HEPATITIS B

Summary

The veteran served from July 1969 to September 1971 and again from December 1987 to July 1991. The veteran sought service connection for Hepatitis B and Hepatitis C. The Board denied service connection for Hepatitis B, finding that while the veteran had prior exposure, the infection had resolved and there was no evidence of an active infection or residuals during the period on appeal. For Hepatitis C, the Board found evidence of an active infection during the period on appeal. The veteran identified possible routes of transmission including exposure at landing zones in Vietnam, herbicide exposure, sexual encounters, or intravenous drug use. Service treatment records indicated a sexually transmitted infection during service in Vietnam, which the Board found sufficient to document in-service exposure to pathogens like Hepatitis C. A June 2020 VA medical opinion suggested the most likely cause was exchange of bodily fluids, but could not pinpoint the timing. The Board found reasonable doubt on the etiology of Hepatitis C, resolving this doubt in the veteran's favor due to the evidence being in approximate balance. The Board found a causal nexus between in-service sexual activities and the development of Hepatitis C, granting service connection. The Board acknowledged the veteran's admission of IV drug use but found the sexual encounters equally likely as the cause, which would not be willful misconduct.

Rationale

No evidence of active Hepatitis B infection during the period on appeal.; Prior infection resolved before June 2008.; No residuals or symptoms documented.

Full Decision Text

Citation Nr: 26003137
Decision Date: 03/09/26	Archive Date: 03/09/26

DOCKET NO. 16-41 120
DATE: March 9, 2026

ORDER

Service connection for Hepatitis B is denied.

Service connection for Hepatitis C is granted.

FINDINGS OF FACT

1. The evidence does not demonstrate that the Veteran had Hepatitis B at any time during or approximate to the pendency of the claim.

2. The Veteran's Hepatitis C is due to his military service. 

CONCLUSIONS OF LAW

1. The criteria for service connection for Hepatitis B are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.102, 3.303.

2. The criteria for entitlement to service connection for Hepatitis C are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service from July 1969 to September 1971 and from December 1987 to July 1991. This case comes before the Board of Veterans' Appeals (Board) from a September 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), hereinafter the Agency of Original Jurisdiction (AOJ). This matter was previously remanded in November 2018, June 2021, and January 2024. 

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. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

The threshold question in any claim seeking service connection is whether the veteran, in fact, has the disability for which service connection is sought. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In the absence of proof of a current disability, service connection is not warranted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

The Veteran contends that service connection is warranted for hepatitis, including Hepatitis B and C. 

The Board must first determine if the Veteran had diagnoses of Hepatitis B or C during the pendency of this appeal. The Veteran was initially notified that he had markers of viral hepatitis (Hepatitis B or Hepatitis C) in February 2000 when he attempted to donate blood. See February 2000 American Red Cross letter. 

An April 2001 treatment record notes that the Veteran tested positive for Hepatitis B in March 2001 and states that the infection had been resolved. 

A March 2007 treatment record notes that the Veteran is in a "likely chronic carrier state" for Hepatitis C. 

An April 2007 government treatment record notes positive tests for Hepatitis B and C and states: 

labs normal. hbv c ab pos and surface ab pos and ag neg --> previously exposed to HBV, but now immune to hit. [sic] Also HCV positive Ab, but PCR neg recently and was neg pcr in 2001 and normal LFTs, which implies exposure to hcv, but no infection or carrier state known at this time.

A June 2008 treatment records state:

This patient does NOT have active/chronic hepatitis B or C His positive HCV antibody with undetectable PCR in the past 5 years apart from each other indicate either a flase-positive [sic] antibody or more likely (given his prior h/o IDA) a prior infection that resolved (85% of patients exposed to HCV will develop chronic infection the other 15% will have spontaneous resolution i e their body will 'fight off' the infection). Likewise the absence of HBV surface antigen exclude chronic HBV infection, and the presence of both surface and core antibody indicates prior resolved infection The patient really requires no further follow-up or testing for either especially HBV If
 at this time.

A June 2008 treatment records state:

This patient does NOT have active/chronic hepatitis B or C His positive HCV antibody with undetectable PCR in the past 5 years apart from each other indicate either a flase-positive [sic] antibody or more likely (given his prior h/o IDA) a prior infection that resolved (85% of patients exposed to HCV will develop chronic infection the other 15% will have spontaneous resolution i e their body will 'fight off' the infection). Likewise the absence of HBV surface antigen exclude chronic HBV infection, and the presence of both surface and core antibody indicates prior resolved infection The patient really requires no further follow-up or testing for either especially HBV If he remains apprehensive about his HCV status in the future an HCV qualitative PCR should suffice to exclude presence of active infection but this should be performed no sooner that 5 years from his last testing No further HBV testing is necessary.

June 2020 and January 2022 VA medical examinations note diagnoses of Hepatitis B and C. 

July 2020 and June 2022 private medical records also document positive tests for Hepatitis B and C antibodies. 

A January 2022 VA medical opinion noted that the Veteran had a current diagnosis of Hepatitis C and serologic evidence of a prior Hepatis B infection. 

Given the foregoing, the evidence shows that the Veteran was exposed to Hepatitis B at some point prior to March 2001, but that this infection resolved prior to June 2008. As explained in the June 2008 treatment note, the Veteran does not have a chronic Hepatitis B infection - rather the absence of Hepatitis B surface antigens, combined with the presence of surface and core antibodies indicates a resolved infection. The record also does not document that the Veteran had any residuals or symptoms of Hepatitis B at any time during the period on appeal. See, e.g. June 2020 VA examination. 

Because there is no evidence that the Veteran had an active infection of Hepatitis B at any time during the period on appeal, service connection for Hepatitis B must be denied. See 38 C.F.R. §§ 3.303, 3.385; McClain v. Nicholson, 21 Vet. App. 319 (2007) (the requirement that a current disability be present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim... even though the disability resolves prior to the Secretary's adjudication of the claim."); Brammer v. Derwinski, 3 Vet. App. 223 (1995) (Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability).

However, the evidence does document that the Veteran did have an active Hepatitis C infection during the period on appeal. Therefore, the Board will move to the second element of service connection and determine if there is an in-service event that may be etiologically related to the Veteran's Hepatitis C. The Veteran has identified possible routes of transmission of the hepatitis virus, including flying into landing zones while deployed in the Republic of Vietnam, exposure to herbicide agents, or exposure to the virus during sexual encounters or intravenous drug use. See November 2014 statement, August 2016 statement. 

The Veteran's service treatment records note that the Veteran contracted a sexually transmitted infection while deployed in the Republic of Vietnam. See July 1970 treatment record; December 1986 treatment note. The Board finds that this infection is sufficient to document in-service exposure to other sexually transmitted pathogens, such as the Hepatitis C virus. Thus, the Board finds that there is an in-service event that may be the etiological source of the Veteran's Hepatitis C. 

Finally, the Board must determine if there is a nexus between the Veteran's Hepatitis C and his in-service sexual conduct and ensuing infection. A June 2020 VA medical opinion determined that the Veteran's Hepatitis C was not due to exposure to herbicide agents, rather stating that:

The results show that the veteran at some point was exposed to both Hepatitis B & C. He does not have clinically active Hepatitis and he has no symptoms or long lasting effects at present. In my opinion the most likely cause of these laboratory findings is an exchange of bodily fluids, either intimate relations or needle sharing. What cannot be proven at present is exactly when this took place. The Veteran left service in 1991 and the results where not noted until the year 2000. Without further evidence it is impossible to establish when the exposure may have taken place. 

After careful consideration of the evidence of record, including the Veteran's medical history, his lay statements about his activities in Vietnam, and the July 2020 medical opinion, the Board finds reasonable doubt has been raised
 some point was exposed to both Hepatitis B & C. He does not have clinically active Hepatitis and he has no symptoms or long lasting effects at present. In my opinion the most likely cause of these laboratory findings is an exchange of bodily fluids, either intimate relations or needle sharing. What cannot be proven at present is exactly when this took place. The Veteran left service in 1991 and the results where not noted until the year 2000. Without further evidence it is impossible to establish when the exposure may have taken place. 

After careful consideration of the evidence of record, including the Veteran's medical history, his lay statements about his activities in Vietnam, and the July 2020 medical opinion, the Board finds reasonable doubt has been raised on the question of the etiology of the Veteran's Hepatitis C. Reasonable doubt must be resolved in a claimant's favor. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (there need only be an "approximate", meaning nearly equal, balance of evidence for the claimant to prevail, not instead an exact or equal balance of evidence); see also Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (an "absolutely accurate" determination of etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology).

Given the foregoing, the Board finds that there is a causal nexus between the Veteran's in-service sexual activities and the ensuing development of a sexually transmitted illness and his current diagnosis of Hepatitis C.  Although the Board is aware that the Veteran has otherwise admitted to intravenous drug use during service and contraction of hepatitis C via the use of illicit drugs would otherwise be considered willful misconduct and a bar to benefits, see 38 C.F.R. § 3.301(d), as discussed above, it is equally as likely-as discussed by the June 2020 VA examiner-that the Veteran's sexual encounters during military service were the cause of his hepatitis C; such sexual encounters would not otherwise be willful misconduct and a bar to benefits.  See 38 C.F.R. § 3.301(c)(1).  Thus, in resolving such favorable doubt in the Veteran's favor, the Board finds that the criteria for direct service connection are met. 38 U.S.C. § 5107; 38 C.F.R. § 3.303(d). As a result, service connection under any other theory need not be addressed.

 

 

MARTIN B. PETERS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Stricker, Katherine M.

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.