Citation Nr: 20026675 Decision Date: 04/17/20 Archive Date: 04/17/20 DOCKET NO. 17-33 565 DATE: April 17, 2020 ORDER New and material evidence has been submitted to reopen the previously denied claim for service connection for hepatitis. Service connection for hepatitis C is granted. FINDINGS OF FACT 1. New evidence has been received since the final July 1975 rating decision, which is not cumulative and relates to an unestablished fact necessary to substantiate the Veteran's claim for service connection for hepatitis. 2. Resolving all reasonable doubt in the Veteran's favor, his current hepatitis C is related to active service. CONCLUSIONS OF LAW 1. New and material evidence has been received since the final July 1975 rating decision; accordingly, the claim for service connection for hepatitis is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 2. The criteria for service connection for hepatitis C have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1972 to June 1975. In January 2020, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. 1. Whether new and material evidence has been submitted to reopen the claim for service connection for hepatitis. To reopen a claim following a final decision, new and material evidence must be received. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The record shows that in June 1975, the Veteran initially filed a claim for service connection for hepatitis. In a July 1975 rating decision, the Regional Office (RO) denied service connection for serum hepatitis, finding no current disability was shown. The Veteran was notified of this decision, but did not appeal or submit new and material evidence within one year of the decision; thus, the July 1975 rating decision is the last final disallowance of the claim. 38 C.F.R. § 3.156(b). Evidence at the time of the July 1975 rating decision included service treatment records (STRs), which showed treatment for serum hepatitis in service, but at the time of his separation, the condition was asymptomatic. Evidence received since the July 1975 rating decision includes the Veteran’s statements, his January 2020 Board hearing testimony, VA treatment records, a private doctor’s opinion, and VA examiner’s opinions. This evidence is new in that it was not previously submitted, and includes VA examiner’s opinions and a private doctor’s opinion which show that the Veteran has a current diagnosis of hepatitis that may be related to service. Accordingly, new and material has been received and the claim for entitlement to service connection for hepatitis is reopened. In considering the reopened claim, the Board notes that the Veteran contends his current hepatitis is related to service. While his contentions and credibility regarding the cause of his hepatitis have varied, the record is clear that he did engage in intravenous (IV) drug use in service and also received at least two tattoos during service, both of which activities have been identified as risk factors for hepatitis B and C. He also recently posited that his hepatitis is related to the use of a jet air gun injector for immunizations in service. After reviewing the record, and resolving reasonable doubt in favor of the Veteran, the Board concludes that his hepatitis C is related to active service. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303. STRs show that on the enlistment examination in June 1972, the Veteran was shown to have no tattoos at the time of entrance into service. In September 1974, he was admitted to the sick list at Naval Regional Medical Center with a diagnosis of hepatitis. He admitted to illicit IV drug use since April 1974. He was discharged in February 1975, and was found to be asymptomatic and not on any medications. Although maximum benefits of military hospitalization had been obtained, due to the persistence of abnormal liver enzymes, he was advised to have serial liver studies, and if persistent elevation occurred in 3 months, he was to have a liver biopsy to rule out chronic aggressive hepatitis. In February 1975, a Medical Board Report revealed a primary diagnosis of serum hepatitis and secondary diagnosis of illicit drug use. It noted that at the time of his hospital admission in September 1974, the Veteran had tattoos on the right and left shoulders. STRs further show that a report of Physical Evaluation Board (PEB) proceedings in March 1975, noted a diagnosis of serum hepatitis, and also noted illicit drug use. The PEB found that the disability was due to intentional misconduct or willful neglect and not the proximate result of active duty. In a March 1975 letter from the Office of Naval Disability Evaluation, it was noted that members of the Physical Review Counsel (PRC) did not concur with the findings of the PEB. The PRC found the Veteran unfit because of serum hepatitis, but also found it was not due to intentional misconduct or willful neglect, was not incurred during a period of unauthorized absence, and was the proximate result of active duty. The PRC also found the Veteran unfit because of illicit drug abuse, but concluded that his serum hepatitis could not with absolute certainty be attributed to drug abuse. Post-service treatment records include a November 2016 VA record which shows that the Veteran tested positive for the hepatitis C virus. Although he had serum hepatitis (hepatitis B) in service, there is no indication that he currently has a diagnosis of hepatitis B. Thus, the Veteran has a current disability of hepatitis C. With regard to risk factors, the Board notes that there have been two main risk factors posited – including tattoos and IV drug use. It is clear from the record that the Veteran did obtain tattoos in service. In January 2020, the Veteran testified his hepatitis was related to his receiving a tattoo during service, which he claims occurred after he lost a challenge involving another shipmate. He testified he was taken to a room above the main tattoo parlor, and that the room was unkempt and did not fit what a tattoo parlor would look like, and that he had scarring in the location of the tattoo. With regard to IV drug use, in a January 2018 statement, the Veteran indicated he wanted to clarify his IV drug use and stated that when “on occasion [he] used IV drugs [he] used his own sterile glass syringe” to prevent infection and disease. However, in January 2020, he testified there may have been casual drug use when he was overseas, but that he did not use needles. As there have been inconsistencies in the Veteran’s report of IV drug use in service, the Board finds him not credible as to this because it is clear he did engage in IV drug use in service. This is somewhat irrelevant though, as the Veteran did credibly report having another risk factor (tattoo) which has been shown by the evidence. The question becomes whether the Veteran’s hepatitis C is related to service. On this question the Board notes that there are several medical opinions of record, which, for reasons set forth below, have basically rendered the evidence in equipoise. In support of the Veteran’s claim, is the May 2017 VA Disability Benefits Questionnaire (DBQ), in which the Veteran reported using heroin in service, but denied IV drug use after service. The examiner indicated that co-infection with hepatitis B and hepatitis C was not uncommon and that the Veteran had a history of high-risk behavior predisposing to both types of hepatitis. The examiner opined that the Veteran’s hepatitis C was more likely than not due to serum hepatitis during service, and also noted that he engaged in high-risk activity (IV drug use and tattoos) in service and opined this was more likely than not the cause of hepatitis B in service. The examiner also opined the Veteran had chronic hepatitis from both hepatitis B and hepatitis C. On a VA DBQ in December 2017, the examiner was asked to provide a clarifying opinion, and stated that both IV drug use and tattoos must be considered as a risk factor and cause of hepatitis, but also stated that the use of a nail for a tattoo “may be less likely” depending on if shared or used on another person, noting that this information was not available. The examiner indicated that the Veteran’s IV drug use was the most likely factor, and that the risk factor of IV drug use was a higher risk than the tattoos. Finally, the examiner opined that drug use was at least as likely as not the cause of the Veteran’s diagnosed hepatitis infection. The Board finds the December 2017 VA examiner’s opinion to be probative because it is based on an accurate medical history and clearly states that both IV drug use and tattoos must be considered as a risk factor and cause of hepatitis. The examiner also speculates that use of a nail for a tattoo may be less likely the cause of hepatitis, if shared or used on another person, but noted this information was not available. Although the VA examiner then opined that drug use was at least as likely as not the cause of hepatitis, the Board notes that the rationale behind this opinion is equivocal and casts uncertainty. The Board acknowledges that in January 2018, the Veteran submitted a letter signed by a private doctor, whose name is difficult to discern, who opined that the Veteran “could have contracted Hep B/C from unsanitary tattoo tools”, but notes that his opinion is conclusory, without supporting rationale, and is phrased in speculative ("could have") terms. The competent medical evidence against the claim includes a November 2016 VA DBQ in which the examiner noted the Veteran was diagnosed with hepatitis C, had IV drug use, and was infected with hepatitis B in 1974 due to illegal drug use. The examiner opined the Veteran’s hepatitis was at least as likely as not incurred in service, noting that serum hepatitis was due to illicit drug use, that hepatitis B and C are contracted the same way, and that it was as likely as not that the Veteran contracted hepatitis C the same time he contracted hepatitis B. Additionally, in a January 2018 VA DBQ, the examiner opined that the Veteran’s hepatitis was less likely than not caused by jet air gun injector use in service. For rationale, the examiner noted that his history of illicit injection drug use was the predominant risk factor and most likely cause of hepatitis B/serum hepatitis. The examiner noted there was no convincing evidence of hepatitis from jet air gun injector, and that although it was possible in theory, there was not enough evidence to confirm this as a risk factor. The examiner noted that STRs showed that he was diagnosed with serum hepatitis and illicit drug use in service and that in February 1975, he reported continued illicit drug abuse while on rehabilitation status. With regard to these medical opinions, the Board notes that when there is conflicting evidence in the record, it is the responsibility of the Board to weigh the medical evidence, and determine where to give credit and where to withhold the same and, in so doing, may accept one medical opinion and reject others. Evans v. West, 12 Vet. App. 22, 30 (1998). The Board is mindful it cannot make its own independent medical determinations, and that it must have plausible reasons, based on medical evidence in the record, for favoring one medical opinion over another. In weighing the conflicting medical opinions, the Board notes that the various VA examiner’s opinions were based on a review of the record, with citations to pertinent parts of the Veteran’s medical history, and rendered definitive opinions with supporting rationale, including addressing other possible theories of entitlement. The Board finds that the opinions rendered by the VA examiners in May and December 2017 are slightly more persuasive and probative than the November 2016 and January 2018 VA examiner opinions, because they consider the Veteran’s in-service tattoos as a risk factor. STRs also show that although the PEB concluded the Veteran’s serum hepatitis was due to illicit drug use, the PRC found that the Veteran’s serum hepatitis could not with absolute certainty be attributed to drug abuse. (Continued on the next page)   In light of the competent medical opinions for and against the Veteran’s claim, and resolving all reasonable doubt in his favor, the Board finds that service connection for hepatitis C is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Casula 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.