Citation Nr: 1752336 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 10-22 876A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Veteran represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD A. Odya-Weis, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1969 to January 1972, with service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The claim was reopened and remanded by the Board in October 2014 and remanded again in March 2016. In July 2017, a medical opinion was prepared by the Veterans Health Administration at the request of the Board. The Veteran was given a copy of this opinion and afforded an opportunity to submit additional evidence and argument, which his representative did. In August 2017 and October 2017, the Veteran's representative submitted evidence that was not considered in the last adjudication by the Agency of Original Jurisdiction (AOJ) and indicated that the review of a private medical opinion and medical literature by the AOJ was waived. Accordingly, initial review of the evidence by the Board is appropriate. See 38 U.S.C. § 7105(e) (2012). FINDING OF FACT The preponderance of the evidence weighs against a finding that the Veteran's hepatitis C is related to his active service. CONCLUSION OF LAW The criteria for service connection for hepatitis C have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION With regard to the duty to assist, the Veteran's representative contended in an October 2017 statement that the most recent July 2017 medical opinion did not address whether hepatitis C was directly related to the Veteran's in-service high-risk sexual activity or air injector inoculations and inadequately reviewed the Veteran's medical history because it characterized onset of hepatitis C from 2008. Upon review, the Board finds the July 2017 medical opinion is adequate and that the medical opinions and examination reports in this case adequately address the facts of this case so that the Board can make an informed decision. The VA examiners reviewed the Veteran's relevant medical history and lay testimony, completed physical examinations and other appropriate testing, and provided opinions as to the clinical findings. The July 2017 VA examiner provided adequate rationale for the opinions stated, relying on and citing to the records reviewed. Regarding high risk sexual behavior during service, in offering his opinion in July 2017, the VA examiner noted that acquisition of hepatitis thorough sexual activity is uncommon except for receptive sexual encounters and this would be unlikely with a female prostitute. In addition, the July 2017 VA examiner indicated that regardless of method of infection the evidence reflected that the Veteran did not develop hepatitis C in service. Specifically, the examiner opined that if the Veteran had longstanding hepatitis C then he would have developed cirrhosis of the liver and/or hepatocellular carcinoma which was not present as recently as 2014. To the extent that the representative contends that the Veteran may have been inoculated by air injector and that this hepatitis C risk factor was not considered, the Board notes that there is no evidence of record, to include the Veteran's statements, that he received air gun inoculations. As the representative's contention was solely based on service records noting a general immunization history and literature on inoculations, the Board finds no indication that air injector inoculations were at issue in this case. In any event, as discussed above, the July 2017 VA examiner indicated that regardless of method of infection the evidence indicated the Veteran was not infected with hepatitis C in service. The Veteran's representative has argued that the July 2017 opinion is inadequate as it relied on the inaccurate factual premise that the Veteran was diagnosed with hepatitis C in 2008 when in fact he was treated for hepatitis C in 1990. Even if this is the case, the opinion of the examiner would not be different given the rationale he provided. The examiner stated that hepatitis C infection of long duration (e.g., since service) would be associated with development of cirrhosis of the liver and/or hepatocellular carcinoma, which was not present as the Veteran had normal liver function tests as recently as May 2014. The opinion is not based on the date of initial diagnosis but on the date of infection. Therefore, even considering the representative's contentions, the Board finds the July 2017 medical opinion adequately addressed the pertinent questions of whether hepatitis C had onset in service or was otherwise directly related to service, to include any in-service risk factors and treatment for viral hepatitis. Given the above, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017). 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) (2017). To establish service connection, the evidence generally 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran contends that he has hepatitis C related to active service. Specifically, he asserts that hepatitis C was incurred in active service as evidenced by treatment for viral hepatitis in the Republic of Vietnam. In the alternative, the Veteran claims hepatitis C is related to in-service high-risk sexual behavior and notes that he was treated for venereal diseases while stationed in Vietnam in support of the claim. Initially, the Board notes that certain chronic diseases, to include cirrhosis of the liver, are subject to a grant of service connection on a presumptive basis when present to a compensable degree within the first post-service year. 38 C.F.R. §§ 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). However, there is no medical evidence demonstrating that hepatitis C resulted in cirrhosis of the liver during the appeal period. Notably, VA medical records report a November 2007 liver biopsy found no significant fibrosis. As such, consideration under the provisions found in 38 C.F.R. § 3.309(a) for chronic diseases is not for application in this case. The Board finds that the preponderance of the evidence is against a finding that the Veteran's hepatitis C had onset in service or is otherwise related to service, to include in-service high-risk sexual activity. Service treatment records reflect symptoms of abdominal cramping and dark "coca-cola" colored urine with bilirubin were diagnosed as viral hepatitis in September 1970. The September 1970 service treatment record found no jaundice or history of intravenous (IV) injections. Service records also document treatment for venereal disease in January 1970, October 1970, November 1970, January 1971, and October 1971. A January 1972 separation examination found no significant defects. A July 2017 medical opinion was obtained that determined hepatitis C was less likely as not incurred in active service, to include as related to high-risk sexual activity and that any in-service treatment was related to acute hepatitis A that the Board finds to be highly probative. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (noting that the credibility and weight of the opinions are within the province of the adjudicator); see also Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion.). Here, the examiner is a VA physician and chief of a VA Medical Center infectious diseases section that possesses the necessary education, training, and expertise to provide the requested opinion. Additionally, the opinions reflect a review of the Veteran's claims file, to include the Veteran's lay statements, and provide a persuasive rationale that the Veteran's in-service viral hepatitis was hepatitis A because the infection was short in duration, the symptomatology was most consistent with hepatitis A, hepatitis A was prevalent in Vietnam, post-service medical testing indicated the Veteran had a prior hepatitis A infection, and longstanding hepatitis C infection would result in cirrhosis or hepatocellular carcinoma which were not present. The examiner explained that the acute in-service symptoms were more likely due to hepatitis A as patients with acute hepatitis C infections have prolonged periods of symptomatology. The examiner noted that the Veteran was treated for viral hepatitis from September 11, to September 14, 1970, with no evidence of jaundice and that he was well enough by October 9, 1970, to require emergent care for gonorrhea. The examiner concluded that any hepatitis infection was short-lived based on finding the Veteran was likely healthy by October 4, 1970, with the incubation time for gonorrhea being three to five days. The examiner noted that the Veteran's symptomatology was also more consistent with hepatitis A because fewer than 25 percent of patients with hepatitis C developed jaundice or dark urine, whereas 40 to 70 percent of patients with hepatitis A developed the symptoms. Further, the examiner noted that it was much more likely that the Veteran had hepatitis A because it was endemic in Vietnam during the Veteran's service and is commonly acquired by ingestion of contaminated food or water. The examiner addressed a February 2010 private opinion finding in-service hepatitis may have been hepatitis C and concluded that serologic evidence of a 2012 positive result for the hepatitis A antibody made it more likely than not that the Veteran had hepatitis A in service. The examiner noted that VA medical records indicate the Veteran was unsuccessfully treated for hepatitis C in 2008 with ribavirin and interferon, a June 2012 VA hepatology clinic record found chronic hepatitis C caused by HCV genotype 1, and related serologic tests were positive for hepatitis B surface antigen antibody and hepatitis A. The examiner explained that the positive hepatitis B surface antigen antibody finding was due to the hepatitis B vaccine; he noted that the Veteran was immunized against hepatitis B in 2011, a standard practice to prevent a hepatitis B infection that could complicate treatment for hepatitis C. Based on the positive serologic test results for the hepatitis A antibody, the examiner concluded that the Veteran had a prior hepatitis A infection that was most likely related to the noted treatment for hepatitis in Vietnam. In addition, the examiner found hepatitis C was not otherwise etiologically related to active service based on a lack of evidence during the Veteran's service of the most common high risk behaviors associated with hepatitis C. Notably, the examiner noted that the most common high risk behaviors of in-service tattoos, blood transfusions, or IV drug abuse were not present. In addition, the examiner explained that it was uncommon to acquire hepatitis C through sexual activity when the sexual encounter was non-receptive, and such sexual encounters were unlikely with a female prostitute. Moreover, longstanding hepatitis C infection would result in cirrhosis and/or hepatocellular carcinoma which were not present. The Board finds the opinions consistent with the other evidence of record, to include the October 2009 examiner's findings that the Veteran did not have a history of drug abuse or blood transfusions, had never worked with blood or been on hemodialysis, and had no tattoos; the November 2014 and May 2016 medical opinions concluding that the Veteran's in-service symptomology was a typical presentation for hepatitis A; and the June 2013 medical opinion noting that hepatitis C symptomatology typically lasted 12 weeks and normal liver function tests until 2011 with no focal lesions or fibrosis were congruent with a more recent onset of hepatitis C, rather than an infection of more than 30 years in duration. Even though a February 1973 VA Form 10-7131 has a notation of heroin addiction and September 1990 private medical records indicate the Veteran was diagnosed with hepatitis C and borderline B12 deficiency, these medical records do not indicate that the Veteran had IV drug use in active service or that a diagnosis of hepatitis C was etiologically related to active service. Moreover, the Veteran has consistently stated that he did not have a history of IV drug use and that the February1973 notation of heroin addiction was in error. To conclude, the Board finds the July 2017 medical opinion against the claim to be the most probative evidence of record and that it is supported by other evidence of record. February 2010 and August 2017 private medical providers determined that it was possible that the hepatitis treated in service could have been hepatitis C. These statements are of little if any probative value as they are at best speculative. In addition, there is no rationale provided to support the conclusions. The Board also acknowledges that the Veteran submitted medical literature discussing the nature of acute and chronic hepatitis C infections, indicating a link between high-risk sexual behavior and transmission, and discussing air injector and other military immunizations. However, the Board finds the literature to be less probative than the VA medical opinions against the claim as the generic medical literature does not address the specific facts of this case. Finally, although the Veteran may sincerely believe that the hepatitis treated in active service was hepatitis C, there is no indication that he has the training or experience required to render a competent opinion diagnosing the disorder or linking current hepatitis C to service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt doctrine is therefore not applicable, and the claim for service connection for hepatitis C must be denied. See 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. at 55-57. ORDER Service connection for hepatitis C is denied. ____________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs