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From: Posted by NOD
Category: -
Date: 09/15/08
Citation Nr: 0602593 Decision Date: 01/30/06 Archive Date: 02/07/06 DOCKET NO. 04-02 414 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for Hepatitis C. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. J. O'Mara, Associate Counsel INTRODUCTION The veteran had active military service from September 1972 to January 1974. This matter comes before the Board of Veterans' Appeals (Board) from a February 2003 rating decision by the Buffalo, New York Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the veteran service connection for Hepatitis C. In August 2005, the Board remanded the veteran's case to the RO for further development. The case was returned to the Board in December 2005. FINDING OF FACT It is at least as likely as not that the veteran developed Hepatitis C as a result of high risk activity during military service. CONCLUSION OF LAW Hepatitis C was incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.102, 3.159, 3.303 (2005). REASONS AND BASES FOR FINDING AND CONCLUSION The Board notes that there has been a significant change in the law during the pendency of this appeal, with enactment of the Veterans Claims Assistance Act of 2000 (VCAA), now codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002). This law redefines the obligations of VA to the appellant with respect to claims for VA benefits. As this decision allows a full grant of the desired benefit, no additional information or evidence is needed to substantiate the claim decided herein. Any failure by VA to comply with VCAA is harmless error. Factual Background Service medical records show that in January 1973, the veteran complained of crabs (pubic lice). In March 1973, he was diagnosed with gonorrhea. In May 1973, the veteran tested positive for gram-negative intracellular diplococci. A May 2001 VA outpatient medical record shows that the veteran had been exposed to risk factors for Hepatitis C, to include a history of intranasal cocaine use, and being in the military service during the Vietnam era. A June 2002 VA outpatient medical record shows that the veteran was diagnosed with Hepatitis C virus. When questioned about risk factors for Hepatitis C, the veteran responded that he had no blood transfusions before 1992, had no combat blood exposure, had injected drugs such as heroin and cocaine, had high risk tattoos, and did not have a history of occupational exposure, such as needle sticks. VA outpatient medical records dated until September 2003 show that the veteran received treatment for his Hepatitis C. In October 2002, the veteran submitted a claim for service connection for Hepatitis C, claimed as resulting from inoculation shots in service. In August 2005, the veteran underwent a VA examination, wherein he stated that his Hepatitis C was diagnosed in the year 2000. The veteran denied ever participating in any heroin or cocaine abuse by any method. He also denied any other form of substance abuse and stated that he never had any tattoos or body piercings. He did admit to high-risk sexual activity during service, but never received blood transfusions, organ transplants, or gamma globulin injections. Further, he never had any occupational or other exposure to human blood to unprotected skin. The diagnosis was chronic Hepatitis C with moderate portal fibrosis. The VA examiner opined that the veteran's Hepatitis C was not as least as likely as not related to any tattoos, as no tattoos were observed on the veteran's body and the veteran denied ever having a tattoo. The VA examiner also opined that it was at least as likely as not that Hepatitis C was not transmitted by vaccinations by air gun injections in service as air gun injections are not considered to be a credible route of Hepatitis C transmission. Further, the VA examiner stated that if it could be proven that the veteran participated in parenteral substance abuse or cocaine abuse, then this could be assumed to be another route of Hepatitis C infection. However, the VA examiner did opine that it was at least as likely as not that Hepatitis C was transmitted by high-risk sexual activity during the veteran's military service. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2005). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as opposed to merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2005). Service connection may be granted for any disease initially 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) (2005). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2005). After review of the evidence of record, the Board finds that service connection for the veteran's Hepatitis C is warranted. As such, the August 2005 VA examiner noted that it was at least as likely as not that the veteran's Hepatitis C was caused by his high-risk sexual activity in service. Review of the service medical records shows that the veteran was treated for sexually transmitted diseases while in service. Weighing the evidence in favor of the veteran's claim, the Board finds that the sexually transmitted diseases in service are evidence of high-risk sexual activity in service. Therefore, as the veteran's Hepatitis C is shown to be related to his in-service high-risk sexual activity by competent medical evidence, service connection for the veteran's Hepatitis C is warranted. ORDER Entitlement to service connection for Hepatitis C is granted. ____________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Pretty cool . We ought to call this the "Chicks in Cholon" defense . The Cholon District in Saigon, for the uninitiated, was where all the prostitutes were. They all had VD cards saying they were clean as a whistle,too. A win is a win, no matter how ugly it is.
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