Citation Nr: 21009724 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 14-36 072 DATE: February 23, 2021 ORDER Entitlement to service connection for Hepatitis C is granted. FINDING OF FACT Resolving all doubt in favor of the Veteran, his current Hepatitis C was incurred in military service. CONCLUSION OF LAW 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. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from November 1976 to April 1978 and from September 1990 to May 1991, including in the Southwest Asia theater of operations. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, denied service-connection for Hepatitis C and a total rating based on individual unemployability due to service-connected disability (TDIU). The Veteran was afforded a travel Board hearing before the undersigned Veterans Law Judge in July 2019. A copy of the transcript has been associated with the claims file. In November 2019, the Board remanded the matter for additional evidentiary development. While the matter was in remand status, in a September 2020 rating decision, the RO granted TDIU, effective April 24, 2012. In September 2020, the RO issued a Supplemental Statement of the Case addressing the remaining issue on appeal – entitlement to service connection for Hepatitis C – and thereafter returned the matter to the Board. Entitlement to service-connection for Hepatitis C. The Veteran contends that he contracted Hepatitis C during his period of active service from September 1990 to May 1991. 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. Service treatment records from the Veteran’s September 1990 to May 1991 period of service are unavailable. The Court of Appeals for Veterans Claims (Court) has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of- the-doubt rule. See O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The case law does not, however, lower the legal standard for proving a claim for service-connection, but rather increases the Board’s obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (the Court declined to apply an “adverse presumption” where records have been lost or destroyed while in Government control which would have required VA to disprove a claimant’s allegation of injury or disease in service in these particular cases). In support of his claim, the Veteran has submitted letters from the blood bank where he gave blood (M.C.B.C.). These letters include a November 1991 letter which advised the Veteran that laboratory studies in connection with his recent blood donation indicated the possibility of a mild inflammation of the liver which may or may not have produced recognizable symptoms or signs of disease. Specifically, the test was positive for Anti-HCV, the antibody to Hepatitis C. The letter indicated that the studies were inconclusive but recommended that the Veteran be evaluated further. The Veteran was notified that he was not permitted to donate blood for an indeterminate period of time. A VA medical record dated December 1991 indicated that the Veteran had recently donated blood and a test showed inflammation of the liver (Hepatitis C). Upon evaluation it was noted that the Veteran had donated blood in November 1991 and was told that he may have hepatitis. It was also noted that he “had gotten a tattoo in April.” See e.g., December 1991 Medical Exam Certificate. A February 2000 letter states that the Veteran’s blood from an earlier donation was found to have a positive screening test for hepatitis C antibodies. A more specialized test was now available, called RIBA, and was performed on a stored sample of the Veteran’s blood and was positive. The results suggested that he had been infected with the Hepatitis C virus. He was deferred indefinitely from giving blood in the future. Included in records received from the Social Security Administration (SSA) is a March 2011 clinical note from a physician’s group (M.M.P.G.). Such states that the Veteran was diagnosed with chronic Hepatitis C in the 1990s. There was a suspicion that he contracted such back in the 1970s when he shared a needle with his brother who had Hepatitis C infection. At such time, the Veteran was apparently injecting himself with prescribed opioids. The Veteran also had a history of tattoos placed on his skin. It was noted that the 2008 treatment was unsuccessful in resolving the Veteran’s Hepatitis C. A June 2012 clinical note states that the Veteran’s hepatitis C treatment began in November 2011. A May 2013 letter states that the records of the blood bank (M.C.B.C.) indicated that the Veteran’s first blood donation occurred in 1986 and he donated 10 more times through January 1990. Each donation tested negative for disease markers mandated by FDA regulations current at such time. HCV testing was not available until after the January 1990 donation. The Veteran’s first donation after HCV antibody testing became available, in November 1991, was positive. However, no supplemental tests were available at such time. When the more specialized test, RIBA, became available, a stored sample from the Veteran’s November 1991 donation was tested and was positive. Such suggested true infection with Hepatitis C. A process was then conducted to trace patients who had received blood products from the Veteran’s earlier donations. Such provided no evidence that transfusion of the Veteran’s blood had caused Hepatitis C infection. During his July 2019 hearing, the Veteran testified that he often donated blood and, in fact, had received a pin award for having donated a gallon of blood. He explained that one benefit of donating blood included getting his blood tested for diseases. He testified that two days prior to his second period of active duty, his blood was tested and determined to be disease-free. He also indicated that the recipients of his blood had been checked, and none had had Hepatitis C. While deployed to the Southwest Asia theater of operations, the Veteran testified that he had received immunizations via air gun. The Veteran denied having any tattoos or blood transfusions while on active duty. He indicated that two days after he returned from Kuwait, he attempted to donate blood and was advised that he had 9A or 9B, which was what Hepatitis C was known as at the time. As a result of this testing, the Veteran was no longer able to give blood. The Veteran testified that he then sought treatment at the Saginaw VA Medical Center, where he was told that the test had been a false positive. Thus, he was not put on medication to treat hepatitis. He indicated, however, that he had been unable to obtain records of this treatment from the VA Medical Center. He indicated that approximately 15 years later, around 2009, he underwent a physical examination and was diagnosed as having Hepatitis C. The Veteran testified that between 1992 and 2009, he had worked as a machinist, had never had a blood transfer, and never gotten a tattoo. The only incident during such time was the Veteran having a piece of metal removed from his eye. The record shows that in an April 2020 VA examination, after a review of the Veteran’s VA e-folder, a VA physician concluded that “the claimed condition was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that the Veteran had no issues with Hepatitis C prior to military service and that there was an onset of the condition during service as documented in the Veteran’s service treatment records. It was noted that there “is evidence of current, chronic and continuous treatment and care.” The examiner reviewed the blood bank letter dated May 2013 and noted that the Veteran had a generous history of blood donations from 1986 through 1990; the examiner specifically noted negative hepatitis tests through that timeframe. The letter also noted that there was no transmission of Hepatitis C using the Veteran’s blood products. The examiner noted that Hepatitis C testing was not standard as it was not routinely available prior to 1991 and when they tested a frozen, prior blood sample, it indicated positive Hepatitis C antibodies, with a subsequent positive confirmatory test. The examiner concluded that this strongly suggested that the Veteran contracted Hepatitis C between January 1990 and November 1991. The VA examiner further explained that: “Hepatitis C is transmitted through exposure to body fluids, either through sexual contact or shared, contaminated needles or contaminated transfusion. It is virtually impossible to determine the Veteran's exact exposure, but the timeframe makes it at least [as] likely [a]s not that it occurred during a time of active duty which ended May 1991. The Veteran claims needle exposure during vaccination which is less likely than not to have occurred. Though a common air gun is used, needles are routinely changed for each individual. This is standard protocol and considered inappropriate if not done. In the absence of an epidemiologic grouping, it is unlikely that such contamination occurred. In the absence of information to the contrary, it is less likely than not that that was the source. This leaves sexual contact or shared needles during drug use as the more likely causes. Regardless of the method of transmission, it remains more likely than not that the Veteran contracted hepatitis C during service, due to the excellent follow-up regarding timing by the blood bank. According to the CDC, antibody seroconversion occurs within 8-11 weeks on average. As a Veteran would have had no reason for hepatitis testing between donations this narrows the window to a time closer to dates of active service.” See e.g., April 2020 Compensation and Pension Examination. After reviewing the evidence of record referenced above the Board concludes that the evidence is at least in relative equipoise as to whether the Veteran contracted Hepatitis C during active duty. The Board finds the April 2020 VA examiner’s opinion highly probative because it was based on a review of the claims file, consideration of the relevant medical history, and the opinion was accompanied by a detailed rationale. Although 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 Veteran'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 Attorney for the Board S.D. Hobbs, 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.