Citation Nr: 1750164 Decision Date: 11/06/17 Archive Date: 11/17/17 DOCKET NO. 11-22 333 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to a service connection for hepatitis C. 2. Entitlement to a service connection for bipolar disorder, to include as due to hepatitis C. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Monrose, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1978 to August 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Veteran was scheduled to present testimony via video conference before a Veterans Law Judge in August 2017. However, the Veteran failed to report to the hearing. As the record does not contain any explanation as to why the Veteran failed to report to the hearing or a request to reschedule the hearing, the Board deems the Veteran's request for such a hearing to be withdrawn. See 38 C.F.R. § 20.704(d) (2017). FINDINGS OF FACT 1. The Veteran's hepatitis C was demonstrated years after service and is not etiologically related to a disease or injury in service. 2. Bipolar disorder was demonstrated years after service and is not etiologically related to a disease or injury in service, including nonservice-connected hepatitis C. CONCLUSION OF LAW 1. The Veteran's hepatitis C was not incurred in or aggravated by active duty service. 38 U.S.C.A. § 1131(West 2015); 38 C.F.R. § 3.303 (2017). 2. The Veteran's bipolar disorder was not incurred in or aggravated by active service and is not caused by or the result of a service-connected disability. 38 U.S.C.A. § 1131 (West 2015); 38 C.F.R. §§ 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Hepatitis C The Veteran contends that service connection is warranted for hepatitis C as it was incurred due to inoculations he received during his active military service. For the reasons stated below, the Board disagrees. The Veteran has a current disability. The record establishes the presence of chronic hepatitis C. See Denver VA Medical Center (VAMC) February 2003 outpatient treatment records. He had a liver biopsy in January 2005 which showed that he had chronic hepatitis with mild periportal inflammation. See Cheyenne VAMC outpatient treatment records dated June 2011. The Veteran receives treatment for his condition. See Cheyenne VAMC outpatient treatment records dated February 2012 and June 2011. The Board finds that the Veteran has satisfied the first prong to establish a service connection. Service treatment records are negative for evidence of hepatitis C. In April 1980, the Veteran completed a dental history which required him to identify any conditions that required treatment and the box for hepatitis was left unchecked. There are no complaints or treatment for hepatitis C and the Veteran's blood work and physical examination was normal at the August 1980 separation examination. The Veteran contends that he received an inoculation during basic training. See Statement in Support of a Claim dated October 2011. In addition, he contends that a physician in charge of the program at the Denver VA informed him that his genome type was the type that normally contracted hepatitis C during mass inoculations. Id. The Veteran is competent to state that he received vaccinations in service, although the Board does note that there is no documentation of vaccinations in the available service treatment records. However, since the Veteran is competent to testify as to events that he recalls, and given that the vaccinations were routinely provided by the military, the Board will accept his statement that such vaccinations occurred as reported. Therefore, there was in "injury" in service. Regarding the third element of service connection, service and post-service treatment records do not indicate a link between the Veteran's current disabilities and any established in-service injuries. As noted above, service records are negative for complaints or treatment related to hepatitis C, and the Veteran's systems and blood work were normal at the August 1980 separation examination. There is also no evidence of hepatitis C until February 2003, 23 years after active duty service, when the Veteran was diagnosed with hepatitis C at the Denver VAMC. The weight of the competent medical evidence is also against the claim. None of the Veteran's treating physicians have attributed his hepatitis C to vaccinations during service. In the June 2017 VA examination report, the VA examiner identified several nonservice-related risk factors for hepatitis C including a history of IV and intranasal drug use, numerous tattoos, and the Veteran's sexual history. See also, Cheyenne VAMC outpatient treatment records dated April 2012. After reviewing the Veteran's claims file, the VA examiner concluded that hepatitis C was not due to service, but was instead more likely than not due to the Veteran's own personal risk factors. The examiner did refer to the Veteran's allegations that he was exposed to hepatitis at the time he received vaccinations with a jet gun injection. The literature provided by the Veteran, while noting such transmission is a biological plausibility, was silent as to case reports or substantial documentation for this mode of transmission. The examiner concluded that any air gun injections that might have occurred in service were less likely than not the mode of transmission of the Hepatitis C infection in the Veteran. In fact, in April 2012, a VA health provider indicated that the Veteran was positive for hepatitis C due to IV drug use in the past. See Fort Collins VAMC mental health progress notes dated April 2012. The Board has also considered the Veteran's statements linking his hepatitis C to service. Lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011). The specific issue in this case, however, the etiology of hepatitis C, falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372, 1374 (Fed. Cir. 2007). The Veteran is competent to testify as to observable symptoms, but his opinion as to the cause of the symptoms simply cannot be accepted as competent evidence. Id. In light of the foregoing, the preponderance of the evidence weighs against a finding that the Veteran's hepatitis was incurred in service. Therefore, service connection is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Bipolar disorder (claimed as depression) The Veteran contends that his depression was caused by hepatitis C diagnosis. The Board finds that a secondary service connection is not warranted. Establishing a service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995), see also 38 C.F.R. § 3.310 (2016). The Veteran has a current disability. The Veteran was diagnosed with bipolar disorder with psychotic features. See Sheridan VAMC outpatient treatment records dated December 2011. The Board recognizes that another psychiatric diagnosis has been rendered throughout the claims period, such as post-traumatic stress disorder (PTSD). See Sheridan VAMC outpatient treatment records dated October 2011. The Veteran's PTSD has been attributed to his childhood abuse and not his hepatitis C. Id. Accordingly, the first criterion has been met. The second criterion has not been met. Inasmuch as service connection for hepatitis C has been denied (see above), a threshold legal requirement for establishing secondary service connection is not met, i.e., it is not shown that the primary disability (hepatitis C) alleged to have caused or aggravated the disability for which secondary service connection is sought (bipolar depression) is service-connected. Accordingly, the claim of service connection for bipolar disorder (claimed as depression) as secondary to hepatitis C is legally insufficient and must be denied as lacking legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Veteran's wife and brother submitted statements regarding how the Veteran's hepatitis C diagnosis has rendered him reclusive, anxious, and unable to perform daily activities. See Statements in Support of Claim dated December 2011. Similarly, the Veteran attributes his mental state to his hepatitis C diagnosis. See October 2011 Statement in Support of Claim. The Board has also considered the Veteran's statements linking his hepatitis C to service. Lay persons are competent to provide opinions on some medical issues. See Kahana, 24 Vet. App. at 434. The specific issue in this case, however, the etiology of bipolar depression, falls outside the realm of common knowledge of a lay person. Jandreau, 492 F.3d at 1374. The Veteran and his relatives are competent to testify as to observable symptoms, but their opinions as to the cause of the symptoms simply cannot be accepted as competent evidence. Id. The benefit of the doubt doctrine does not apply because the preponderance of the competent evidence is unfavorable. Accordingly, the Veteran's claim for a secondary service connection for bipolar disorder is denied. ORDER Entitlement to a service connection for Hepatitis C is denied. Entitlement to a service connection for bipolar disorder, to include as due to Hepatitis C is denied. ____________________________________________ L. M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs