Citation Nr: 1322047 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 09-47 915 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The Veteran served on active duty from June 1973 to March 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. On his November 2009 substantive appeal (VA Form 9), the Veteran requested a Board hearing before a Veterans Law Judge sitting at the RO. His requested hearing was scheduled for June 2011, but the Veteran failed to appear. Therefore, his request for a Board hearing is considered withdrawn. 38 C.F.R. § 20.704(d) (2012). This case was previously before the Board in January 2012, at which time it was remanded for additional development. As will be discussed herein, there has been substantial compliance with January 2012 remand directives, and the case has returned to the Board for further appellate consideration. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board's remand directives is required). The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the Virtual VA claims file reveals VA treatment records dated from October 2008 to February 2012 that were not considered in the July 2009 statement of the case. Paper copies of some of these records are also contained in the claims file. While the agency of original jurisdiction (AOJ) issued a supplemental statement of the case in May 2012, such records were not explicitly considered. However, the supplemental statement of the case did specifically consider and discuss the March 2012 addendum opinion, which, in turn, considered and discussed the relevant VA treatment records contained in Virtual VA (i.e., those dated in November 2009 and June 2011). Therefore, the Board finds that the AOJ considered the relevant VA treatment records in the May 2012 supplemental statement of the case and, consequently, there is no prejudice to the Veteran in the Board considering the same evidence. See Bernard v. Brown, 4 Vet. App. 384, 393 (1993). FINDING OF FACT Hepatitis C was not shown during active duty service, or for many years after active duty service, and is unrelated to service or any incident therein. CONCLUSION OF LAW Hepatitis C was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements) The RO informed the Veteran of VA's duty to assist him in the development of evidence pertinent to his service connection claim in a letter dated in August 2008, wherein the Veteran was advised of the provisions relating to the VCAA. The Veteran was advised that VA would assist him with obtaining relevant records from any Federal agency, which may include medical records from the military, from VA hospitals (including private facilities where VA authorized treatment), or from the Social Security Administration. With respect to private treatment records, the letter informed the Veteran that VA would make reasonable efforts to obtain private or non-Federal medical records, to include records from State or local governments, private doctors and hospitals, or current or former employers. Furthermore, the VA included copies of VA Form 21-4142, Authorization and Consent to Release Information, which the Veteran could complete to release private medical records to the VA. The Board further observes that the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (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. The Veteran was provided with notice of the type of evidence necessary to establish a disability rating and effective date as was discussed in the Dingess case in August 2008, prior to the adjudication of the claim in November 2008. Thereafter, the RO adjudicated the claim in a statement of the case issued in July 2009 and in a supplemental statement of the case issued in May 2012. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of fully compliant notification followed by readjudication of the claim, such as an Statement of the Case or Supplemental Statement of the Case, is sufficient to cure a timing defect). The Board also finds that all of the relevant facts have been properly developed, and that all available evidence necessary for an equitable resolution of the issue on appeal has been obtained. The Veteran's service treatment records (STRs) and post-service treatment records, including VA records, are on file. He has not identified any additional, outstanding records that have not been requested or obtained. As indicated in the Introduction, a review of Virtual VA reveals VA treatment records dated from October 2008 to February 2012 that were not considered in the July 2009 statement of the case. Paper copies of some of these records are also contained in the claims file. While the AOJ issued a supplemental statement of the case in May 2012, such records were not explicitly considered. However, the supplemental statement of the case did specifically consider and discuss the March 2012 addendum opinion, which, in turn, considered and discussed the relevant VA treatment records contained in Virtual VA (i.e., those dated in November 2009 and June 2011). Therefore, the Board finds that the AOJ considered the relevant VA treatment records in the May 2012 supplemental statement of the case and, consequently, there is no prejudice to the Veteran in the Board considering the same evidence. See Bernard, supra. VA's duty to assist also includes obtaining an examination and medical opinion when necessary to make an adequate determination. See Duenas v. Principi, 18 Vet. App. 512 (2004). During the appeal period, VA examinations and/or opinions dated in October 2008 and March 2012 were associated with the file. The Veteran and his representative have not maintained these examination/opinions are inadequate. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (in the absence of a challenge to the adequacy of the examination, the Board is not required to explicitly explain why each medical opinion is adequate). Moreover, the Board finds that such VA examination and accompanying opinions are adequate to decide the issue as they are predicated on an interview with the Veteran; a review of the record, to include his service treatment records; and a physical examination with diagnostic testing. The opinions proffered considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination and opinion regarding the issues decided herein has been met. In January 2012, the Board remanded the case for additional development, to include affording the Veteran an opportunity to identify any outstanding treatment records and obtaining an etiological opinion. In this regard, the Veteran was provided an opportunity in a February 2012 letter to identify or submit any relevant medical records. Additionally, as discussed in the preceding paragraphs, VA treatment records have been obtained and an addendum opinion was obtained in March 2012 so as to determine the etiology of his hepatitis C in accordance with the January 2012 remand directives. Therefore, the Board finds that the AOJ has substantially complied with the January 2012 remand directives such that no further action is necessary in this regard. See D'Aries, supra. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. Factual Background The Veteran's DD 214 Form shows that he served in the United States Navy from June 1973 to March 1974. He has no awards or decorations indicative of combat. Review of the service treatment records (STRs) does not reflect any complaints, treatment, or a diagnosis referable to hepatitis C during service. The STRs include a June 1973 enlistment examination report which fails to reflect that the Veteran had any sort of body marking, such as a scar or tattoo. In October 1973, November 1973, December 1973, and January 1974, the Veteran was treated for symptoms that collectively including vomiting, body aches, cough, congestion, and weakness, and were assessed as flu. The March 1974 separation examination report was positive for some sort of body markings, apparently indicating that the Veteran had at least 1 tattoo, on his arm, if not one on each arm. The Veteran filed a service connection claim for hepatitis C in July 2008. In support of the claim, a November 1988 letter from the American Red Cross was submitted informing the Veteran that abnormal test results had been found in conjunction with his blood donation. Specifically, such letter explained that an elevated level of alanine aminotransferase (ALT) had been found which could be an indicator of hepatitis C. In a statement provided in August 2008, the Veteran indicated that he had served as cook in the Navy and that, while stationed in Subic Bay in the Philippines from April 1973 to March 1974, he received tattoos and was involved in sexual activity. The file includes a VA medical record of February 2001 noting that hepatitis C had been diagnosed by liver biopsy in 1998. It was recorded that this had been treated with Rebetron for 3 months, but that the treatment could not be tolerated and the condition had not been treated since. VA records show that testing for hepatitis A and B done in August 2008 was negative. A September 2008 record documents the findings of hepatitis C based upon a liver biopsy of April 1998. A VA examination was conducted in October 2008 and the claims file was reviewed. At that time, the examiner noted that the Veteran's June 1973 enlistment examination showed no tattoos, and that his March 1974 discharge examination showed that he had received tattoos. The VA examiner found that no hepatitis or other liver conditions were noted during the Veteran's active duty, and that he was initially diagnosed with hepatitis C in 1998. The examiner observed that the Veteran reported that the onset of his actual illness came in 1998, at which time he had fatigue and no energy, and became unable to do his job normally. It was further mentioned that the Veteran believed that the onset of his hepatitis was in 1973 during service. The examination report reflects that the Veteran acknowledged having risk factors including obtaining tattoos during and after service, and engaging in high risk sexual practices during service. Also noted were the Veteran's negative responses to blood exposure, cocaine use, or IV drug use. Hepatitis C was diagnosed. The VA examiner opined that the Veteran's hepatitis C was less likely than not (less than 50/50 probability) caused by or a result of his in-service events or risk factors. The examiner based this conclusion on a review of medical literature and records, her own clinical experience, the absence of any diagnosis of or treatment for hepatitis C or any other liver condition during active duty, the Veteran's admission of receiving tattoos after service (as well as during service), the fact that other risk factors between his release from active duty in 1974 and his initial diagnosis of hepatitis C in 1998 are unknown, and the fact that his 1988 abnormal liver function lab test was not specific to hepatitis C. On the January 2009 substantive appeal form, the Veteran asserted that he was given inoculations with air guns upon entering service in June 1973. He further asserted that the syringes on these air guns were not changed, cleaned, or sanitized between recipients, and as a result he was exposed to the blood of other inoculation recipients. The Veteran had previously attributed his hepatitis C to receiving tattoos and being involved in sexual activity at Langopo City at the Subic Bay during his time in service. (See August 2008 VA Form 21-4138). A November 2009 VA treatment record reveals that the Veteran reported that he became wild when his parents divorced and dropped out of school. A June 2011 record notes that the Veteran experimented with drugs in his teens. In August 2011, the Veteran's representative presented argument to the effect that the Veteran's flu-like symptoms which manifested during service were initial symptoms of hepatitis C. Pursuant to a Board remand of January 2012, it was requested that the case be returned to the October 2008 VA examiner for an addendum opinion. After reviewing the claims file, to include any newly received records, the examiner was asked to provide an addendum opinion addressing whether it was at least as likely as not that the Veteran's hepatitis C is related to his military service. It was requested that in reaching an opinion, the examiner specifically consider both the Veteran's alleged blood exposure in service via unclean air gun syringes and his documented tiredness, weakness, and flu-like symptoms (e.g., in November 1973, December 1973, and January 1974) and associated in-service testing. It was also mentioned that in offering any opinion, the examiner must consider the Veteran's lay statements regarding the incurrence of his hepatitis C and the continuity of symptomatology. In March 2012, the same VA examiner who had conducted the 2008 VA examination provided a second opinion; the report reflects that the claims folder and VA records were reviewed. The Veteran's STRs were summarized, as were pertinent post-service VA records and findings made during the 2008 VA examination. The VA examiner concluded that she could not resolve the issue of whether it was at least as likely as not that the Veteran's hepatitis C was related to military service without resorting to mere speculation. The examiner explained that VA records contained information raising the possibility of hepatitis C risk behavior, due to drug use, prior to service. She further mentioned that regarding air gun syringes, while medical literature states that transmission of Hepatitis C by air gun injectors is a theoretical possibility, there is no objective evidence that use of air gun injections for immunizations does or has transmitted Hepatitis C. With respect to the episode of "tiredness, weakness, and flu-like symptoms" in November 1973, she noted that the Veteran had undergone a lab test for hepatitis -SGOT of transaminase that was normal making it less likely as not that this in-service illness was due to Hepatitis C. Regarding tattoos, the examiner acknowledged that the Veteran had tattoos in service but also had tattoos after service, and that therefore, it would be merely speculating to report that the in-service tattoos were more high risk than the post-service tattoos. She also pointed out that per records the Veteran would have been married in approximately 1980 and high risk sexual practices between release from active duty and his marriage are unknown. Regarding the matter of consideration of the Veteran's lay statements regarding the incurrence of his hepatitis C and the continuity of symptomatology, per the October 2008 VA examination, the Veteran reported not having symptoms until 1998, i.e., 24 years after active duty. Therefore, the examiner concluded that there was no objective evidence to support the Veteran's reports of hepatitis C onset in service. Analysis The Veteran maintains hepatitis C is of service origin, warranting the grant of service connection. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as diabetes mellitus, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The provisions of 38 U.S.C.A. § 1154(a) require that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). Specific to service connection claims for hepatitis C, the evidence must show that a Veteran's hepatitis C infection, risk factor(s), or symptoms were incurred in or aggravated by service. 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. See VBA letter 211B (98-110) November 30, 1998. As an initial matter, the Board finds that the Veteran has a current diagnosis of hepatitis C. In this regard, medical records reflect that it was definitively diagnosed in 1998. With respect to service incurrence, the Veteran's STRs are entirely negative for treatment or a diagnosis related to hepatitis C. The Board acknowledges that reliable screening for hepatitis C was not recognized at the time of the Veteran's period of service and observes that, accordingly, the lack of a diagnosis of hepatitis in service is not dispositive of the service connection issue. The Veteran has provided accounts of several possible service-related risk factors/etiologies relating to his hepatitis claim consisting of: high risk sexual activity; getting tattoos during service, and receiving inoculations with an air gun which the Veteran maintains was contaminated. He and his representative have also maintained that the Veteran's treatment for flu symptoms on several occasions during service were early indicators of hepatitis C. In consideration of the aforementioned reported events and risk factors, they must be weighed in terms of credibility and probative value in light of the overall evidence relating to the etiology of hepatitis C. In weighing the credibility, VA may consider interest, bias, inconsistent statements, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the Veteran. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). In assessing the Veteran's reported risk factors, the Board observes that the Veteran has no way of knowing and does not specifically allege that any particular sexual partner he had during service actually had hepatitis. Moreover, as pointed out by the VA examiner in 2012, his sexual practices between discharge from duty in 1974 and his marriage in 1980 are unknown, and as such are potentially also factorable. With regard to the risk factor of tattoos, it does appear that the Veteran received one or more tattoos during service. However, again he has no way of knowing, nor does he specifically assert that any instrument used to create his tattoo(s) in-service was actually contaminated. Further, as pointed out by the VA examiner in 2012, the Veteran also received tattoos post-service, and it would be merely speculative to determine that the in-service tattoos were more high risk than the post-service tattoos. Accordingly, neither of these reported in-service risk facts has been implicated as being, at least as likely as not, the source of subsequently developed hepatitis C. The Board further notes that both of the aforementioned risk factors were not initially reported by the Veteran until decades after service and essentially only after he filed his compensation claim for hepatitis C in 2008. See Macarubbo v. Gober, 10 Vet. App. 388 (1997) (holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). Accordingly, the rather vague information provided by the Veteran regarding these risk factors in relation to the subsequent development of hepatitis C is clinically and objectively unsubstantiated and merely speculative. The Veteran has also asserted that his hepatitis is due the immunizations he received by use of air jet inoculation guns while on active duty, maintaining that contaminated equipment was used. The record contains no pronouncement from any evaluating physician or competent source indicating or suggesting that air gun immunizations were the cause of the Veteran's hepatitis C. Nor is there any indication in the file of a unique circumstance involving the Veteran's receipt of immunizations during service to suggest the likelihood of transmission of the hepatitis C virus. Rather, the Board finds that the weight of the competent evidence does not attribute the Veteran's hepatitis C to this reported and objectively unsubstantiated factor. In this regard, a VA examiner specifically addressed this theory of etiology in the 2012 VA opinion, explaining that while medical literature states that transmission of Hepatitis C by air gun injectors is a theoretical possibility, there is no objective evidence that use of air gun injections for immunizations does or has transmitted Hepatitis C. The file contains no competent opinion to the contrary and the Veteran has not provided any competent medical evidence to diminish the significant probative value of this opinion. See Wray v. Brown, 7 Vet. App. 488, 492-93 (1995). The Veteran and his representative have also suggested that the Veteran's flu symptoms for which he was treated on multiple occasions during service, actually represented early indications of hepatitis C. Having fully reviewed and summarized the pertinent STRs in the 2012 examination report, the VA examiner pointed out that, with respect to the episode of "tiredness, weakness, and flu-like symptoms" in November 1973, the Veteran had undergone a lab test for hepatitis -SGOT of transaminase that was normal, thus making it less likely as not that this in-service illness was due to hepatitis C. Further pertinent to the claim are the Veteran's assertions of continuity and chronicity since service. As an initial matter, the Board notes that the U.S. Court of Appeals for the Federal Circuit recently clarified that the continuity of symptomatology language in § 3.303(b) "restricts itself to chronic diseases" found in 38 C.F.R. § 3.309(a). See Walker, supra ("Nothing in § 3.303(b) suggests that the regulation would have any effect beyond affording an alternative route for proving service connection for chronic diseases"). As hepatitis C is not a chronic disease under 38 C.F.R. § 3.309(a), the Veteran may not establish continuity of symptomatology in lieu of a medical nexus. Furthermore, post-service, hepatitis C was not definitively diagnosed until 1998, more than 20 years after the Veteran's discharge from service. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (a prolonged period without treatment is evidence that there has not been a continuity of symptomatology, and it weighs heavily against the claim on a direct basis). The 2012 VA examination report similarly reflects that the examiner was unable to find any indication of the onset of hepatitis during service, or prior to 1998, and that the Veteran's flu symptoms in service were not early indicators of hepatitis C. The Board has considered the statements and opinions made by the Veteran relating his hepatitis C to his active service, either by virtue of high risk sexual practices, receipt of one or more tattoos, immunizations he received by use of air jet inoculation guns, or recurrent treatment for flu symptoms. The Board observes that whether an etiological relationship exists between any of these in-service events and contracting hepatitis, first documented more than two decades after service discharge, is a complex medical matter and any lay opinion provided in this regard is of no probative value. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006). Specifically, the Veteran is simply not competent to provide an opinion regarding the etiology of his hepatitis C. See Jandreau at 1377 ("Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer."). As hepatitis C is not diagnosed by unique and readily identifiable features and the etiology of the condition is often difficult to determine as such involves an internal physical process extending beyond an immediately observable cause-and-effect relationship, the Veteran's unsubstantiated accounts regarding the claimed etiology of his hepatitis C are found to lack competency. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). The Board is compelled to point out that the Veteran's drug use is also a potential risk factor for hepatitis in this case. Significantly, the Veteran denied a history of drug use during the 2008 VA examination; however, per VA treatment records of 2009 and 2011, he indicated that he experimented with drugs in his teens. The 2012 VA examination report reflects that the examiner acknowledged the Veteran's pre and possible post-service drug use as a potential risk factor in the later development of hepatitis; however, no specific etiological link in this regard was made via medical opinion. Moreover, any in-service drug use would constitute willful misconduct. See 38 C.F.R. § 3.1(n) ("willful misconduct means an act involving conscious wrongdoing or known prohibited action...it involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences"); 38 C.F.R. § 3.301(c)(2) ("the deliberate drinking of a known poisonous substance or under conditions which would raise a presumption to that effect will be considered willful misconduct"). Direct service connection can be granted only when a disability was incurred or aggravated in the line of duty not as a result of the Veteran's own willful misconduct or, for claims filed after October 31, 1990, the result of his abuse of alcohol or drugs. 38 C.F.R. § 3.301(c)(2). As indicated previously, service connection may be granted when the evidence establishes a nexus between active duty service and current complaints. The requirement of an evidentiary showing of an etiological relationship has been repeatedly reaffirmed by the U.S. Court of Appeals for the Federal Circuit, which has held that a Veteran seeking disability benefits must establish the existence of a disability and a connection between a Veteran's service and the disability claimed. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). The Board observes that the VA examiner concluded in 2008 the Veteran's hepatitis C was less likely than not (less than 50/50 probability) caused by or a result of his in-service events or risk factors. The examiner based this conclusion on a review of medical literature and records, her own clinical experience, the absence of any diagnosis of or treatment for hepatitis C or any other liver condition during active duty, the Veteran's admission of receiving tattoos after service (as well as during service), the fact that other risk factors between his release from active duty in 1974 and his initial diagnosis of hepatitis C in 1998 are unknown, and the fact that his 1988 abnormal liver function lab test was not specific to hepatitis C. Among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Accordingly, this well supported opinion, based on a review of the record and Veteran's lay history is found to carry probative value weighing against the claim. However, in 2012, the same VA examiner concluded that she could not resolve the issue of whether it was at least as likely as not that the Veteran's hepatitis C was related to military service without resorting to mere speculation. The examiner explained that VA records contained information raising the possibility of hepatitis C risk behavior, due to drug use, prior to service. She further mentioned that regarding air gun syringes, while medical literature states that transmission of Hepatitis C by air gun injectors is a theoretical possibility, there is no objective evidence that use of air gun injections for immunizations does or has transmitted Hepatitis C. With respect to the episode of "tiredness, weakness, and flu-like symptoms" in November 1973, she noted that the Veteran had undergone a lab test for hepatitis -SGOT of transaminase that was normal making it less likely as not that this in-service illness was due to Hepatitis C. Despite the VA examiner's statement that she could not resolve the issue regarding the etiology of the Veteran's hepatitis C, her opinion is adequate to decide the case. The Board is cognizant of the holding of Jones v. Shinseki, 23 Vet. App. 382 (2010), where the Court stated that while VA need not "proceed through multiple iterations of repetitive medical examinations until it obtains a conclusive opinion or formally declares that further examinations would be futile," it must be clear "that the examiner has not invoked the phrase 'without resort to mere speculation' as a substitute for the full consideration of all pertinent and available medical facts to which a claimant is entitled." In essence, 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. 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. With regard to the March 2012 opinion, as detailed above, the VA examiner reviewed the claims folder, summarized the relevant facts and history, and indicated that an opinion could not be provided as the etiology of the Veteran's hepatitis in light of the multiple risk factors involved. Accordingly, in essence, the VA examiner concluded that an opinion could not be provided without resort to speculation. To be adequate, a medical opinion must do more than state a conclusion that etiology of a disability is unknown or unknowable; rather, the medical examiner must support his or her conclusion with sufficient rationale and explanation. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (holding that "the mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign the doctor's opinions"). That explanation was provided by the VA examiner in this case, as discussed above. Essentially, as the weight of the evidence is against a finding that the Veteran's claimed hepatitis C is in any way related to service, the preponderance of the evidence is against this service connection claim. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The benefit sought on appeal is therefore denied. ORDER Service connection for hepatitis C is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs