Andrews: How to Gain Service Connection for Hepatitis C and the Benefit of the Doubt

Andrews v. McDonough, Opinion Number 19-0352, was decided June 22, 2021 and involves what triggers the benefit of the doubt.

This is a Hepatitis C case where the veteran sought service connection and argued to the Court reversal is the proper remedy because the evidence of record met the benefit of the doubt standard and the Secretary argued reversal would require the Court to act as a fact finder in the first instance and instead urged a remand.  Ultimately, the Court did reverse but on narrow grounds.  Id. at *1-2.

The veteran said his Hepatitis C came from various in-service risk factors including: air gun immunization, dental work and a STD.  In 2010 a VA examiner said air guns were not a risk factor as to Hepatitis C and this resulted in a denial.  This ultimately led to a Board remand that ordered a new examination to discuss sexual activity.  This led to a new negative examination which discussed dental work, STD, and air gun injections and ultimately a denial of service connection.  Id. at *3. 

The Court began by acknowledging: “while the Court's authority to reverse Board findings is firmly established, it's not entirely clear what this means in practice.”  Id. at *4.  However, “it has proven difficult to identify absolute markers as to when reversal is the appropriate remedy rather than remand for further development or adjudication.”  Id. at *5.

The Court noted existing case law  “makes clear that reversal is appropriate provided that it doesn't require the Court to exceed its scope of review by engaging in improper fact finding. On a practical level, however, the line often proves blurry between judicial review—that is, reviewing, under the clearly erroneous standard, discrete findings of the Board in light of the entire factual record—and first-instance fact finding.”  Id. at *7. 

The Court explained the difficulty is that 1) “evidentiary rulings are not zero-sum affairs but often involve a complex interplay between several different factors”, 2) the Court’s “ability to evaluate evidence can be complicated when there isn't a statute or regulation spelling out precise criteria or relevant factors that bear on a given question. Often the relevant adjudicatory standard is set out in an agency manual such as the M21-1, whose provisions are mandatory for adjudicators at VA regional offices, but whose relationship with the Board and this Court is less than straightforward.” Id. at *8.

The Court then noted the Board had incorporated the M21-1 into its prior remand of the claim and stated it recognized various risk factors for hepatitis C and instructs to resolve reasonable doubt in favor of the veteran.  Id. at *9-10.  The Court noted it could not independently turn to the M21-1 to inform its decision, but could int his case because the Board’s remand order adopted its guidance.  Id. at *10.  It effectively noted that once the Board relied on the M21-1 for a remand, the veteran had an interest in the M21-1 due to his reliance on it to develop his case (even if the reliance is more fiction than fact).  

The Court then stated:

As for in-service risk factors, the Board did not dispute their occurrence; it merely discounted the likelihood that the veteran's hepatitis C originated from some of them. But the medical evidence the Board relied on to do so has been conceded as inadequate, since the opinions either failed to understand the theory of service connection at issue or rejected—contrary to VA policy—the possibility that certain risk factors could lead to hepatitis C. Put simply, no matter how diminished the Board thought the likelihood that Mr. Andrews's in-service risk factors caused his hepatitis C, this must be weighed against the absence of extra-service risk factors.

 

At the very least, in this case "the evidence favoring risk factor(s) in service is equal to the evidence favoring risk factor(s) before or after service," requiring resolution of reasonable doubt in the veteran's favor. M21-1, Pt. III, sbpt. iv, ch. 4, sec. H.2.e. Reasonable doubt exists when there is "an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility." 38 C.F.R. § 3.102 (2020). To the extent that the Board found the risk factor evidence in favor of the claim didn't meet this standard, this finding was clearly erroneous. Nor, based on this record, can we see any point in remanding for additional development on the question of nexus.

Id. at *11.

The Court then granted service connection and explained:

VA obtained two medical examinations and the veteran submitted numerous private treatment records and lay statements. Yet despite all this development, VA has not suggested, much less identified, the existence of preor postservice risk factors necessary to deny service connection under the standard outlined in the M21-1. Even if another examiner once more discredits the notion that Mr. Andrews's in-service risk factors led to his hepatitis C, that still puts the likelihood of an in-service etiology at least on par with the likelihood of an extra-service etiology. In short, it's not clear what remedial value would lie in requiring VA to obtain a new examination, since that examiner would have no warrant to reject the fact that no non-service risk factors exist. Regardless of the relative probative value of the evidence supporting Mr. Andrews in-service risk factors, this much is clear: it at least matches the zero evidence suggestive of pre- or postservice risk factors. Which brings us to the final point: 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 Mr. Andrews 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 nonservice-related etiology for the veteran's condition. Based on the circumstances of this case—the adoption of the M21-1 standard, the conceded presence of in-service risk factors, the absence of any non-service risk factors, and the lack of any reasonable basis to believe that additional development could alter the approximate balance of evidence—the Court reverses and orders VA to award service connection to Mr. Andrews for hepatitis C.

This case is a primer on how to win an Hepatitis C case, but also is interesting in how the court really resisted reversal and only did so after saying the VA had relied on the helpful M21-1 and thus the helpful language from the M21-1 could be imported into is decision.  While the case will be helpful in all Hepatitis C cases, it seems to do little (and perhaps even harm) in the larger battle to get the Court to grant more cases themselves.

Decision by Judge Toth and joined in by Judge Allen and Falvey.

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