Citation Nr: 1429706 Decision Date: 07/01/14 Archive Date: 07/10/14 DOCKET NO. 12-00 107 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Anchorage, Alaska THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty with the Navy from December 1988 to December 1992 and with the Army from August 2007 to May 2008. The Veteran also served with the Army National Guard. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Anchorage, Alaska. In July 2012, the Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is of record. FINDING OF FACT Hepatitis C was demonstrated years after service and is not etiologically related to a disease or injury in service. CONCLUSION OF LAW Hepatitis C was not incurred in or aggravated by active duty service. 38 U.S.C.A. §§ 1110, 1131(West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that service connection is warranted for hepatitis C as it was incurred due to inoculations she received during her first period of active military service. She testified during the July 2012 hearing that she had no risk factors for hepatitis C, but was inoculated during basic training in January 1989 with an air gun injector. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran 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"-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007). When a chronic disease is shown in service sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). 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. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)(holding that the term "chronic disease in 38 C.F.R. § 3.309(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The record establishes the presence of chronic hepatitis C. Hepatitis C was diagnosed based on laboratory testing performed at the Anchorage VA Medical Center (VAMC) in April 2002. A December 2010 VA ultrasound did not indicate any acute process of the liver, but the disease was also diagnosed upon VA examination in October 2011. VA treatment records also do not document any specific treatment for hepatitis C, but the presence of the infection is clearly established. The Board also finds that an in-service injury is established. Service records are negative for any complaints, treatment, or findings of hepatitis C; however, the Veteran reports that she received air gun inoculations during basic training in 1989. The Veteran's service immunization record documents that she received vaccinations in January and February 1989. While the process by which the Veteran was vaccinated is not indicated, the Veteran is competent to report that air gun injectors were used. The Board therefore finds that an in-service injury is demonstrated. Although the first two elements of service connection are established in this case, the Board finds that the weight of the evidence is against the presence of a nexus between the Veteran's hepatitis C and active duty. Service records do not support the claim; as noted above, they are completely negative for findings related to hepatitis C. The Veteran's inoculations in 1989 are documented, but subsequent blood laboratory testing throughout the first period of service do not indicate hepatitis C. In a May 2011 statement, the Veteran reported that she experienced symptoms associated with hepatitis C soon after her inoculations in 1989. While service records document occasional complaints of malaise, dizziness, and nausea dating from January 1989, these symptoms were clearly associated with various acute upper respiratory infections and a reaction to an influenza shot in November 1992. Physical examination of the Veteran was normal at the October 1992 separation examination and she denied experiencing painful joints, dizziness, an adverse reaction to a serum, drug, or medicine, or hepatitis on the accompanying report of medical history. Post-service treatment records are also negative for competent evidence in support of the claim. Clinical records from the Anchorage VAMC show that the Veteran was seen in March 2002, almost 10 years after discharge from her first period of service, requesting hepatitis C testing. Laboratory testing confirmed the presence of hepatitis antibodies in April 2002 and the Veteran was seen in a hepatitis consultation in September 2002. At that time, she did not report a history of possible exposure during service and the consultation report shows that there was no identifiable etiology for hepatitis C. Since the initial diagnosis, the Veteran's hepatitis has been characterized as stable and there is no indication she has received any specific treatment for the condition or has been diagnosed with liver disease. The competent medical evidence is also clearly against the claim for service connection. None of the Veteran's treating physicians have provided an opinion in support of the claim. In fact, the only medical opinion of record, that of the October 2011 VA examiner, weighs against the claim. After reviewing the complete record and physically examining the Veteran, the VA examiner found that the Veteran's hepatitis C was less likely as not due to air injectors used in service. The examiner's opinion was based on several factors, including the Veteran's normal blood laboratory results in December 1989 and the fact that a large percentage (44 percent) of hepatitis C patients have no identifiable risk factors for the disease. The examiner also noted that the most widely utilized multiple-use nozzle jet injectors have never been implicated in the transmission of bloodborne diseases. VA is aware that despite the lack of any scientific evidence to document transmission of hepatitis C with air gun injectors, it is biologically plausible. Veterans Benefits Administration (VBA), Director Bulletin, 211B (98-110) (Nov. 30, 1998); VBA, Fast letter 04-13 (June 29, 2004). However, the October 2011 VA examiner specifically addressed the Veteran's specific contentions regarding air gun injectors and provided an opinion against the claim. The opinion was rendered following an accurate review of the Veteran's medical history and included a well-reasoned and supported basis for the conclusion. It is therefore entitled to substantial probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). The Board has also considered the Veteran's statements linking her hepatitis C to service. While lay persons are competent to provide opinions on some medical issues, the specific issue in this case, the etiology of hepatitis C, falls outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1376-1377 (Fed. Cir. 2007). The Veteran is competent to testify as to observable symptoms, but her opinion as to the cause of the symptoms simply cannot be accepted as competent evidence. Id. As a final matter, the Board notes that service connection is also possible for certain chronic disabilities under 38 C.F.R. § 3.303(b) based on a continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Hepatitis C is not a chronic disease listed in 38 C.F.R. § 3.309(a), but the Veteran is competent to report symptoms since service and such statements can support a claim for service connection under 38 C.F.R. §§ 3.303(a) and (d). In this case, the Veteran has not reported a continuity of symptoms of hepatitis C since active duty. The Veteran contends that she was exposed to the disease during basic training in 1989 and experienced some symptoms soon afterward, including fatigue and muscle and joint pain. However, she also testified in July2012 that she has not received any treatment for the condition, has not always manifested symptoms, and was activated to active service with the Army in August 2007 without any problems or issues related to hepatitis C. As the Veteran has not reported a continuity of symptoms since service, such statements do not lend any support to her claim for service connection. In sum, the post-service medical evidence of record shows that the first evidence of hepatitis C was many years after the Veteran's separation from active service in December 1992. There is also no medical evidence that her hepatitis C is related to military service. The Board has considered the Veteran's statements regarding a link between in-service air gun inoculations and hepatitis, but finds that her statements are of little probative value as she is a layperson and not competent to provide medical opinions. Her statements are clearly outweighed by the medical evidence against the claim, including the medical opinion of the October 2011 VA examiner. As the evidence does not establish a nexus between the Veteran's hepatitis C and in-service injury, the Board must conclude that the preponderance of the evidence is against the claim and it is denied. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for hepatitis C is denied. ____________________________________________ JOAQUIN AGUAYO-PERELES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs