Citation Nr: 1753419 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 11-26 267 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service-connection for hepatitis C. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Pryce, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1974 to October 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. As a matter of background, this appeal previously came before the Board in August 2015, at which time it remanded the claim for further development. FINDINGS OF FACT 1. The evidence of record does not prove that the Veteran experienced any in-service risk factors for hepatitis C infection, to include injuries sustained in a fight in Morocco in 1974. 2. The Veteran had multiple pre- and post- service risk factors for contraction of hepatitis C. 3. It is less likely than not that the Veteran's hepatitis C had onset during active service, or is otherwise related to active service. CONCLUSION OF LAW The criteria for service connection of hepatitis C have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C. §§ 5103, 5103A (2012) and 38 C.F.R. § 3.159 (2017). Here, the duty to notify was satisfied by way of a letter sent in July 2009. VA also has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement relevant treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished and all available evidence pertaining to the matter decided herein has been obtained. The RO has obtained the Veteran's VA treatment records, service treatment records, military personnel records, VA examination reports, buddy statements, and statements from the Veteran and his representative. Neither the Veteran nor his representative has notified VA of any outstanding evidence, and the Board is aware of none. Hence, the Board is satisfied that the duty-to-assist was met. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Service Connection The Veteran seeks service connection for hepatitis C. The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.304 (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). 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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). The Board finds that service connection should be denied. The medical evidence of record indicates that the Veteran has a present diagnosis of hepatitis C, genotype-4, which was diagnosed between August 2007 and February 2008. For his part, the Veteran asserts that his hepatitis C was contracted during a fight that occurred during his period of active service. He states that he was involved in an altercation with several members of the local population in Tangiers, Morocco, in 1974. Particularly, he asserts that this is supported by the fact that hepatitis C, genotype-4, is associated with and most commonly found in the Middle East and Africa. At the outset, the Board finds that the evidence is insufficient to prove that the Veteran took part in an altercation during active service that would have resulted in fluid transmission between him and another person. The Board has researched the Veteran's service treatment records and found no evidence that the Veteran ever sought treatment for the type of injuries he claims he sustained, to include a split lip, and multiple cuts and contusions. As for the Veteran's own accounts of that altercation, his reports have been inconsistent at best. For example, an April 2009 VA treatment record indicates that he thought he might have been in a fight while in Morocco, but was not sure. Only later did he assert that he was set upon by multiple members of the local population. Likewise, his reports of his other hepatitis C risk factors have been less than complete from time to time. Particularly, the Board notes that in July 2009 he submitted a statement explicitly denying intravenous drug use, intranasal cocaine use, and high-risk sexual activity, despite multiple other records confirming such risk factors. He also asserts he was first diagnosed with hepatitis C in either 1981, 1985, or 1990, despite the fact that hepatitis C was not discovered as its own pathology until 1989, and effective testing for the virus not available until 1992. See Caluza v. Brown, 7 Vet. app. 498 (1995) (giving factors to consider when assessing the credibility of lay evidence, to include facial plausibility, internal consistency, consistency with other evidence, self-interest or bias, bad character, malingering, lay statements made during treatment, erroneous recollection, time of creation of evidence, and combat vs. non-combat situation). Further, to the extent that the Veteran has submitted a buddy letter attesting to a fight in Morocco, that letter merely states that he recalls the Veteran coming back from shore leave with cuts and bruises. There is no indication that this party actually witnessed the fight, nor is there any description of the severity of his wounds, such as the reported split lip or volumes of blood the Veteran asserts he was exposed to. In short, the evidence simply does not support that the Veteran ever was exposed to the blood of another person while in Morocco in 1974. Absent some type of actual evidence, for example, a separate eyewitness account of the fight as it took place, or a medical record confirming the types of injuries the Veteran asserts he sustained, the Board must determine that the Veteran was not exposed to blood while in active service. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010)(holding that a layperson's assertions indicating exposure to chemicals during service are not sufficient evidence alone to establish that such an event actually occurred). Here, the Board notes that the Veteran has multiple other high risk factors for hepatitis C which occurred outside of his brief six month period of active service. Evidence of record indicates that he engaged in intravenous drug use throughout the 1990s. He used intranasal cocaine in the early 1990s. He obtained tattoos at age 18, 23, and 52. He regularly donated plasma. He had an ear piercing at age 11 or 12. He reported multiple sexual partners, which he described as "less than 20" in total. He has admitted to contracting multiple sexually transmitted diseases, to include gonorrhea and syphilis (both in 1975 and 1987). His April 1974 entrance examination reports at least one instance of a sexually transmitted infection prior to service, as well as a hospitalization for a gunshot wound prior to enlistment. See VA Adjudication Procedure Manual M21-1, Part III.iv.4.I.2.e (providing a list of risk factors to consider when adjudicating hepatitis claims). Again, the Board notes that these risk factors were not present during the Veteran's active service. Despite the fact that the evidence does not prove that the Veteran experienced any risk factors during active service, the Board requested an examination and medical opinion. The examiner concluded that she could not render an opinion on whether or not the Veteran's hepatitis C had onset during active service without resort to speculation. Particularly, she noted the Veteran's multiple risk factors both prior to and after service, to include the reported 1974 altercation; multiple sex partners; intravenous drug use prior to service (between ages 16 and 17); ear piercing prior to service; tattoos at age 18, 22, and 52; nasal cocaine use in the early 1990s; and sexually transmitted diseases since age 15 (both gonorrhea and syphilis). Because of so many risk factors, the date of infection, as well as mode of infection, with hepatitis C is unable to be determined. She also noted that, although hepatitis C, genotype-4, is more commonly found in the Middle East and Africa, it has also been found in western countries, most likely impacted by international travel and population movement. Given the Veteran's multiple pre- and post- service risk factors, as well as the lack of documentation and vague symptoms regarding possible blood exposure in Morocco (described by the Veteran as a "few scratches and bruises - some blood on my face"), it is impossible to say, without resort to speculation, of his hepatitis C infection is related to or was incurred during his military service. The examiner cited to multiple medical treatises and studies in support of her conclusion. Here, the Board finds that the evidence simply does not support a finding of service connection. Although the examiner determined that a date of contraction could not be provided without speculation, the Board finds this unsurprising, particularly given the speculative nature of the Veteran's single reported in-service exposure. However, as discussed above, the Board now finds that insufficient credible evidence exists to prove that such an exposure ever took place. As such, that the examiner afforded the Veteran the benefit of the doubt and considered such an incident in determining that she could not give a date of transmission is not probative in this matter because it presumes an event which the Board has found is not supported by the evidence of record. The facts of this case show that the Veteran had multiple pre- and post-risk factors for contraction of hepatitis C. Given the very short period of active service in question, and the fact that the evidence does not support that he had any risk factors during that period of service, the Board must conclude that it is far more likely than not that his hepatitis C was not acquired during active service. Essentially, the claim fails the second criteria for service-connection, namely any in-service incident, event, or illness, to which his hepatitis C may be etiologically linked. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet App. 49 (1990); 38 C.F.R. § 3.102 (2017). ORDER Service connection for hepatitis C is denied. ____________________________________________ B. T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs