Citation Nr: 20026219 Decision Date: 04/16/20 Archive Date: 04/16/20 DOCKET NO. 16-00 770 DATE: April 16, 2020 ORDER Service connection for hepatitis C is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran’s hepatitis C is etiologically related to his in-service exposure to jet air gun inoculations. CONCLUSION OF LAW The criteria for service connection for hepatitis C have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1968 to June 1971. In a decision issued in October 2018, the Board, in pertinent part, denied entitlement to a service connection for hepatitis C and an acquired psychiatric disorder. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In September 2019, the Court issued an Order that vacated the Board’s October 2018 decision with respect to those issues and remanded the matters on appeal for adjudication consistent with the instructions outlined in a September 2019 Joint Motion for Partial Remand (JMPR) by the parties. In October 2018, the Board also remanded the issues of entitlement to service connection for bilateral foot disorder and entitlement to a total disability based on individual unemployability. As these issues are still undergoing development and the Agency of Original Jurisdiction (AOJ) has not yet returned them to the Board and they will not be addressed herein. The Board notes that after certification of the claims on appeal, additional VA treatment records dated through March 2020 were added to the claims file. While the AOJ has not considered this evidence in conjunction with this appeal, as the claim for hepatitis C is being granted herein and the claim for an acquired psychiatric disorder is being remanded, the Veteran is not prejudiced by the Board’s discussion of this evidence for the purpose of granting his claim or for issuing a comprehensive remand, as the AOJ will have the opportunity to consider this evidence. Accordingly, a waiver of initial AOJ consideration is not required in this case. See 38 C.F.R. § 20.1304. 1. Entitlement to service connection for hepatitis C. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). 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). 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). With an approximate balance of positive and negative evidence on a relevant issue, VA resolves reasonable doubt in the claimant’s favor. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The record shows the Veteran has been diagnosed with a hepatitis C. See December 2013 VA Examination report. Such is sufficient to meet the requirement of a current disability. As for service incurrence, the Veteran asserted that he was exposed to contaminated blood through an air gun inoculation while in the military. Specifically, he asserted that the air gun inoculation apparatus was smeared with a thin coat of blood and was used on him without being disinfected. See June 2014 Correspondence. The Veteran’s service treatment records reflect that he was vaccinated in October 1968, November 1968, June 1969, April 1970, November 1970, and February 1971. As such, after affording the Veteran the benefit of the doubt, the Board finds that he was exposed to contaminated blood during his active duty service. With respect to the final question of whether the Veteran’s hepatitis C is related to his in-service exposure to contaminated blood, the Board finds that the evidence is at least in equipoise as to whether a nexus exists. In pertinent part, in November 2013 a private nurse consultant rendered a positive etiological opinion indicating that it was at least as likely as not that the Veteran’s hepatitis C was the result of non-sterile air gun standard inoculations during service. While she indicated that it may be impossible to determine with any degree of certainty exactly what caused the Veteran’s hepatitis C infection, she also stated that the Veteran reported bleeding from the vaccination site into the pneumatic gun and that hepatitis C was spread through contact with blood and bodily fluids of an infected person. She explained that the Veteran did not have any other risk factors for hepatitis C to include intravenous drug use, high risk sexual activity, organ transplantation, hemodialysis, or blood transfusion prior to 1992. She also explained that, although the Veteran reported an unknown form of hepatitis as a child, there are no details about the cause or type and there was no family history for hepatitis C. Therefore, it could not be assumed that the Veteran had hepatitis C when he enlisted in the military. The Board finds this opinion probative as it was based on an adequate rationale and the Veteran’s uncontroverted statements regarding what he saw during his military service. Thus, this evidence reasonably establishes a nexus. The Board acknowledges the negative nexus opinion provided by the December 2013 VA examiner. However, in rendering the negative nexus opinion, the examiner failed to provide a complete rationale. In pertinent part, the examiner did not consider/discuss the November 2013 positive nexus opinion. Moreover, the examiner did not otherwise explain why air guns (which were needleless) would be unlikely to enter the Veteran’s blood stream, especially given the fact that air guns were used specifically to inject vaccines. As such, this opinion is outweighed by the more probative evidence of record above. Accordingly, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s hepatitis C is related to his service, and thus service connection is warranted. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 49. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder is remanded. VA treatment records document current psychiatric diagnosis. See August 2012 VA Treatment records. He also asserts his psychiatric disorder was caused/aggravated by his service-connected hepatitis C. VA treatment records also reflect the Veteran’s reports that he experienced psychiatric symptoms related to his treatment for hepatitis C. See April 2012 VA Treatment records. To date, no VA medical opinions have been obtained to address the etiology of this disorder. The Board finds that this evidence is sufficient to trigger VA’s duty to obtain a VA medical opinion regarding secondary service connection. See McLendon v. Nicholson, 20 Vet. App. 79, 81-84 (2006); see also 38 C.F.R. § 3.159(c). The matter is REMANDED for the following action: Obtain a VA addendum opinion from an appropriate examiner to determine the nature and etiology of the Veteran’s acquired psychiatric disorder. The Veteran’s claims file (to include this decision) must be reviewed by the examiner in conjunction with the examination. a) The examiner should provide a diagnosis for any current psychiatric disorder. In rendering such diagnosis, the examiner should specifically consider and discuss any previous psychiatric diagnoses of record. b) The examiner must provide an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that any diagnosed acquired psychiatric disorder was caused or aggravated by his service-connected hepatitis C. Aggravation in this context is defined as any increase in disability. This opinion must be accompanied by a rationale. Such rationale must also specifically consider and discuss the Veteran’s reports that he experienced depression with hepatitis C treatment. See April 2012 VA Treatment records. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. E. Metzner, Associate 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.