Citation Nr: 21005655 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 17-26 950 DATE: February 2, 2021 ORDER Entitlement to service connection for hepatitis C is granted. Entitlement to service connection for cirrhosis is granted. FINDINGS OF FACT The evidence is in relative equipoise as to whether the Veteran’s hepatitis C and subsequent cirrhosis are the result of in-service vaccinations. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hepatitis C have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for cirrhosis have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1973 to December 1974. In November 2020, the Veteran testified at a virtual teleconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claims file. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be established for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 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 will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Entitlement to service connection for hepatitis C 2. Entitlement to service connection for cirrhosis The Veteran contends that he contracted hepatitis C and subsequently developed cirrhosis due to in-service inoculations. The Veteran has reported that during service there was a gun used to inoculate everyone’s arms, and he was not sure the gun was cleaned. He reported that the same inoculation gun was used for each person, and that blood would shoot out like an aerosol. The Veteran explained that this process appeared highly unsanitary, and that blood was transmitted from one person to the next. The Veteran has also reported that his cirrhosis or liver disease is an exacerbation of his hepatitis C. See Hearing Transcript at 3. At the outset, the Board acknowledges that the Veteran has been diagnosed with hepatitis C which has progressed into liver cirrhosis, and that during service the Veteran was vaccinated. The remaining question for the Board is whether the Veteran’s hepatitis C and resultant liver cirrhosis are related to his active service. In support of his claim, the Veteran provided a letter from a Dr. T.L. dated January 2015. In the letter, Dr. T.L. explained that at the time of the Veteran’s diagnosis of hepatitis C around 2002, his hepatitis C was already fairly advanced liver disease, suggesting that he had acquired the disease for more than 15 years. Dr. T.L. continued, stating that as a direct test for hepatitis C was not available until the 1990s, it was not unexpected or unusual that the Veteran would go many years without detection. In addition, he explained that it is not unusual for patients to be asymptomatic after acute infection and to have normal or even “high normal” liver tests for many years in the setting of chronic hepatitis C infection. Dr. T.L. concluded that if the Veteran was taken at his word that there were no significant risk factors, it was at least equally likely than not that the Veteran acquired hepatitis C from an air injection gun while in service. In a follow up letter in August 2015, Dr. T.L. clarified and opined that the Veteran’s end stage liver disease was secondary to his hepatitis C. In an August 2016 VA examination, an examiner confirmed the Veteran’s hepatitis C, but indicated that it was not clear how the Veteran obtained the hepatitis C infection. In another note, the examiner found that it was assumed that the Veteran’s hepatitis C was caused by air gun vaccinations during induction into the military. She noted that the Veteran’s hepatitis C was now cured, but he suffered from the resultant liver cirrhosis; the examiner opined that the Veteran’s cirrhosis of the liver was secondary to his hepatitis C infection. The examiner indicated that it was unclear how the Veteran obtained a hepatitis C infection. The Veteran was afforded an additional VA examination in January 2017 performed by the same examiner from the August 2016 examination. In January 2017, the examiner provided that her opinion had not changed since 2016. She found that there was no evidence that this Veteran contracted hepatitis C from anything but the air gun used during service. She continued, stating that this was feasible, as according to medical literature, needle injection can transmit hepatitis C; the data showed that injection with an infected needle is the most efficient mode of transmission of the hepatitis C virus. In March 2017, a different VA examiner provided an opinion following a review of the Veteran’s records. This examiner determined that the Veteran’s hepatitis C was less likely than not incurred in or caused by an in-service injury, event, or illness. The examiner reasoned that there was no evidence to support the transmission of hepatitis C during group injections as a part of military induction vaccinations. The examiner explained that while it was theoretically plausible, cohort studies of military recruits have not found evidence to support the theory. The examiner also provided that in the United States, individuals born between 1945 and 1965 have higher prevalence of HCV in general, regardless of military service, with up to 30 percent of HCV infected individuals having no identifiable risk factors. The VA examiner also noted that the previous January 2017 VA examiner did not address the increased prevalence of HCV among individuals born between 1945 and 1965 regardless of military service, nor did the prior VA examiner address the plausibility of contraction of HCV through air gun injection when cohort studies of veterans had not supported such an etiology. The VA examiner concluded that attributing the Veteran’s HCV to air gun vaccinations in service could not be done without resorting to conjecture. In May 2017, the Veteran submitted correspondence including several articles linking jet gun injectors used in military service to the occurrence of hepatitis C in veterans. In his May 2017 Form 9, the Veteran expressed his disagreement with the March 2017 VA examiner’s opinion. The Veteran emphasized that his only risk factor other than in-service inoculations was his date of birth, between 1945-1965. Upon review of the evidence of record, the Board finds that the statements from Dr. T.L., the August 2016 VA opinion, and the January 2017 VA opinion, all finding a nexus between the Veteran’s hepatitis C, and resultant liver condition, and service, taken together with the other evidence of record, place the evidence in relative equipoise. In making this determination, the Board has considered the negative nexus opinion from the March 2017 VA examiner. Nonetheless, there are two other medical professionals on record who have reached opposite conclusions, finding a link between service and the Veteran’s liver disabilities. As such, resolving all doubt in favor of the Veteran, the Board finds that a nexus has been established between the Veteran’s hepatitis and resultant liver condition and his in-service vaccinations. In consideration of the above, the Board resolves all doubt in favor of the Veteran and finds the probative evidence of record demonstrates that the Veteran’s hepatitis C, which has subsequently evolved into a liver condition, was caused by his active service. Thus, service connection for hepatitis C and cirrhosis is warranted. See 38 U.S.C. § 5107(b); see also 38 C.F.R. §§ 3.102, 3.303; Gilbert v. Derwinski, 1 Vet. App. at 53-56 (1990). JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Vosburgh, Associate 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.