Citation Nr: 20025853 Decision Date: 04/15/20 Archive Date: 04/15/20 DOCKET NO. 17-55 911A DATE: April 15, 2020 ORDER Entitlement to service connection for hepatitis C is granted. Entitlement to service connection for cirrhosis of the liver as secondary to hepatitis C is granted. REMANDED Entitlement to service connection for diabetes mellitus type II as secondary to hepatitis C is remanded. Entitlement to service connection for an acquired psychiatric disability to include depression and anxiety, as secondary to hepatitis C is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran’s current hepatitis C is related to military hepatitis C risk factors. 2. Cirrhosis of the liver is causally related to hepatitis C. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for hepatitis C have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.301, 3.303. 2. The criteria for service connection for cirrhosis of the liver as secondary to hepatitis C have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1983 to November 1987. These issues are before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for hepatitis C In addition to the general service connection regulations, there is additional VA guidance and regulations pertaining to this claim. The VA Adjudication Manual lists medically recognized risk factors for hepatitis C as to include: (a) transfusion of blood or blood product or organ transplant before 1992 or hemodialysis; (b) tattoos or body piercing; (c) intravenous (IV) drug use (with the use of shared instruments); (d) high-risk sexual activity; (e) intranasal cocaine use (also with the use of shared instruments); (f) accidental exposure to blood products as a healthcare worker, combat medic, or corpsman by percutaneous (through the skin) exposure or on mucous membrane; (g) other direct percutaneous exposure to blood, such as by acupuncture with non-sterile needles, or the sharing of toothbrushes or shaving razors; and (h) immunization with a jet air gun injector. See M21-1, III.iv.4.H.2.e (updated January 11, 2018). Although VA’s Adjudication Manual is not binding on the Board, DAV v. Sec'y of Veterans Affairs, 859 F.3d 1072, 1077 (Fed. Cir. 2017) ("The M21-1 Manual is binding on neither the agency nor tribunals"), the list of risk factors provides helpful guidance in deciding this claim. The Veteran’s service treatment records (STRs) do not show any complaints or treatment for liver disease. Post-service treatment records show the Veteran was diagnosed with hepatitis C in 2010. He underwent treatment for chronic hepatitis C from February 2011 to July 2011; from November 2011 to January 2012; and in May 2013. He was restarted on hepatitis C therapy from 12 weeks beginning in May 2014 and then another 12-week round in February 2015. In an October 2013 statement, the Veteran reported that while in service he remembers lining up in lines of 20 people or more and everyone receiving injections by way of the air gun. He indicated that the air gun was not cleaned properly between the service men. He reiterated his contentions in a May 2016 statement. The Veteran indicated that he underwent air gun injections. He indicated that on his right shoulder he received two shots because the first one did not penetrate the skin. He said he looked down and there was blood and clear liquid running down his arm from the air gun. He states that since his service separation, he has not been exposed to blood by health care workers, received any tattoos, piercings, blood transfusions, or organ transplant. He specifically indicated that he has not engaged in high risk sexual behavior or used intranasal or intravenous drugs. This is corroborated by his treatment records. In March 2016, the Veteran submitted a private opinion. The examiner reviewed the claims file in detail and essentially opined that it is at least as likely as not the Veteran’s well-documented chronic hep C infection with resultant stage IV cirrhosis was caused by his in-service exposure to non-sterile air gun use for standard inoculations. She reasoned that there was no evidence or reporting of high-risk sexual activity, drug use, organ transplantation, blood transfusions, hemodialysis, or body piercings. Additionally, there is no evidence the Veteran had hepatitis C prior to military enlistment. Therefore, the Veteran’s recitation of air gun inoculations while in the military is a risk factor that would predispose him to hepatitis C. She stated that except for the tattoo, the evidence of record fails to show the Veteran engaged in pre military and post military risk factors that would lead to hepatitis C contraction. The examiner indicated that even with the report of a tattoo, the National Institutes of Health (NIH) states that hepatitis C transmission via tattooing is rare and confounded by other risk factors. During the October 2017 VA examination, the examiner indicated that the Veteran’s hepatitis C was less likely as not incurred in, caused, or aggravated by service. She reasoned that the hepatitis C had resolved. She indicated that although VA has admitted that infection from the use of these injectors is “plausible,” the likelihood is so remote that it does not meet the evidentiary standard to be considered one of the known modes of transmission of hepatitis C. Indeed, the examiner explained that per National Immunization Program Centers for Disease Control to date, the transmission of the hepatitis C virus by “air gun” vaccination has not been documented. She indicated that per the Merriam Webster Dictionary, plausible is defined as “superficially fair, reasonable, or valuable but often specious.” The examiner went on to note that the Veteran’s May 1983 service entrance examination documents a tattoo on his left arm, done prior to service entrance. Hepatitis C was not within the lab tests completed as part of entrance examination. Therefore, it is plausible that the Veteran could have been infected pre-service. The examiner observed that the Veteran was diagnosed with hepatitis C in 2010, over 20 years post service. It is unknown if he was exposed to hepatitis C during that time. Therefore, the examiner concluded, the available evidence does not provide a direct link between the Veteran’s resolved hepatitis C, and the period of active military service, to specifically include any immunization shots. The Veteran contends a military nexus for hepatitis C is demonstrated. As explained below, the Board finds that the evidence is at least evenly balanced regarding a nexus and service connection for hepatitis C is granted. As an initial matter, the Veteran is competent to report his risk factor history for hepatitis C. His military risk factor reports about sharing razors, receiving multiple air gun inoculations, and possible blood exposure during dental surgery are plausible. The Board finds him credible in his reports of military risk factors and denial of other risk factors. However, the issue of whether the post service hepatitis C diagnosis is related to military risk factors is a complex medical question. This is because of the multitude of possible risk factors. Thus, the Veteran is not competent to report a nexus for hepatitis C. The October 2017 VA medical opinion weighs against the claim. The examiner provided a long explanation. She appears to cite to the left arm tattoo as alternative risk factor that outweighs the military risk factor identified by the Veteran (i.e. air gun inoculation). There are no reports or records that the Veteran had any issues regarding the left arm tattoo or necessitated medical treatment because of any infections. The Board finds that the examiner’s rationale appears to focus on the fact that the Veteran had a left arm tattoo prior to service which could have been the etiology of the hepatitis C and then explained away why the etiology could not be the in-service air gun injections. She also indicated that the Veteran’s hepatitis C had resolved and as such it was not due to military service. The Board finds that although during the examination, the examiner found no current disability, the Veteran had active hepatitis C during the applicable appeal period and therefore has current disability for VA compensation purposes. The March 2016 private opinion is competent medical evidence supporting the claim. Although the examiner relied on the Veteran’s reported history, the history is generally credible. The examiner indicated it was sufficient to relate the Veteran’s current hepatitis C to reported military risk factor of air gun inoculations from when he was in service. She provided adequate rationale to include there was no evidence or reporting of risk factors for hepatitis C. Further, regarding the Veteran’s left arm tattoo, she indicated that NIH states that hepatitis C transmission via tattooing is rare. Based on the foregoing findings, the Board finds that the nexus evidence for hepatitis C is in a state of relative equipoise. There is a competent positive opinion and a competent negative opinion of record. As such, the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran and entitlement to service connection for hepatitis C is warranted. 2. Entitlement to service connection for cirrhosis of the liver as secondary to hepatitis C In addition to the above service connection laws and regulations, service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence of a current disability caused by a service-connected disease or injury. 38 C.F.R. § 3.310(a). Concerning the claim for cirrhosis of the liver, VA treatment records show that the Veteran is diagnosed with cirrhosis of the liver, as a result of hepatitis C. Further in the March 2016 opinion, the examiner stated the Veteran’s cirrhosis of the liver remains as a result of the hepatitis C. Given the foregoing, the elements of secondary service connection are met. See Wallin v. West, 11 Vet. App. 509 (1998). As such, service connection for cirrhosis of the liver as secondary to hepatitis C is warranted. REASONS FOR REMAND 1. Entitlement to service connection for diabetes mellitus type II, as secondary to hepatitis C is remanded. 2. Entitlement to service connection for an acquired psychiatric disability to include as secondary to hepatitis C is remanded. In April 2016 correspondence, the Veteran’s attorney stated on behalf of the Veteran, that his diabetes and psychiatric disabilities are secondary to the hepatitis C. The Veteran Board has just granted entitlement to service connection for hepatitis C above. The Board has a duty to consider all theories of entitlement to the benefit sought. These issues are remanded in order to obtain VA examinations and opinions. 3. Entitlement to TDIU is remanded. In the April 2016 correspondence, the attorney, on behalf of the Veteran indicated that his disabilities, to include diabetes mellitus and psychiatric disabilities render him unemployable. Thus, the issue of entitlement to TDIU is inextricably intertwined with the adjudication of his diabetes and psychiatric disability claims. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Schedule the Veteran for appropriate VA examinations to address the nature and etiology of his diabetes mellitus and mental health disabilities. The claims file must be made available to and reviewed by the appropriate examiners. Any indicated studies should be performed. The examiners should provide opinions as to whether it is at least as likely as not (50 percent or better probability) that diabetes mellitus and psychiatric disabilities began in service, was caused by service, or is otherwise etiologically related to active service, to an in-service event, injury, or disease. Alternatively, the examiners should also address if the Veteran’s diabetes mellitus and psychiatric disabilities are caused or aggravated by his now service-connected hepatitis C. The examiners are asked to provide opinions on both causation and aggravation for the secondary claims. A detailed explanation (rationale) is requested for all opinions provided, citing to supporting clinical data and/or medical literature, as appropriate. The opinions should also address the functional impairment the disabilities have on the Veteran’s everyday activities to include employment. 4. Then, readjudicate the diabetes mellitus and psychiatric disability claims, as well as the inextricably intertwined claim of a TDIU. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. McPhaull, 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.