Citation Nr: A21019559 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 210108-132508 DATE: December 8, 2021 ORDER Entitlement to service connection for hepatitis C with cirrhosis of the liver is granted. FINDING OF FACT The weight of the probative evidence of record shows that the Veteran's hepatitis C was incurred in or caused by his active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for hepatitis C have been 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 United States Army from April 1977 to June 1981. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review. In January 2021, the Veteran submitted a VA Form 10182 (Decision Review Request: Board Appeal (Notice of Disagreement)) and selected the Hearing Docket. In May 2021, the Veteran testified before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims file. The evidence available for review in this case is the evidence of record at the time of the June 2020 AMA rating decision; the evidence submitted at the hearing, to include testimony provided at the hearing; and the evidence submitted within 90 days of the hearing. See 38 C.F.R. § 20.302(a). Entitlement to service connection for hepatitis C with cirrhosis of the liver Service connection may be established for a disability resulting from diseases or injuries which are present in service or for a disease diagnosed after separation from service, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Under the AMA, the Board must accept any favorable findings made by the AOJ in its adjudication of the claim. The June 2020 rating decision contains a favorable finding that the Veteran has a current diagnosis of hepatitis C, as shown in a September 2019 VA examination. Thus, the AOJ's favorable finding demonstrates the first element of service connection: a current disability. Regarding the second element of service connection, the evidence of record demonstrates findings of hepatitis during active duty service. In that regard, service treatment records dated in February 1978 reflect a diagnosis of viral hepatitis. The Veteran was admitted to the hospital and treated from February 22, 1978 to February 28, 1978. While the medical records from the initial examinations on February 22, 1978 suggest that the hepatitis was "most likely type A," the February 28, 1978 discharge summary and narrative reported that the type of hepatitis was "undetermined." Based on the evidence of in-service diagnoses of and treatment for hepatitis, the Board concludes that in-service incurrence of a disease of injury has been shown. Last, the Board concludes that the weight of the probative evidence of record shows that the Veteran's in-service hepatitis was likely hepatitis C, and that his current hepatitis C is related to his active duty service. In a January 2021 private medical opinion received by the Board in June 2021, Z.M., M.D. opined that it was at least as likely as not that the Veteran's hepatitis C was "most likely than not, contracted or caused by an infection during his active military service . . . ." Dr. Z.M. explained that at time of the Veteran's active duty service, the medical knowledge and literature of that time show that hepatitis C was not known as hepatitis C to the medical community, while hepatitis A and hepatitis B were known. Dr. Z.M. surmised that the finding of an undetermined type of hepatitis was consistent with a person having hepatitis C during that time period. Dr. Z.M. further noted that laboratory testing conducted in July 2003 confirmed no prior exposure to hepatitis A or hepatitis B, but that hepatitis C was repeatedly positive. This fact is corroborated by private medical treatment records dated in July 2003 which state that laboratory testing showed that the Veteran did not have antibodies to hepatitis A or hepatitis B, and that hepatitis C "was repeatedly positive." Dr. Z.M. noted that the Veteran was vaccinated for both hepatitis A and B in 2003-2004, which is why later bloodwork will show positive antibodies for both hepatitis A and B. Dr. Z.M. concluded that, based on the records of his hospitalization in service, the evolution of medical testing, advancements in medical knowledge and nomenclature, in addition to the laboratory testing conducted in 2003, it is more likely than not that the Veteran's hepatitis C was contracted or caused by an infection during his active duty service. Dr. Z.M. provided numerous summaries of and citations to medical literature to support his opinion. The Board finds Dr. Z.M.'s opinion to be highly probative, as it addressed all pertinent evidence in the claims file, provided supporting explanation and rationale, and provided summaries of and citations to relevant medical literature in support of the opinion. The Board acknowledges that there is a conflicting VA medical opinion of record. In a September 2019 VA opinion and May 2020 addendum, a VA physician opined that it was less likely than not that the Veteran's hepatitis C was related to his active duty service. The VA examiner explained that there was documentation to support that the Veteran had hepatitis A, and not hepatitis C, during his active duty service. The examiner further noted that there was "current documentation to show a positive hepatitis A antibody which indicates prior infection with hepatitis A." However, the Board affords little probative weight to the May 2020 VA opinion, as the examiner did not address the 2003 laboratory testing which showed no antibodies to hepatitis A or hepatitis B prior to vaccination, and revealed evidence only of antibodies to hepatitis C at that time with no history of prior vaccination. Additionally, the examiner's conclusion that there is "documentation to support that Hepatitis A (not hepatitis C)" was the source of infection during service is inaccurate, as the service treatment records did not determine the type of hepatitis at that time; rather, they show only a suggestion that hepatitis A was "most likely." As noted above, the service treatment records show that the type of hepatitis infection was undetermined at the time of discharge from the hospital. As the examiner did not address this pertinent evidence in the opinion provided, the Board affords the May 2020 VA opinion little probative value. The law is clear. Pursuant to the "benefit-of-the-doubt" rule, where there is "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the appellant shall prevail upon the issue. 38 U.S.C. § 5107(b). Resolving reasonable doubt in the Veteran's favor, the Board concludes that the probative evidence of record shows that the Veteran's current hepatitis C was incurred in or caused by his active duty service. Accordingly, the claim for entitlement to service connection for hepatitis C is granted. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Katz, 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.