Citation Nr: 21004409 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 15-38 814 DATE: January 27, 2021 ORDER Entitlement to service connection for hepatitis C is granted. FINDING OF FACT Hepatitis C had its onset in service. CONCLUSION OF LAW Hepatitis C was incurred in active duty. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1976 to February 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a January 2017 videoconference hearing. A transcript of that hearing is of record. During the January 2017 Board hearing, the VLJ clarified the issue on appeal; clarified the concept of service connection claims; identified potential evidentiary defects which included a nexus between the Veteran’s hepatitis and service; clarified the type of evidence that would support the Veteran’s claim; and enquired as to the existence of potential outstanding records. Thus, the actions of the VLJ comply with any related duties owed during a hearing set forth in 38 C.F.R. § 3.103. This matter was previously addressed by the Board in a March 2017 decision. The decision was appealed to the Court of Appeals for Veterans Claims (Court). The Court vacated the Board’s decision and remanded the matter to the Board for further adjudication. The Board remanded the case in August 2019 and September 2020. The Veteran’s claims folder has returned to the Board for further appellate consideration. Service connection for hepatitis C The Veteran has asserted multiple theories as to how he contracted hepatitis C during service, or how his hepatitis C is related to service. The Veteran asserts that he contracted hepatitis C from inoculations by multi-use jet air injectors during service. The Veteran has also stated that he could have been exposed to hepatitis C as a result of in-service dental treatment or while being stationed in Rota, Spain from local residents hired to work on the Naval base. To support this theory, the Veteran has submitted medical literature indicating that the specific genotype of hepatitis C with which he has been diagnosed is most prevalent in the region around Rota, Spain. He has also reported a wart removal, sharing of razors, sexual relations with women while in Spain, and hand cut on glass during service that caused the current hepatitis. Lastly, the Veteran has asserted that hepatitis A, which he was diagnosed with in service, is related to his currently diagnosed hepatitis C. Veterans are entitled to compensation from VA if they develop a disability “resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty.” 38 U.S.C. § 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a veteran 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”-the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). After the evidence is assembled, it is the Board’s responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2019). The Veteran’s service treatment records are unremarkable for any complaints, treatment, or diagnoses specifically related to hepatitis C. Service treatment records document a diagnosis of hepatitis A in 1976, however, later indicate that the Veteran fully recovered from the acute infection. Treatment records are also unremarkable for risk factors for hepatitis C, including tattoos or blood transfusions. Service treatment records document various dental treatment throughout service. Immunization records note that he received multiple vaccinations during service. While they do not indicate whether these were administered with an air gun injector, the Board finds no reason to question the Veteran’s assertion that they were as well as the Veteran’s report of a wart removal and cutting his hand on glass. There is no separation examination of record. The Veteran has submitted private medical records confirming a 2012 diagnosis of hepatitis C, specifically genotype 4. The Veteran has submitted medical literature reporting that this specific genotype is most prevalent in Africa, the Middle East, and northern and southern Spain. In addition, the Veteran has submitted a separate piece of medical literature indicating that approximately 90 percent of infections of hepatitis C in the Middle East and Africa, particularly Egypt, are of genotype 4. This article also states that “HCV-4” has recently spread in several Western countries, particularly in Europe. The article was published in 2008. An additional piece of medical literature notes that hepatitis C can be spread in a “health care setting when injection equipment, such as syringes, [were] shared between patients or when injectable medications or intravenous solutions were mishandled and became contaminated with blood.” The same article noted people infected with hepatitis C may remain asymptomatic for several decades. As will be discussed below, the Board finds that the most probative evidence of record demonstrates that the Veteran currently has hepatitis, specifically hepatitis C, that is due to his active duty. A probative medical opinion is of record concerning the issue of nexus for the Veteran’s hepatitis C in the form of a November 2020 private opinion from M.R., M.D. Dr. M.R. documented a review of the Veteran’s medical history to include the Veteran’s in-service finding of hepatitis A which he determined the Veteran fully recovered from without sequalae as well as the Veteran’s postservice finding of hepatitis C – genotype 4 with positive hepatitis C antibodies and elevated viral load. Dr. M.R. further noted that the Veteran had no risk factors for hepatitis C or chronic hepatitis other than his exposures in service. In this regard, Dr. M.R. noted that the Veteran drank minimally, had no piercings or tattoos, did not engage in high risk sexual behavior (although he did have heterosexual relationships with some local women while in Spain during service), was never incarcerated, and did not use intranasal cocaine or intravenous drugs. He also noted that there are multiple known risk factors for contracting the hepatitis C virus which all involve some form of blood contact. He in particular noted the Veteran’s multiple immunizations using jet injectors during service. While his review of medical literature indicated that the hepatitis B virus could be transmitted through jet injectors, given the similar modes of transmission for hepatitis B virus and hepatitis C virus, the findings were “clearly” applicable to transmission of hepatitis C virus as hepatitis B virus and hepatitis C virus are blood borne pathogens that are transmitted by contact with blood and body fluids. Dr. M.R. also noted that the “relatively rare” genotype 4 of hepatitis C that the Veteran contracted is uncommon in the United States and most of Europe, but it is found more commonly in Spain where the Veteran was stationed during service. With consideration of the foregoing as well as the Veteran’s reported dental work, wart removal, being cut by a piece of glass, and sharing razors, Dr. M.R. concluded that it is more likely than not that the Veteran’s current hepatitis C is related to the Veteran’s service. In this case, the Board finds that the most probative evidence supports a finding that the Veteran currently has hepatitis C that had its onset during the Veteran’s service. In this regard, the Board finds the November 2020 private opinion from Dr. M.R. to be of great probative value as the opinion was based on a thorough consideration of the Veteran’s medical history and supported by an adequate rationale. The Board acknowledges that a VA examiner provided negative nexus medical opinions in December 2013 and September 2015 reports. However, the medical opinions state only that hepatitis C was not diagnosed in service, air gun inoculations are not a major risk factor for hepatitis C, and hepatitis C was not diagnosed for many years after service. The opinions did not address the Veteran’s other potential exposure during service. Also, another VA examiner opined in a February 2020 report that while it is less likely than not that the Veteran’s hepatitis C was incurred in or caused by service, it would be speculation on the examiner’s part to definitely stated whether the Veteran’s time in Spain along with multiple invasive treatment is the initial cause of the contraction of hepatitis C. Further, the examiner did not address the type of hepatitis C the Veteran has. Finally, another VA examiner concluded in a November 2020 report that it is less likely than not that the Veteran’s hepatitis C was incurred in or caused by service. However, the examiner did not address in his rationale the Veteran’s reported wart removal, dental treatment, being cut by glass, sharing razors, and sexual behavior during service in Spain. The examiner also did not address the Veteran’s absence of risk factors for hepatitis C such as the Veteran’s minimal drinking of alcohol, no piercings or tattoos, never being incarcerated, and no use of intranasal cocaine or intravenous drugs. On the contrary, Dr. M.R. addressed these factors in the November 2020 private opinion report in concluding that the Veteran’s current hepatitis C is related to service. Therefore, the Board finds that the aforementioned VA opinions are of minimal probative value and are outweighed by the opinion of Dr. M.R. Accordingly, there is a competent basis to conclude that the Veteran’s current hepatitis C is related to active duty exposure. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2019). Therefore, service connection for hepatitis C is warranted. See 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Arif Syed, 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.