Citation Nr: 21064518 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 16-13 581 DATE: October 20, 2021 ORDER The claim for service connection for hepatitis C is granted. FINDING OF FACT The evidence is in relative equipoise as to whether the Veteran's hepatitis C was causally related to active service. CONCLUSION OF LAW The criteria for service connection for hepatitis C are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from July 1969 to July 1971 with service in the Republic of Vietnam. He died in December 2016. The appellant is his surviving spouse and has substituted as the claimant for purposes of processing this appeal. This matter comes before the Board of Veterans' Appeals (Board) from an August 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, denied an application to reopen a previously denied claim of service connection for hepatitis C. The Veteran filed a timely Notice of Disagreement (NOD), received in August 2014. A Statement of the Case (SOC) was issued in March 2016 and a timely substantive appeal was received in March 2016. The appellant was afforded a travel Board hearing before the undersigned Veterans Law Judge (VLJ) in July 2019. A transcript is of record. In January 2020, the Board reopened the previously denied claim for service connection for hepatitis C and remanded the matter for further evidentiary development. The claim returned to the Board in June 2021, when it was again remanded. Following the ordered development, the RO issued a supplemental statement of the case (SSOC) in August 2021. The matter has now returned to the Board for further appellate consideration. 1. Entitlement to service connection for hepatitis C The appellant contends that service connection is warranted for the Veteran's hepatitis C as it was incurred due to in-service exposures. First, the appellant contends that hepatitis C was incurred when the Veteran received vaccinations with an air gun injector. Second, the appellant contends that the Veteran was exposed to blood from injured servicemen while engaged in combat in Vietnam in late September or early October 1970. The Veteran performed first-aid on the wounded soldiers and contracted hepatitis C from their blood. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. "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." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In rendering a decision on appeal, the Board must 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); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert, 1 Vet. App. at 54. The Board notes that medically recognized risk factors for hepatitis C include: (a) transfusion of blood or blood product before 1992; (b) organ transplant before 1992; (c) hemodialysis; (d) tattoos; (e) body piercing; (f) intravenous drug use (with the use of shared instruments); (g) high-risk sexual activity; (h) intranasal cocaine use (also with the use of shared instruments); (i) accidental exposure to blood products as a healthcare worker, combat medic, or corpsman by percutaneous (through the skin) exposure or on mucous membrane; and (j) other direct percutaneous exposure to blood, such as by acupuncture with non-sterile needles, or the sharing of toothbrushes or shaving razors. See VA Training Letter 01-02 (April 17, 2001). The Board finds that the evidence is at least in relative equipoise as to whether the Veteran contracted hepatitis C during active duty. The record establishes both in-service and post-service risk factors for the incurrence of hepatitis C, but the competent evidence of record is in approximate balance regarding whether the Veteran's hepatitis C was contracted due to in-service activities and exposures. The first two elements of service connection are clearly present in this case. Hepatitis C was first identified at the VA Medical Center (VAMC) in April 2003 during a gastroenterology consultation based on routine bloodwork. The Veteran never received specific treatment for hepatitis C, but the diagnosis was noted throughout his treatment records, with mild liver inflammation and fibrosis demonstrated on a July 2004 liver biopsy. A current disability is therefore present. The Board also finds that in-service injuries (i.e., hepatitis risk factors) are present. The Veteran's July 1971 separation examination shows that he acquired a tattoo on his left arm during active duty. The Veteran consistently reported that this tattoo was self-administered. The Veteran also received multiple immunizations during active service in 1969 and 1971. The delivery method of these immunizations is not specified, but the Veteran stated on multiple occasions that he was vaccinated with a pneumatic injector ("air gun") that was not cleaned or sterilized between use. The Veteran also reported two other risk factors for hepatitis C during service: that he had multiple sexual partners during active duty and was exposed to blood in 1969 when he administered first aid to wounded soldiers during combat. The Veteran is competent to report events and injuries during service, and the Board finds that his statements are credible. Additionally, service records confirm the Veteran's participation in combat and exposure to blood is consistent with this combat service. The Board therefore finds that multiple in-service risk factors for hepatitis C are established and the second element of service connection is present. Regarding the third element of service connection, a link between the Veteran's hepatitis C and his in-service risk factors, the competent medical evidence of record is in even balance for and against the claim. The claims file contains four VA medical opinion reports addressing the etiology of the Veteran's hepatitis C, but these opinions disagree regarding the level of risk from the Veteran's in-service activities, as well as what activities in the Veteran's life represent the most likely source of infection for hepatitis C. The first opinion, issued following a physical examination in March 2010, found that the Veteran's self-administered tattoo in service and his sexual activities before, during, and after service were all low risk for the development of hepatitis C. In contrast, a December 2020 VA opinion categorized the Veteran's tattoo and sexual history as high risk activities, but mistakenly identified these risk factors as nonservice-related. The December 2020 medical opinion, in essence, weighs in favor of an award of service connection as the risk factors identified by the examiner occurred during active duty. In June 2021, a third VA examiner characterized the Veteran's multiple sex partners as a "high risk activity," but concluded that hepatitis C was less likely than not contracted during service because the Veteran had no symptoms (such as stomach pain, vomiting, fever, yellow skin/eyes) after the claimed air gun vaccinations and blood exposure during combat. The June 2021 VA examiner noted that symptoms of hepatitis C typically occur two to 12 weeks after exposure. However, the Board does not find this rationale convincing as the Veteran had no symptoms of hepatitis C at the time of his diagnosis in 2003 or at any time during the claims period; hepatitis C was identified following routine bloodwork ordered in response to the Veteran's answers on a standard hepatitis C risk screening at the time of his initial visit to the VAMC. Finally, in August 2010, a fourth VA examiner found that the question of the etiology of the Veteran's hepatitis C could not be resolved without resort to mere speculation. The four VA medical opinions of record are therefore contradictory regarding the relative severity of the Veteran's in-service risk factors, when exposure to hepatitis C occurred, and even whether it is possible to determine the etiology of the Veteran's infection with any degree of certainty. The only agreement among the medical opinions comes from the March 2010, December 2020, and June 2021 VA examiners' conclusions that the Veteran's air gun injector vaccinations were not the source of his hepatitis C infection. The examiners opinions were based on the lack of support for air guns as a source of communicable disease in the relevant medical literature. However, these opinions did not account for evidence presented by the appellant's representative in a May 2016 brief in support of the claim. The appellant's representative referenced several documents containing evidence in favor of the Veteran's exposure to hepatitis C via in-service air gun injector immunizations. The representative cited to a June 2004 VA Fast Letter which noted that although there is a lack of scientific evidence to document transmission of the hepatitis C virus with air gun injectors, it was "biologically plausible." The representative also cited to a document from the Center of Disease Control (CDC) MMWR (Morbidity and Mortality Weekly Report) dated June 1986 which confirmed a high correlation between auto gun injectors and hepatitis infection. Additionally, the representative referenced a Department of Defense Epidemiology Board study dated January 1988 which strongly recommended auto-injectors not be used because of the risk of blood borne diseases. The documents cited by the representative are not included in the claims file and the representative does not allege that they make specific reference to the Veteran's case or circumstances, but they do indicate air gun injectors have been recognized as a possible risk factor for the contraction of hepatitis C. The VA examiners did not specifically address these contentions and this failure further reduces the probative value of their medical opinions. Based on the above, the Board concludes that the source of the Veteran's hepatitis C infection cannot be established to a certainty, including whether he contracted the virus during active duty. As set forth above, certainty is not required in claims for VA benefits; rather, under the benefit-of-the-doubt rule, for the Veteran to prevail, there need not be a preponderance of the evidence in his favor, but only an approximate balance of the positive and negative evidence. See Gilbert, 1 Vet. App. at 54. In other words, the preponderance of the evidence must be against the claim for it to be denied. Given the evidence set forth above, the Board finds that such a conclusion cannot be reached in this case. Thus, the Board finds that the evidence is at least in a state of equipoise and requires resolution in the appellant's favor. Based on the foregoing, and resolving any reasonable doubt in the Veteran's favor, the Board finds that service-connection for hepatitis C is warranted and the claim is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 K. Conner Veterans Law Judge Board of Veterans' Appeals M. Riley, Attorney for the Board Department of Veterans Affairs 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.