Citation Nr: 1104734	
Decision Date: 02/07/11    Archive Date: 02/14/11

DOCKET NO.  06-30 890	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, 
Florida


THE ISSUE

Entitlement to service connection for hepatitis C.

(The issue of entitlement to an initial compensable rating for 
bilateral hearing loss is addressed in a separate decision.)


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Tiffany Sykes, Associate Counsel




INTRODUCTION

The Veteran served on active duty from January 1968 to November 
1971.

This appeal to the Board of Veterans' Appeals (Board) is from a 
November 2005 rating decision of the Department of Veterans 
Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.


FINDING OF FACT

There is no probative (competent and credible) evidence 
attributing the Veteran's hepatitis C infection to his military 
service - and in particular to contamination of his blood from 
an inoculation gun using jet injectors during induction, basic 
training or during treatment at a U.S. Naval hospital.


CONCLUSION OF LAW

The Veteran's hepatitis C was not incurred in or aggravated by 
his military service.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 
C.F.R. §§ 3.102, 3.303 (2010).


REASONS AND BASES FOR FINDING AND CONCLUSION

In the interest of clarity, the Board will initially discuss 
whether this claim has been properly developed for appellate 
review.  The Board will then address this claim on its merits, 
providing relevant VA case law, regulations and statutory 
provisions, the relevant factual background, and an analysis of 
the evidence.



I.  The Duties to Notify and Assist

As provided by the Veterans Claims Assistance Act (VCAA), VA has 
duties to notify and assist a claimant in substantiating a claim 
for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 
5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 
3.326(a) (2010).

Proper notice from VA must inform the claimant of any information 
and medical or lay evidence not of record (1) that is necessary 
to substantiate the claim; (2) that VA will obtain and assist the 
claimant in obtaining; and (3) that the claimant is expected to 
provide.  See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. 
Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 
Vet. App. 370, 373-74 (2002).  

These VCAA notice requirements apply to all five elements of a 
service-connection claim:  (1) Veteran status; (2) existence of a 
disability; (3) a connection between the Veteran's service and 
the disability; (4) degree of disability; and (5) effective date 
of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. 
App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 
1311 (2007).  Further, this notice must include information that 
a downstream disability rating and an effective date for the 
award of benefits will be assigned if service connection is 
granted.  Id., at 486.  

Ideally, VCAA notice should be provided prior to an initial 
unfavorable decision on a claim by the RO.  Pelegrini v. 
Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  If, however, 
for whatever reason it was not, or the notice provided was 
inadequate, this timing error can be effectively "cured" by 
providing any necessary VCAA notice and then going back and 
readjudicating the claim - such as in a statement of the case 
(SOC) or supplemental SOC (SSOC), such that the intended purpose 
of the notice is not frustrated and the Veteran is given an 
opportunity to participate effectively in the adjudication of the 
claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 
2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 
(2006).

In Shinseki v. Sanders, 129 S. Ct. 1696 (2009), the United States 
Supreme Court made clear that a reviewing court, in considering 
the rule of prejudicial error, is precluded from applying a 
mandatory presumption of prejudice rather than assessing whether, 
based on the facts of each case, the error was outcome 
determinative.  In Sanders, the Supreme Court rejected the lower 
Federal Circuit's framework (see Sanders v. Nicholson, 487 F. 3d 
881, 889 (Fed. Cir. 2007)) that all VA notice errors are 
presumptively prejudicial, in part, because it was 
"complex, rigid, and mandatory."  Id., at 1704.  The Supreme 
Court rejected the Federal Circuit's analysis because it imposed 
an unreasonable evidentiary burden on VA to rebut the presumption 
and because it required VA to demonstrate why the error was 
harmless, rather than requiring the appellant - as the pleading 
party, to show the error was harmful.  Id., at 1705-06.  The 
Supreme Court stated that it had "warned against courts' 
determining whether an error is harmless through the use of 
mandatory presumptions and rigid rules rather than case-specific 
application of judgment, based upon examination of the record."  
Id., at 1704-05.  Thus, it is clear from the Supreme Court's 
analysis that, while the Veterans Court could conclude generally 
that a specific type of error is more likely to prejudice an 
appellant, the error must nonetheless be examined in the context 
of the facts of the particular case.  Id.

The Veterans Court held in Vazquez-Flores v. Peake, 22 Vet. App. 
37, 48 (2008), since overturned on other grounds in Vazquez-
Flores v. Shinseki, 2009 WL 2835434 (Fed.Cir.), that prejudicial 
deficiencies in the timing or content of a VCAA notice can be 
cured by showing the essential fairness of the adjudication will 
not be affected because:  (1) the defect was cured by actual 
knowledge on the part of the claimant ("Actual knowledge is 
established by statements or actions by the claimant or the 
claimant's representative that demonstrates an awareness of what 
was necessary to substantiate his or her claim.") (citing Dalton 
v. Nicholson, 21 Vet. App. 23, 30-31 (2007)); (2) that a 
reasonable person could be expected to understand from the notice 
what was needed; or (3) that a benefit could not have been 
awarded as a matter of law.  Sanders, 487 F. 3d at 889.  
Additionally, consideration also should be given to "whether the 
post-adjudicatory notice and opportunity to develop the case that 
is provided during the extensive administrative appellate 
proceedings leading to the final Board decision and final Agency 
adjudication of the claim ... served to render any pre-
adjudicatory section 5103(a) notice error non-prejudicial." 
 Vazquez-Flores, 22 Vet. App. at 46.  See also Overton v. 
Nicholson, 20 Vet. App. 427, 435 (2006) (finding the Board had 
erred by relying on various post-decisional documents for 
concluding adequate 38 U.S.C.A. § 5103(a) notice had been 
provided to the appellant, the Veterans Court nonetheless 
determined the evidence established the Veteran was afforded a 
meaningful opportunity to participate effectively in the 
adjudication of his claims, and therefore found the error 
harmless).  

In this case, a letter satisfying the notice requirements of 
38 C.F.R. § 3.159(b)(1) was sent to the Veteran in July 2005, so 
before initially adjudicating his claim, meaning in the preferred 
sequence.  The letter informed him of the evidence required to 
substantiate his claim and of his and VA's respective 
responsibilities in obtaining this supporting evidence.  Since 
the Board will conclude below that the preponderance of the 
evidence is against his underlying claim for service connection, 
the downstream disability rating and effective date elements of 
his claim are moot.  So not receiving notice concerning these 
downstream elements of this claim is ultimately inconsequential 
and, therefore, at most nonprejudicial, i.e., harmless error.  38 
C.F.R. § 20.1102.  Further, a January 2007 letter pertaining to 
his claim for an initial compensable rating for his bilateral 
hearing loss, also on appeal before the Board but addressed in a 
separate Board decision, did contain Dingess notice - although 
not required concerning that other claim because it is for a 
higher initial rating following the granting of service 
connection.  Goodwin v. Peake, 22 Vet. App. 128 (2008).

VA also fulfilled its duty to assist the Veteran by obtaining all 
relevant evidence in support of his claim that is obtainable.  
38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also Bernard v. 
Brown, 4 Vet. App. 384 (1993).  The RO obtained his 
service treatment records (STRs), VA treatment records, Social 
Security Administration (SSA) records, and he submitted personal 
statements in support of his claim.  In addition, the RO arranged 
for a VA compensation examination in January 2007 to determine 
whether his hepatitis C is attributable to infection during his 
military service.  McLendon v. Nicholson, 20 Vet. App. 79 (2006), 
38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4).

Therefore, the Board is satisfied that VA has provided all 
assistance required by the VCAA and that appellate review may 
proceed without prejudicing him.

II.  Entitlement to Service Connection for Hepatitis C

The Veteran contends he contracted hepatitis C as a result of his 
military service.  He says there are no other possible 
explanations for him contracting this disease than contamination 
of his blood from vaccinations from an inoculation gun 
using jet injectors that were administered upon his entrance into 
the military, during basic training, or during his treatment at a 
U.S. Naval hospital following an altercation in service.  So he 
discounts any notion that there are other reasons for this 
infection.

Service connection may be granted if it is shown the Veteran 
suffers from a disability resulting from an injury sustained or a 
disease contracted in the line of duty, or for aggravation during 
service of a pre-existing condition beyond its 
natural progression.  38 U.S.C.A. §§ 1110, 1153; 38 C.F.R. 
§§ 3.303, 3.306.  Service connection may be demonstrated either 
by showing direct service incurrence or aggravation or by using 
applicable presumptions, if available.  Combee v. Brown, 34 F.3d 
1039, 1043 (Fed. Cir. 1994).

To establish service connection, there must be:  (1) a medical 
diagnosis of a current disability; (2) medical or, in some cases, 
lay evidence of in-service occurrence or aggravation of a disease 
or injury; and (3) medical evidence of a nexus or link between 
the in-service injury or disease and the current disability.  
Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); 
Hansen v. Principi, 16 Vet. App. 110 (2002).

The determination as to whether these requirements are met is 
based on an analysis of all the evidence of record and the 
evaluation of its credibility and probative value.  Baldwin v. 
West, 13 Vet. App. 1 (1999).



A disorder also may be service connected if the evidence of 
record reveals the Veteran currently has a disorder that was 
chronic in service or was seen in service with continuity of 
symptomatology demonstrated after service.  38 C.F.R. § 3.303(b); 
Savage v. Gober, 10 Vet. App. 488, 494-97 (1997).  In order to 
establish a showing of chronic disease in service, or within a 
presumptive period per § 3.307, a combination of manifestations 
sufficient to identify the disease entity, and sufficient 
observation to establish chronicity at the time, as distinguished 
from merely isolated findings or a diagnosis including the word 
"chronic," is required.  38 C.F.R. § 3.303(b).  Subsequent 
manifestations of the same chronic disease at any later date, 
however remote, are service connected, unless clearly 
attributable to intercurrent causes.  Id.  Establishing 
continuity of symptomatology under 38 C.F.R. § 3.303(b) is an 
alternative method of satisfying the second and third Shedden 
requirements.  See also Clyburn v. West, 12 Vet. App. 296, 302 
(1999).

A layperson is generally incapable of opining on matters 
requiring medical knowledge.  Routen v. Brown, 10 Vet. App. 183, 
186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. 
Cir. 1998), cert. denied, 119 S. Ct. 404 (1998).  However, lay 
evidence may be competent and sufficient to establish a diagnosis 
of a condition when (1) a layperson is competent to identify the 
medical condition, (e.g., a broken leg), (2) the layperson is 
reporting a contemporaneous medical diagnosis, or (3) lay 
testimony describing symptoms at the time supports a later 
diagnosis by a medical professional.  Jandreau v. Nicholson, 492 
F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 
1313 (Fed. Cir. 2009).

In essence, lay testimony is competent when it regards the 
readily observable features or symptoms of injury or illness and 
"may provide sufficient support for a claim of service 
connection."  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  
See also 38 C.F.R. § 3.159(a)(2).  A determination as to whether 
medical evidence is needed to demonstrate that a Veteran 
presently has the same condition he or she had in service or 
during a presumption period, or whether lay evidence will 
suffice, depends on the nature of the Veteran's present condition 
(e.g., whether the 


Veteran's present condition is of a type that requires medical 
expertise to identify it as the same condition as that in service 
or during a presumption period, or whether it can be so 
identified by lay observation).  Savage, 10 Vet. App. 488, 494-
97.  See also Barr v. Nicholson, 21 Vet. App. 303 (2007).

In determining whether service connection is warranted for a 
disability, VA is responsible for determining whether the 
evidence supports the claim or is in relative equipoise (i.e., 
about evenly balanced for and against the claim), with the 
Veteran prevailing in either event.  Conversely, the claim will 
be denied if the preponderance of the evidence is against the 
claim.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; 
Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Here, there is no disputing the Veteran meets the first and 
indeed perhaps most fundamental requirement for any service-
connection claim, which is have proof he has the condition he is 
alleging, hepatitis C.  Boyer v. West, 210 F.3d 1351, 1353 
(Fed. Cir. 2000).  In the absence of proof of this claimed 
disability, there can be no valid claim.  Brammer v. Derwinski, 
3 Vet. App. 223, 225 (1992) (indicating service connection 
presupposes a current diagnosis of the condition claimed).  
The Veteran's VA treatment records reflect he was first diagnosed 
with hepatitis C following blood testing in October 2004.  A 
letter from his VA treating physician dated in June 2005, and the 
January 2007 VA compensation examiner both confirmed this 
diagnosis of hepatitis C.  See Boyer, 210 F. 3d. at 1353.  
See also Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 
1328, 1332 (1997) (holding that VA compensation only may be 
awarded to an applicant who has disability existing on the date 
of application, not for past disability); McClain v. Nicholson, 
21 Vet. App. 319, 321 (2007) (further clarifying that this 
requirement of current disability is satisfied when the claimant 
has the disability at the time the claim for VA disability 
compensation is filed or during the pendency of the claim and 
that a claimant may be granted service connection even though the 
disability resolves prior to VA's adjudication of the claim).



Consequently, the determinative issue is whether the Veteran's 
hepatitis C is somehow attributable to his military service - 
and in particular to the inoculations or subsequent treatment 
during service, which he cites as the source of this infection.  
See Watson v. Brown, 4 Vet. App. 309, 314 (1993) 
("A determination of service connection requires a finding of the 
existence of a current disability and a determination of a 
relationship between that disability and an injury or disease 
incurred in service.").  See, too, Maggitt v. West, 202 F.3d 
1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 
(Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); 
and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998).  
Unfortunately, there is simply no competent and credible evidence 
of record establishing this required cause-and-effect 
correlation.

The risk factors for hepatitis C include intravenous (IV) drug 
use, blood transfusions before 1992, hemodialysis, intranasal 
cocaine, high-risk sexual activity, accidental exposure while a 
health care worker, and various kinds of percutaneous exposure 
such as tattoos, body piercing, acupuncture with non-sterile 
needles, shared toothbrushes or razor blades.  VBA letter 211B 
(98-110) (November 30, 1998).  Veterans also may have been 
exposed to the Hepatitis C Virus (HCV) during the course of their 
duties as a military corpsman, medical worker, or as a 
consequence of being a combat Veteran.  See VBA Fast Letter 04-13 
(June 29, 2004).

The Veteran claims to have completed and returned a development 
letter sent by the RO in July 2005 entitled "Risk Factors for 
Hepatitis C Questionnaire."  However, there is a blank 
questionnaire in the claims file, attached to that July 2005 
letter sent by the RO.  In lieu of providing the requested 
responses to this questionnaire, the Veteran has indicated he was 
not exposed to hepatitis C through exposure to "tattoos, homo-
sexual intercourse, needle stick in a medical environment, 
intravenous drug use or transfusions prior to 1992."  See his VA 
Form 9, Substantive Appeal, dated in September 2006.  He 
therefore believes he must have contracted this disease, instead, 
while receiving the vaccinations at entrance into the military, 
during basic training, or during medical treatment at a U.S. 
Naval hospital.

The Veteran essentially is trying to etiologically link his 
Hepatitis C infection to his military service by process of 
elimination, rather than by also having evidence affirmatively 
establishing this claimed correlation.  The Board is mindful of 
the argument he has presented, including in his statements 
submitted in support of his claim, specifically his VA Form 9 
denying any exposure to the above-mentioned risk factors, as to 
why his hepatitis C is related to his military service, if for no 
other reason, by logical deduction.  But he in effect is trying 
to legitimize this alleged correlation by merely theorizing there 
is no other possible cause, without instead offering any 
supporting evidence positively establishing this required 
linkage.  

Regarding in-service incurrence, the Veteran's STRs reflect his 
treatment for superficial lacerations above his right eye in July 
1969, which he received while working.  Additionally, he was 
treated for lacerations on his lower lip in January 1970, 
necessitating sutures.  However, there is no indication he was in 
contact with other bodily fluids during either of those 
treatments or other indications he would have been exposed to 
hepatitis C during or as a result of them.  Further, his October 
1971 separation examination only noted "marks and scars."  
So even if they were residuals, there was no indication of 
associated symptoms (jaundice, fatigue, etc.) as might possibly 
have been associated with hepatitis.  Moreover, there is an 
accepted latency for the eventual development of this disease.

Recognizing this, perhaps most significant is that there simply 
is no medical nexus evidence of record etiologically linking the 
Veteran's hepatitis C infection to his military service, and 
specifically to one of the risk factors he is alleging.  While 
the record contains VA treatment records dating from October 2003 
and continuing in a sporadic nature to October 2008, there is no 
indication in these records as to a potential in-service cause of 
his hepatitis C infection, either in his self-reported medical 
history or otherwise, such as in the way of affirmation of this 
history by an evaluating or treating health care worker.  These 
records merely contain diagnostic testing in the form of lab 
blood work and treatment for his associated symptoms.  Further, 
the June 2005 letter submitted by his VA treating physician only 
confirms the existence of this disease and its associated 
symptoms.  This treating physician does not offer an opinion as 
to the etiology of the Veteran's hepatitis C, and specifically in 
terms of whether it dates back to his military service.  

The Veteran also had a VA compensation examination in January 
2007.  That examiner reviewed the Veteran's claims file and 
medical records for the pertinent history.  During the self-
reported history, the Veteran indicated he was assaulted in 1970, 
suffered blood loss, and was hospitalized.  He also stated he 
donated blood following service and continued to donate after 
1992, when screening for hepatitis C began.  He continued to deny 
any high-risk behavior commonly associated with hepatitis C.  
However, after confirming the hepatitis C infection, the examiner 
stated he could not render an opinion as to the etiology of the 
Veteran's disease without resort to mere speculation.  

A statement that, for all intents and purposes, is inconclusive 
as to the origin of a disorder cannot be employed as suggestive 
of a linkage between the disorder and the Veteran's military 
service.  See, e.g., Warren v. Brown, 6 Vet. App. 4, 6 (1993); 
Sklar v. Brown, 5 Vet. App. 104, 145-6 (1993).  Opinions like 
this, which can only make this necessary connection between the 
current disorder and the Veteran's military service by resorting 
to mere speculation, amount to "nonevidence," neither for nor 
against the claim, because service connection may not be based on 
speculation or remote possibility.  See generally Bloom v. West, 
12 Vet. App. 185 (1999) (a medical opinion based on speculation, 
without supporting clinical data or other rationale, does not 
provide the required degree of medical certainty).  See also 38 
C.F.R. § 3.102 (when considering application of the benefit-of-
the-doubt doctrine, reasonable doubt is one within the range of 
probability, as distinguished from pure speculation or remote 
possibility).

A more recent precedent case, however, admonished the Board for 
relying on medical opinions that also were unable to establish 
this required linkage, without resorting to mere speculation, as 
cause for denying the Veteran's claims.  See Jones v. Shinseki, 
23 Vet. App. 382 (2010).  In Jones, the Court noted it was 
unclear whether the examiners were unable to provide this 
requested definitive medical comment on etiology because they 
actually were unable to since the limits of medical knowledge had 
been exhausted or, instead, for example, needed further 
information to assist in making this determination (e.g., 
additional records and/or diagnostic studies) or other procurable 
and assembled data.

The Court in Jones acknowledged there are instances where a 
definitive opinion cannot be provided because required 
information is missing or can no longer be obtained or current 
medical knowledge yields multiple possible etiologies with none 
more likely than not the cause of the claimed disability.  See 
Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (noting the Board 
need not obtain further medical evidence where the medical 
evidence "indicates that determining the cause is speculative").  
The Court in Jones held, however, that in order to rely upon a 
statement that an opinion cannot be provided without resort to 
mere speculation, it must be clear that the procurable and 
assembled data was fully considered and the basis for the opinion 
must be provided by the examiner or apparent upon a review of the 
record.

Here, regarding whether the Veteran's hepatitis C began while he 
was in the military, this January 2007 VA compensation examiner 
pointed out the Veteran left the military in 1971 and that 
routine hepatitis C screening had not yet begun.  Therefore, 30 
years passed after his separation from service before his initial 
diagnosis.  Further, confirmation that inoculations were 
performed by using jet injectors was not in his STRs, which is 
another reason he believes he contracted this disease.  This 
examiner did concede that latent hepatitis C may be asymptomatic 
for years between onset and diagnosis.  However, he added, there 
is no way to confirm that issue in this Veteran because there is 
not enough evidence available.  Therefore, although this VA 
compensation examiner readily acknowledged that he was unable to 
determine the etiology of the Veteran's hepatitis C, without 
resorting to mere speculation, he left little if anything in the 
way of opportunity for more definitive comment on etiology even 
if given the opportunity to provide a supplemental opinion.  And, 
indeed, in some ways he already had discredited the notion that 
it is attributable to the Veteran's military service (as least to 
the inoculations claimed because there was not confirmation of 
them as a possible source of infection).  This VA compensation 
examiner could not determine what factor, inside or outside of 
military service, is the reason the Veteran now has hepatitis C 
(again, without speculating).  However, this is not also 
tantamount to concluding he could not disassociate the hepatitis 
C from the Veteran's military service.  He simply could not 
comment definitively one way or the other.

An SSA decision dated in November 2007 found the Veteran disabled 
due to his hepatitis C.  But whether the Veteran is disabled by 
his hepatitis C is not determinative of his VA claim (this would 
only become relevant if the condition was service connected and 
therefore needed to be rated).  Rather, the more germane concern 
in this appeal is whether the condition is traceable back to his 
military service.  And, in any event, the Board is not bound by 
the findings of disability and/or unemployability made by other 
agencies, including SSA.  See Collier v. Derwinski, 1 Vet. App. 
413, 417 (1991).  Moreover, the Veteran indicated his date of 
onset for the hepatitis C and associated symptoms was not until 
October 2004, so admittedly not until long after his military 
service had ended.  So even, again, recognizing the accepted 
latency of this disease, this SSA determination may be considered 
as probative evidence against a finding of service connection 
because the onset of the disease is far removed from service, 
but also because it was not related back to service.  Golz v. 
Shinseki, 590 F.3d. 1317 (Fed. Cir. 2010).

The Veteran has not provided any countervailing evidence or 
medical opinion that may be considered probative of this 
determinative issue of causation.  The Federal Circuit Court has 
recognized the Board's "authority to discount the weight and 
probity of evidence in light of its own inherent characteristics 
and its relationship to other items of evidence."  Madden v. 
Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997).  The Veteran was not 
first diagnosed with hepatitis C until October 2004, more than 30 
years after his military service had ended.  So this goes against 
the notion that he had been experiencing any incipient symptoms 
(like fatigue, weakness, aches and difficulty with concentration, 
as stated in June 2005 letter from his VA treating physician) 
during the many intervening years after his service had ended and 
he learned of his infection.  In other words, he has failed to 
establish continuity of symptomatology following service.  
Moreover, even recognizing the accepted latency period that 
sometimes occurs between infection and eventual discovery of the 
disease, and the fact that he is competent - even as a layman - 
to report having experienced potentially relevant symptoms prior 
to the discovery of his infection, does not make his 
unsubstantiated lay opinion regarding the etiology of his 
hepatitis C and its purported relationship to his military 
service more probative than the evidence to the contrary, 
particularly the lack of evidence showing any symptomatology 
associated with hepatitis C.  See Davidson v. Shinseki, 581 F.3d 
1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1373, 1377 
(Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303 (2007).  
See also 38 C.F.R. § 3.159(a)(1) and (2) and 
Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) 
(addressing lay evidence as potentially competent to support 
presence of disability, both during service and since, even where 
not corroborated by contemporaneous medical evidence such as 
treatment records, but also indicating the Board retains the 
discretion to make credibility determinations and otherwise weigh 
the evidence submitted, including lay evidence).  Here, 
there simply is no medical evidence supporting his claim that his 
hepatitis C is related to his military service, as opposed to 
other possible unrelated factors, and this is ultimately a 
medical, not lay, determination since hepatitis C is not the type 
of condition that is readily capable of lay diagnosis and comment 
on etiology.  Jones v. Brown, 7 Vet. App. 134, 137 (1994).  See 
also Heuer v. Brown, 7 Vet. App. 379, 384 (1995) (citing 
Grottveit v. Brown, 5 Vet. App. 91, 93 (1993)).

Accordingly, the Board finds that the preponderance of the 
evidence is against the Veteran's claim for service connection 
for hepatitis C.  So there is no reasonable doubt to resolve in 
his favor, and this claim must be denied.  38 U.S.C.A. § 5107(b); 
38 C.F.R. § 3.102.  


ORDER

Service connection for hepatitis C is denied.  



____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs