion of blood or blood product before 1992; (b) organ transplant before 1992; (c) hemodialysis; (d) tattoos; (e) body piercing; (f) intravenous drug use (with the use of shared instruments); (g) high-risk sexual activity; (h) intranasal cocaine use (also with the use of shared instruments); (i) accidental exposure to blood products as a healthcare worker, combat medic, or corpsman by percutaneous (through the skin) exposure or on mucous membrane; and (j) other direct percutaneous exposure to blood, such as by acupuncture with non-sterile needles, or the sharing of toothbrushes or shaving razors. The Veteran reports that he contracted Hepatitis C during service via air gun inoculation. He states he had to stand in a line with 40-50 other men to receive immunizations, and that many were bleeding from the site of injection. He states that his friend, who has since passed away, stood in line with him and also had Hepatitis C during his lifetime. Regarding immunization with a jet air gun injector, VA guidelines indicate that despite the lack of any scientific evidence to document transmission of the Hepatitis C virus with air gun injectors, it is biologically possible. A medical report linking hepatitis to air gun injectors must include a full discussion of all potential modes of transmission and a rationale as to why the examiner believes the air gun injector was the source for the hepatitis infection. On his May 1962 service entrance examination, neither Hepatitis C nor problems with the liver were noted. Tattoos and body piercings were not noted. Service treatment records (STRs) do not document complaints, diagnoses, or treatment relating to the Veteran’s liver or Hepatitis C. The Veteran received several immunizations during service, as shown by his Immunization Record. The Immunization Record does not reveal any adverse reactions to any immunization. In April 1965, he underwent elective surgery for a circumcision; a blood transfusion was not received during the procedure. No other risk factors were noted during service. On his May 1965 separation examination, Hepatitis C was not noted and no abnormalities were found involving the liver, including on laboratory findings. Tattoos and body piercings were not noted. The Veteran reported no pertinent complaints on the accompanying Report of Medical History. His DD Form 214 shows that his military occupational specialty was an automobile mechanic. There were no records showing complaints, a diagnosis, or treatment of Hepatitis C in close proximity to discharge from service. Private medical records indicate the condition was diagnosed in approximately 1981. In an August 2011 letter, Dr. M., the Veteran’s treating physician indicated that the Veteran underwent a series of vaccinations as well as a circumcision surgery during his active military service. He concluded, “the patient states that he has no other known risk factors for hepatitis C infection.” In an August 2014 VA medical opinion, the examiner reviewed the claims file and addressed the matters of both the in-service surgery and the air gun inoculations. He opined that the Veteran’s Hepatitis C was less likely than not caused by or a result of the surgery as it was performed in a stateside facility where standard sterilization procedures for the surgical instruments would have thoroughly decontaminated them from Hepatitis C or other pathogens. As such, and as the Veteran did not receive a blood transfusion in surgery, the risk of Hepatitis C from this operation was negligible. The examiner also opined that the Veteran’s Hepatitis C was less likely than not caused by or a result of air gun inoculations during service. He explained the mechanisms of a jet injector, stating that there is high-pressure injection of the liquid rather than via hypodermic needle. There have been relatively few incidents of disease transmission between users, despite widespread use of the jet injector by the military and large-scale vaccination campaigns. Nonetheless, because the jet injector does break the barrier of the skin, there is a potential for biological material to transfer from one user to the next. However, medical literature indicates an extremely low, 0.5-1.8 percent, transmission rate. The examiner noted that in 10 to 44 percent of Hepatitis C cases, the source of the infection is unknown. Further, medical literature supports that there are risk factors for the transmission of Hepatitis C that have not yet been identified. Based on all of this, the examiner concluded that the Veteran may have acquired Hepatitis C in an unknown manner. In March 2018, the Veteran submitted an February 2018 opinion of Dr. F. Dr. F. reviewed the claims filed and provided a summary of pertinent medical findings. He cited a study which found that during the time the Veteran served, military service members had a 6 times greater risk of contracting Hepatitis C than the general population. Moreover, the degree of the Veteran’s hepatic damage on testing and imaging in 2010 was consistent with an acquisition of the disease during military service. He discussed risk factors for contracting Hepatitis C, and the fact that they did not apply to the Veteran. He discussed medical studies addressing the retention of blood in the nozzle of air gun injectors, as well as studies addressing the fact that such blood can be reinjected by the guns, even after protective caps were added. Based on all of this, Dr. F. concluded that it was more likely than not that the Veteran acquired Hepatitis C in the military. In considering the evidence under the laws and regulations as set forth above, and resolving all reasonable doubt in his favor, the Board concludes that the Veteran is entitled to service connection for his Hepatitis C as directly related to service. At a minimum, the evidence is in equipoise. The report of Dr. F. report is adequate for adjudication; he examined the Veteran’s medical records and based his findings on a thorough discussion of relevant medical literature. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). By contrast, the August 2014 VA examination report is less persuasive to the extent the examiner found the Veteran may have acquired Hepatitis C in an unknown manner. Tirpak v. Derwinski, 2 Vet. App. 609 (1992) (medical evidence which merely indicates that the alleged disorder "may or may not" exist or "may or may not" be related, is too speculative to establish the presence of a claimed disorder or any such relationship). (Continued on the next page)   As the evidence is at least in equipoise in showing that the Veteran has Hepatitis C attributable to service, and resolving all doubt in his favor, the Board finds that service connection is warranted. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Smith, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.