Citation Nr: 1330438 Decision Date: 09/23/13 Archive Date: 09/30/13 DOCKET NO. 13-01 831 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD Marne Marotta, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1972 to April 1975. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. FINDING OF FACT There has been no demonstration by competent medical, nor competent and credible lay, evidence of record that the Veteran's hepatitis C is related to active duty. CONCLUSION OF LAW The criteria for service connection for hepatitis C have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002), 38 C.F.R. §§ 3.102, 3.159, 3.301, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The duty to notify was satisfied via a letter sent to the appellant in September 2010. The duty to assist has also been satisfied. VA has obtained the appellant's service treatment records, VA medical records and private treatment records identified by the appellant as relevant to the appeal. The Veteran was also afforded a VA examination in November 2010. The VA examination is adequate, as it included a review of the claims folder and treatment records, considered the Veteran's statements and provided explanations for the opinions stated. Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). The Veteran has not identified any other relevant evidence that has not been requested or obtained. The Board finds that VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on his claim for service connection for hepatitis C at this time. II. Service Connection Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. § 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). The term "chronic disease," whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for hepatitis C, the evidence must show that hepatitis C infection, risk factor(s), or symptoms were incurred in or aggravated by service. The evidence must further show by competent evidence that there is a relationship between the current hepatitis C disability and an incident of the Veteran's 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. Direct service connection may be granted only when a disability or cause of death was incurred or aggravated in line of duty, and not the result of the veteran's own willful misconduct or, for claims filed after October 31, 1990, the result of his or her abuse of alcohol or drugs. See 38 U.S.C.A. §§ 105, 1131; 38 C.F.R. § 3.1(n), 3.301. VA's General Counsel has confirmed that direct service connection for a disability that is a result of a claimant's own abuse of alcohol or drugs is precluded for purposes of all VA benefits for claims filed after October 31, 1990. See VAOPGCPREC 7-99 (1999), published at 64 Fed. Reg. 52,375 (June 9, 1999); VAOPGCPREC 2-98 (1998), published at 63 Fed. Reg. 31,263 (February 10, 1998). The Veteran's claim was submitted in 2010. In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). III. Analysis The Veteran claims that he incurred hepatitis C as a result of in-service vaccinations that were administered with a pressurized air gun. In his September 2010 claim, the Veteran stated that he was given immunizations with an air gun; that he donated plasma while in service; and that he used IV drugs and shared needles. In his June 2011 notice of disagreement, the Veteran stated that he was diagnosed with hepatitis C in April 1994; that he started using IV drugs in December 1974; and that he engaged in sexual acts with seven different women in one day after his mother passed away in October 1973. The Veteran's service treatment records (STRs) are negative for any diagnosis or indication of hepatitis C or any other significant illness. An immunization record shows that he received various vaccinations, but there is no indication of any reactions or complaints related to the immunizations. The Veteran's March 1975 separation examination was silent for any significant interval history or pertinent defects or diagnoses. In his concurrent Report of Medical History, the Veteran indicated that he did not have jaundice or hepatitis; or any stomach, liver or intestinal trouble. The evidence of record does not indicate hepatitis C symptomatology until many years after service. The Veteran indicated that he was diagnosed with hepatitis C in April 1994, which is nineteen years after service. The Veteran's medical records do not indicate that he sought treatment at that time. The earliest evidence of treatment is from April 2010, after a liver biopsy revealed moderate inflammation consistent with a hepatitis C infection. During a November 2010 VA examination, the Veteran indicated that he used IV drugs from 1974 until the late 1980s, smoked crack cocaine and had intranasal cocaine use until the early 1990s, shared needles and was promiscuous with multiple prostitutes "years ago." The examiner diagnosed chronic hepatitis C infection stable without evidence of cirrhosis. The examiner indicated that the Veteran's "long-standing history of IV drug abuse from 1974 to the late 1980s highly outweigh the minimal risk of hepatitis C exposure from receiving vaccines through a pressurized vaccine gun especially since the Veteran admits that is IV drug use involved sharing needles." The examiner opined that the Veteran's hepatitis C is most likely a result of his long-standing IV drug use and was "less likely as not ... caused by or a result of vaccines received via pressurized vaccine gun." To the extent that the November 2010 VA examiner attributed the Veteran's hepatitis C to intravenous drug use that started during service, the use of illegal drugs during service constitutes drug abuse and precludes the Veteran from obtaining benefits based on this potential exposure. 38 U.S.C.A. §§ 105, 1110; 38 C.F.R. §§ 3.301, 3.1(m): VAOPGCPREC 7-99; VAOPGCPREC 2-98. Although the Veteran has indicated that he believes his hepatitis C resulted from immunizations received via an air gun, the Veteran does not have the medical training or expertise to render a competent opinion as to whether he may have contracted hepatitis C, as this is a determination that is too complex to be made based on lay observation alone. Although the Veteran is competent to state that he received shots via air gun in service and the Board finds his testimony credible in that regard, the issue of whether his hepatitis C is related to those shots, or otherwise to service, falls outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Board finds that the other evidence of record, including the VA medical opinion, post-service medical records, and the Veteran's report of hepatitis C risk factors, are more probative than the Veteran's lay statements concerning the etiology of his hepatitis C. For these reasons, entitlement to service connection for hepatitis C is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 4 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for hepatitis C is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs