Citation Nr: 1755064 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 12-31 111 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Z. Sahraie, Associate Counsel INTRODUCTION The Veteran had active service in the United States Army from July 1974 to July 1977. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The matter was previously before the Board in February 2014, at which time it reopened the previously denied claim of entitlement to service connection for hepatitis C, and remanded the claim for further development. It was remanded again in April 2017 to afford the Veteran the opportunity for a Board hearing. The matter has been returned to the Board for appellate review. The Veteran testified before the undersigned Veterans Law Judge at a July 2017 videoconference hearing. The transcript is of record. This appeal was processed using the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this case should take into consideration the existence of these records. FINDING OF FACT The preponderance of the evidence indicates the Veteran's hepatitis C is etiologically unrelated to service. CONCLUSION OF LAW The criteria for service connection for hepatitis C have not been met. 38 U.S.C.A. §§ 1101, 1110, 1111, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to notify and assist When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran has been provided notice letters throughout the appeal that address all notice elements required. There has been no allegation of notice error in this case. See Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009). The Board has also satisfied its duty to assist. 38 U.S.C.A. § 5103A; 38 C.F.R. 3.159. VA has obtained all identified and available treatment records for the Veteran. In addition, the Veteran has undergone a VA examination in connection with his claim. The Board finds the examination adequate, because it includes a review of the medical file, an interview of the Veteran, and examination findings supported by rationale. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In light of the foregoing, the Board finds that VA has provided the Veteran with every opportunity to submit evidence and arguments in support of his appeal. The Veteran has not identified any outstanding evidence that needs to be obtained. Entitlement to service connection for hepatitis C Service connection may be established for disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. §§ 1101, 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an 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 (Fed. Cir. 2009). 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 Federal Circuit has held that continuity of symptomatology under 38 C.F.R. § 3.303(b) applies only to chronic diseases listed in 38 C.F.R. § 3.309 (2016). Walker v. Shinseki, 708 F.3d 1331, 1338 (2013). 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 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, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2017). VA treatment records reflect a current diagnosis of hepatitis C. The Veteran has been under treatment for the condition throughout the current appeal period. He contends that the condition is related to his military service. The Veteran has maintained, through documentary submissions and in hearing testimony, that he believes he contracted hepatitis C in service when he received immunizations via use of an "air gun" in service. The Veteran contends that soldiers to whom these immunizations were administered, including the Veteran himself, often bled during the procedures, and that blood was thereby transferred from one soldier to another. The Veteran's service treatment records are silent for a hepatitis C diagnosis, although "hepatitis" is listed as a differential diagnosis associated with treatment for viral gastroenteritis in June 1977. The condition was not noted at the Veteran's separation examination, where the Veteran attested to being in good health. The Veteran acknowledges that he first received an actual diagnosis of hepatitis C in April 2001, when he was tested pursuant to an attempt to donate or sell blood. VA treatment records from April 2003 indicate the Veteran underwent a hepatitis C screen ten years prior, in 1993, which was negative. Subsequent VA treatment notes further reveal the Veteran received a tattoo in prison during the intervening years, which tattoo was posited as the source of contraction. In contrast, April 2006 mental health treatment notes read, "[the] Veteran reports that he contracted Hep C when he used amphetamines." These notes further reveal that the Veteran "admit[ed] that he shared cotton and spoons used to prepare IV amphetamines." However, the Veteran's treatment notes do not establish any link to service, nor have providers opined that any aspect of service, including the Veteran's contention with respect to administration of immunizations, constitutes a plausible source of contraction. The Veteran was afforded a VA examination to explore the etiology of his hepatitis C in Mach 2015. The examiner noted the Veteran's contentions regarding the administration of immunizations in service, but cited the negative hepatitis C screen conducted in 1993, as well as the alternative potential sources of infection revealed by the record, including the Veteran's tattoo and history of IV drug use, in furnishing a negative nexus opinion. The examiner concluded it was less likely than not that the Veteran's acquired hepatitis C was associated with military service, adding "[t]he statistics are overwhelmingly in favor of a non-military origin for this condition." The examiner based this conclusion on the Veteran's clean bill of health at separation, the negative hepatitis C screen of 1993, the Veteran's own statements linking his condition to a long history of IV drug use, and the likelihood of transmission thereby. The Board accepts the March 2015 VA examiner's opinion as the most probative evidence of record on the question of etiology of hepatitis C in this case. The opinion is thorough, well-reasoned, and based on an in-person examination and comprehensive review of the medical file. The Board acknowledges that the Veteran is competent to describe symptoms that he is able to perceive through the use of the senses, and has considered his lay statements of record and his testimony. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). However, as a layperson without medical training, the Veteran is not qualified to render a medical diagnosis or medical opinion concerning the etiology of hepatitis C. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (noting that lay testimony is competent to establish observable symptomatology but not competent to establish medical etiology or render medical opinions.) As such, the Board affords greater probative weight to the above-detailed March 2015 VA examiner's opinion than to the lay statements of record with respect to the etiology of hepatitis C. The Board acknowledges the Veteran's testimony that some of his father's treatment records were commingled with his mistakenly. In reviewing the record, the Board was careful to ensure that the records relied on were solely the Veteran's, and not those of his father. Accordingly, the Board finds that service connection is not warranted in this case. The weight of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (noting that when all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.) As such, service connection for hepatitis C must be denied. 38 C.F.R. § 3.102 (2017). See also 38 U.S.C.A. § 5107(b) (West 2014). ORDER Entitlement to service connection for hepatitis C is denied. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs