Citation Nr: 22017723 Decision Date: 03/26/22 Archive Date: 03/26/22 DOCKET NO. 18-05 108 DATE: March 26, 2022 ORDER Entitlement to service connection for hepatitis C is granted. Entitlement to service connection for cirrhosis of the liver, secondary to now service-connected hepatitis C, on a causation basis, is granted. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran's hepatitis C is related to his active duty service. 2. The evidence is at least evenly balanced as to whether the Veteran's cirrhosis of the liver was caused by his now service-connected hepatitis C. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, 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. 2. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for cirrhosis of the liver, secondary to now service-connected hepatitis C, on a causation basis, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1974 to January 1977. These matters come to the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that, among other things, denied the claim of service connection for hepatitis C. In March 2022, the Veteran testified during a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is not necessary given that the Board is granting the benefits sought in full. Service connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, air, or space service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Entitlement to service connection for hepatitis C The Veteran contends his hepatitis C was caused by an air gun injection he received at Fort Knox, Kentucky in service. In a September 2014 Statement in Support of Claim (VA Form 21-4138), the Veteran reported that each soldier was injected with the same, unsterilized air gun at the reception station. He noted that he did not have any tattoos, never shared drug needles, and was not sexually promiscuous. The Veteran's November 1976 separation examination was normal. In a December 2014 VA Form 21-4138, the Veteran indicated he never had a blood transfusion, did not engage in unprotected sex or intravenous drug use, was not exposed accidently to blood or unsterile needles, and did not undergo an organ transplant or hemodialysis. During a January 2015 VA examination, the Veteran reported that he found out he had hepatitis in the 1980s. He indicated that he decreased his alcohol use and stopped using crack cocaine and marijuana after he was told he was going to die. The Veteran reported during the examination that he was exposed to blood via air gun injectors, but was not involved in other risky behaviors, to include blood transfusions, tattoos, intravenous drugs, unprotected sex, or sharing of shaving razors. The VA examiner found that it was less likely than not that the Veteran's hepatitis C was caused by air gun vaccination during service. The VA examiner reasoned that while medical literature stated that transmission of hepatitis C by air gun injectors was a theoretical possibility, there was no objective evidence that use of air gun injections for immunizations transmitted hepatitis C. The VA examiner additionally noted that substance abuse treatment records, service treatment records, and early VA treatment records were not available for review at the time of the examination. In November 2017, a VA certified physician examiner noted that even though it was biologically plausible that hepatitis C might be related to air gun exposure, the Veteran's history of substance abuse could not be discounted or avoided, although his specific methods of substance use were unknown. Thus, while the Veteran had a diagnosis of hepatitis C, whether it was at least as likely as not incurred in or caused by vaccination with an air gun in service was completely unknown and submitting an opinion would be resorting to speculation. The VA certified physician examiner indicated that when subsequent substance use is brought into the picture, along with other possible factors, the exact causation becomes confusing and not possible to state. In March 2022, the Veteran submitted an article entitled "Military Jet Gun Injections Transmitted Hepatitis: A 22-Year Assessment of VA Claims." The article referenced an August 2004 article that found it was biologically plausible that air gun injections could cause hepatitis C and discussed the recent trend by the Board in more grants of service connection for hepatitis C due to in-service air gun injections. For the following reasons, entitlement to service connection for hepatitis C is warranted. A February 2017 private treatment record noted the Veteran's diagnosis of chronic hepatitis C. Thus, the Veteran meets the current disability requirement. The Veteran's contention that he was exposed to a non-sterile air gun injector in service is credible and consistent with his circumstances of service. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service records). Therefore, the Veteran meets the in-service disease or injury requirement. As indicated by the Court in Andrews v. McDonough, VA recognizes various risk factors for hepatitis C, such as blood transfusions, tattoos or body piercings, puncture with non-sterile needles, high-risk sexual activity, and air gun injections. 34 Vet. App. 216, 225 (2021) (citing VA Adjudication Manual M21-1 III.iv.4.H.2.e). The Veteran's consistent assertions throughout the appeal period that he experienced no risk factors for hepatitis C after separation from service are credible. The November 2017 VA opinion found that it would be speculation to determine whether the Veteran's hepatitis C was at least as likely as not related to air gun injections in service. Thus, the opinion is of no probative value. Fagan v. Shinseki, 573 F. 3d 1282, 1289 (Fed. Cir. 2009) (a medical "examiner's statement, which recites the inability to come to an opinion, provides neither positive nor negative support for service connection" for purposes of the benefit of the doubt rule). As for the Veteran's contention that he was exposed to the risk factor of air gun injections during service, the January 2015 VA examiner reasoned that while medical literature stated that transmission of hepatitis C by air gun injectors was a theoretical possibility, there was no objective evidence that use of air gun injections for immunizations transmitted hepatitis C. However, this opinion is inadequate as it rejected, contrary to VA policy, the possibility that air gun injections could lead to hepatitis C. See Andrews, 34 Vet. App. at 216. Moreover, the March 2022 article submitted by the Veteran that discussed the biological plausibility that air gun injections could cause hepatitis C is entitled to some probative weight. Sacks v. West, 11 Vet. App. 314, 317 (1998) (medical article and treatise evidence may suffice to establish nexus in instances where "standing alone, [it] discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion"). Thus, the evidence of record favoring risk factors in service for hepatitis C is at least evenly balanced to the evidence of risk factors after separation from service, requiring resolution of reasonable doubt in the Veteran's favor. To the extent that the grant of service connection for hepatitis C is based primarily on lay evidence, "nothing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself." Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). At this point, the Board could remand the claim of service connection for hepatitis C for a VA examination or opinion. However, a request for an opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Andrews, 34 Vet. App. at 225 ("Whatever the quality of the evidence surrounding the risk factors, it's at least sufficient to allow VA to discern whether service connection is warranted. It's been nine years since VA began assisting the veteran to develop his case. Despite formally recognizing the M21-1 risk factors, the Board relied on a medical examination that was not only inadequate for failing to address the in-service risk factors but failed to identify any viable non-service-related etiology for the veteran's condition"). For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran's hepatitis C is related to his active duty service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for hepatitis C is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Entitlement to service connection for cirrhosis of the liver While the Veteran has not filed a claim of service connection for cirrhosis of the liver, the Court has indicated that such claims can be adjudicated by the Board even in the absence of an explicit Agency of Original Jurisdiction (AOJ) adjudication. Bailey v. Wilkie, 33 Vet. App. 188, 203 (2021) (38 C.F.R. § 3.155(d)(2) requires that, when entitlement to secondary service connection is raised, a formal claim for secondary service connection need not be filed, rather, VA must consider those "complications" in connection with the claim on appeal). As discussed further below, the Board will consider a claim of service connection for cirrhosis of the liver secondary to now service-connected hepatitis C. In a February 2017 private treatment record, a private physician noted that the Veteran's hepatitis C caused his cirrhosis of his liver. For the following reasons, entitlement to service connection for cirrhosis of the liver, secondary to now service-connected hepatitis C, on a causation basis, is warranted. In February 2017, the private physician noted the Veteran's cirrhosis of the liver. Thus, the Veteran meets the current disability requirement. The February 2017 opinion finding that the Veteran's hepatitis C caused the Veteran's cirrhosis of the liver is entitled to some probative weight when reading the opinion as a whole and in the context of the evidence of record. Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). This is the only opinion of record that discusses the relationship between the Veteran's now service-connected hepatitis C and cirrhosis of the liver. For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran's cirrhosis of the liver was caused by his now service-connected hepatitis C. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for cirrhosis of the liver, secondary to now service-connected hepatitis C, on a causation basis, is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Styer, 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.