Citation Nr: 20033849 Decision Date: 05/14/20 Archive Date: 05/14/20 DOCKET NO. 17-34 704 DATE: May 14, 2020 ORDER Entitlement to service connection for hepatitis C is granted. REMANDED Entitlement to service connection for an acquired psychiatric disability, including anxiety disorder, and as secondary to the now service-connected hepatitis C is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, his hepatitis C disability is at least as likely as not related to in-service exposure. CONCLUSION OF LAW The criteria for service connection for hepatitis C are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from September 1979 to April 1982. This appeal arises from a December 2012 rating decision, denying service connection for hepatitis C. Then, a January 2014 rating decision continued to deny the hepatitis C claim. The appeal also arises from a May 2015 rating decision, denying service connection for an anxiety disorder. Then, in March 2019, the Board issued a decision denying the appeals for entitlement to service connection for hepatitis C and anxiety disorder. On appeal, the U.S. Court of Appeals for Veterans Claims (CAVC) issued an November 2019 Order that vacated the Board’s prior March 2019 decision, and remanded the matter to the Board. The Court’s Order granted a March 2019 Joint Motion for Remand (JMR) filed by both VA and Appellant (the Parties). The appeal has been returned the Board for further adjudication and consideration of the service connection claims for hepatitis C and anxiety. The Board notes that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. As such the Board has characterized the issue of entitlement to service connection for an anxiety disorder as entitlement to a service connection for an acquired psychiatric disorder, to include anxiety disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). 1. Entitlement to service connection for hepatitis C The Veteran asserts that his hepatitis C was caused by jet gun inoculations, a tattoo, and sexual activity during service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The Veteran has a current hepatitis C disability, per an October 2012 VA examiner’s diagnosis. The service treatment records are silent for indication of hepatitis C. While his August 1979 enlistment exam shows he denied a history of sexually transmitted diseases; in contrast, there are several in-service notations dated throughout 1981 showing that the Veteran complained of and received treatment for discharge and a burning sensation after sexual contact and a March 1982 service separation examination shows he reported a medical history of sexually transmitted diseases. The Board acknowledges an April 2013 VA treatment urology consultation noted a history of high-risk sexual activity dating back to around 1968, or prior to service; nonetheless, as noted in the JMR, he would have been 6 years old at such time, so that the physician’s note is inherently incredible, and thus, not probative. Overall, the Board finds the Veteran’s statements are consistent with the circumstances of his service. Therefore, his lay statements asserting in-service exposure to air gun inoculations, a tattoo, and high risk sexual activity are considered competent and credible. See 38 U.S.C. § 1154(a). Regarding possible etiology to service, the Board observes that an October 2012 VA examiner acknowledged the Veteran’s in-service high risk sexual activity was the highest risk factor for hepatitis C. As noted in the JMR, the October 2012 VA examiner provided a negative nexus opinion that was deficient in not discussing why the Veteran’s high-risk sexual activity during service is not related to his current hepatitis C. Inadequate medical examinations include examinations that contain only data and conclusions, do not provide an etiological opinion, are not based upon a review of medical records, or provide unsupported conclusions. Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Thus, the Board assigns limited probative value to the October 2012 negative nexus opinion. Similarly, the March 2013 Disability Benefits Questionnaire (DBQ) provided a negative nexus opinion both supporting a nexus to blood-transmission and against a nexus to sexual practices, but without any rationale to explain the opinion. Thus, the Board provides no probative value to this opinion. See Nieves- Rodriguez, 22 Vet. App. at 304; Stefl, 21 Vet. App. at 124. A March 2014 VA treating primary care physician’s opinion provides an opinion that seems to attribute hepatitis C to in-service blood/needle exposure as opposed to sexual activity, but couched the opinion in speculative language (i.e., “would suspect”), so this opinion is also not accorded probative value. The Veteran has submitted a highly probative private positive nexus opinion by A.C., a Registered Nurse, that relates his current hepatitis C to service. The March 2020 private medical opinion by A.C. thoroughly reviewed the Veteran’s claims file, including the service treatment records and other medical opinions mentioned above, as well as discussing relevant medical literature. The opinion concluded, “Hepatitis C transmission happens only through exposure to an infected person’s blood. The [V]eteran has a history of exposure to bodily fluids while receiving in-service air-gun inoculations, along with an in-service history of high-risk sexual activity and an in-service tattoo. Thus, it is my opinion that it is at least as likely as not that [the Veteran’s] in-service air-gun inoculations, in-service history of high-risk sexual activity, and in-service tattoo, collectively increased his risk for hepatitis C.” The Board finds this opinion to provide probative evidence in support of the claim, as based on credible reports of in-service exposure to hepatitis C. The Board finds the private medical opinion is probative (persuasive) support of the claim as the A.C.’s rationale was based on a thorough rationale and review of the Veteran’s pertinent medical and service history and current evidence-based medical literature and she relied on her own training, knowledge, in rendering the opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (“It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion.”). In adjudicating this claim, the Board has also considered the doctrine of reasonable doubt. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board resolves doubt in the Veteran’s favor. The evidence is at least in equipoise. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Gilbert, 1 Vet. App. at 53. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disability, including anxiety disorder The Veteran contends his acquired psychiatric disability is secondary to his hepatitis C, for which he has established service-connection, as discussed above. VA treatment records show a diagnosis for anxiety disorder. A February 2015 VA treating psychologist indicated that the Veteran was obsessing about his hepatitis C diagnosis, giving him nightmares and making him anxious about his death since there was no cure. Further, an October 2013 VA treatment record indicates that he reported a depressed mood due to his hepatitis C. Medical comment on the possibility of secondary service connection for the anxiety disorder, as either causally related to or aggravated by his service-connected hepatitis C is needed. 38 C.F.R. § 3.310. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). The matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s acquired psychiatric disorder. (A) The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater) that any diagnosed acquired psychiatric disorder is related to service. (B) Whether it is at least as likely as not that any diagnosed acquired psychiatric disorder was caused or aggravated by his service-connected hepatitis C. A complete rationale should be provided for all opinions rendered. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Biswajit Chatterjee, 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.