Citation Nr: 21008194 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 07-32 661 DATE: February 11, 2021 ORDER Entitlement to service connection for hepatitis C is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, hepatitis C began during active service. CONCLUSION OF LAW The criteria for service connection for hepatitis C are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Marine Corps from April 1969 to October 1970. The Veteran died in August 2013. The appellant is the Veteran’s surviving spouse. This issue comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2006 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2010, the Veteran and appellant testified at a hearing before a Veterans Law Judge (VLJ). The transcript is of record. In January 2017, the appellant was advised that the VLJ who conducted the November 2010 hearing was no longer employed by the Board. In August 2017, the appellant testified at a Board hearing before the undersigned VLJ. The transcript is of record. The issue was previously before the Board, most recently in October 2020, when remanded for an addendum VA medical opinion. The Board finds that there has been substantial compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for hepatitis C is granted. The appellant contends that the Veteran had incurred hepatitis C during active service. The Board concludes that the Veteran had a current disability that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). September 2003 VA examination report shows that the Veteran had a current diagnosis of hepatitis C. Thus, the question becomes whether the current disability is related to service. On this question there are probative opinions in favor of and against the claim. The evidence against the claim includes April 2010, April 2012, October 2019, and October 2020 VA medical opinions. The April 2010 VA examination report included the opinion that the Veteran’s hepatitis C was not caused by service. The April 2012 VA examiner opined that the Veteran’s hepatitis C was less likely than not (less than 50 percent probability) incurred in or caused by service. The April 2010 and April 2012 VA examiners relied, however, on a lack of medical records of the Veteran’s continuity of symptoms since service, which do not necessarily undermine the Veteran’s lay statements to the contrary. Lay evidence cannot be found not credible solely due to the lack of contemporaneous medical records. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The October 2019 VA examiner also opined that the Veteran’s hepatitis C was less likely than not (less than 50 percent probability) incurred in or caused by service. The October 2019 VA examiner explained that the Veteran had tested positive for Hepatitis C in 2003 after donating blood and had donated blood for years before that time without testing positive for Hepatis C. The record, however, also contained a contrary VA medical opinion (see below). The October 2020 VA examiner offered two medical opinion, including that hepatitis was less likely than not (less than 50 percent probability) incurred in or caused by the Veteran’s in-service exposure to dead bodies. The October 2020 VA examiner explained that the “fear of spread by disease by bodies killed in trauma rather than a disease is not justified. Steven Rottman, Director of the UCLA Public Health and Disaster said that no scientific evidence exist that bodies of disaster victims increase the risk of epidemics.” The Veteran and the Veteran’s spouse substantiated the Veteran’s exposure to dead bodies in various treatment notes and lay statements made throughout the period at issue and photographic evidence from the Veteran’s time in service. This was not the Veteran’s only theory of entitlement that the October 2020 VA examiner opined on (see below). The evidence in favor of the claim included June 2011 and October 2020 VA examinations. The June 2011 VA examiner found that the Veteran’s hepatitis C was at least as likely as not related to the Veteran’s blood exposure in Vietnam. The June 2011 VA examiner went so far as to write that “the logical cause” of the Veteran’s hepatitis C was his exposure to blood in Vietnam. The June 2011 VA examiner noted that the Veteran had reported symptoms consistent with hepatitis C as early as 1985. The June 2011 VA examiner further explained that hepatitis C “can be dormant and not manifested for 10-20 years” and that it was “very likely” hepatitis C virus was missed and not detected earlier because screening at the time was “not that sophisticated.” The October 2020 VA examiner also opined that it was possible a veteran may contract Hepatitis C through unsafe air gun inoculations such as unsterilized equipment, a likely vehicle for hepatitis C. The October VA examiner explained that air gun inoculations should be considered as a risk factor for hepatitis C. However, the VA examiner also wrote, “whether the veteran contracted Hepatitis C thru air gun inoculation is speculative since the answer whether the equipment was well sterilized or not, is not known.” However, there is uncontroverted lay evidence that the equipment was not sterilized. In August 2017, the Veteran’s spouse testified that the Veteran had said that the air gun had blood on it, was never cleaned, and the Veteran’s encounter with the air gun was like “a mass production.” This is consistent with the Veteran’s own lay statements from October 2007. The Veteran had also submitted a March 2003 email about a similar account regarding a different Veteran. A July 2018 VA examiner was not able to offer a medical opinion without resorting to speculation. Upon review of the record, the Board finds the evidence to be at least even as to whether the Veteran’s current hepatitis C arose in service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for hepatitis C is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The claim is granted. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James Hekel, 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.