Citation Nr: 1756955 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 04-38 589 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for hepatitis B and hepatitis C. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Christopher M. Collins, Associate Counsel INTRODUCTION The Veteran had active service from August 1981 to August 2001, with service in Southwest Asia. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. This matter was last before the Board in February 2017, whereupon it was remanded to the RO, via the Appeals Management Center (AMC) in Washington, D.C., for additional development. Following the issuance of a July 2017 supplemental statement of the case, the matter was returned to the Board for its adjudication. The Veteran was afforded a Travel Board hearing in March 2014. A transcript of the testimony offered at the hearing has been associated with the record. FINDING OF FACT The competent medical evidence does not demonstrate that the Veteran's hepatitis B and hepatitis C are attributable to any incident of service. CONCLUSION OF LAW Service connection for hepatitis B and hepatitis C is not warranted. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As a preliminary matter, the Board has reviewed the claims file and finds that there exist no deficiencies in VA's duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159; see also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (regarding the duties of a hearing officer); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159(b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification). The Board also notes that, to the full extent possible, VA complied with all prior remand instruction requests, and there exist no deficiencies in VA's duties to notify and assist in that regard. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order); but see D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required). Factual Background and Analysis The Veteran contends that he developed hepatitis B in service and that the condition was diagnosed when he was being treated at Walter Reed Medical Center in 1996. Additionally, he contends that he developed hepatitis C after service as due to his service. Upon review of the record, the Board finds that the preponderance of the evidence is against a determination that service connection is warranted for hepatitis B and hepatitis C. Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also 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). Establishing that a purported injury or disease is connected to service, such that a veteran is entitled to potential benefits, requires competent and credible evidence of the following three things: (1) a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship, i.e. a nexus, between the disease or injury in service and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). The Board, as fact finder, must determine the probative value or weight of the admissible evidence. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (citing Elkins v. Gober, 229 F.3d 1369, 1377 (Fed. Cir. 2000) ("Fact-finding in veterans cases is to be done by the Board")). VA must give due consideration to all pertinent medical and lay evidence in a case where a veteran is seeking service connection. 38 U.S.C. § 1154(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A review of the Veteran's service treatment records shows that the Veteran was never evaluated as having a history of hepatitis B and/or C on any of his periodic evaluations and especially on his separation examination in April 2001. There exists one notation that the Veteran reported having a positive test for hepatitis B on a November 1999 Dental Health Questionnaire, but that apparently occurred in May 1995. There also exists a January 1990 service record that showed a positive test for chlamydia, which is a risk factor for the development of hepatitis B and/or hepatitis C. Other than these two potential records suggesting that the Veteran may have developed hepatitis B and/or hepatitis C in service, the record is bereft of any indication that the Veteran's hepatitis B and C is directly attributable to his service. The earliest post-service treatment record which shows that the Veteran sought treatment for hepatitis B and/or C is a July 2007 VA outpatient record which lists chronic viral hepatitis B on the Veteran's problem list. Indeed, a December 2005 VA Gulf War examination indicates that the Veteran had negative tests for hepatitis B and hepatitis C at that time. Subsequent VA outpatient records continued to list chronic viral hepatitis B on the Veteran's active problem list as recently as August 2013. During the February 2011 hearing, the Veteran asserted that he tested positive for the hepatitis B antigen while he was being administered a tuberculosis test at Walter Reed Medical Center. According to the Veteran, he was told that there was no treatment necessary at the time and that he should continue to have his blood monitored periodically through VA. He acknowledged that to his knowledge he had never experienced any symptoms associated with the hepatitis B but did state that he was required to continuously monitor his liver function and take medications to ensure the health of his liver. The Veteran was first afforded a VA examination to evaluate the nature and etiology of his hepatitis B and hepatitis C in April 2015. He again reported that hepatitis B was first diagnosed in 1996 at Walter Reed Medical Center and that he has required continual monitoring to check for any symptoms. He endorsed symptoms of intermittent fatigue and arthralgia. After diagnostic examinations, the examiner confirmed a diagnosis of both hepatitis B and hepatitis C. Upon conclusion of the examination, the examiner found that it was less likely than not that the hepatitis B and hepatitis C were incurred in or otherwise attributable to service. In support thereof, the examiner noted the lack of medical records documenting a diagnosis of and treatment for hepatitis B in service, and further detailed that the first diagnosis of hepatitis B in the record was in 2007. Pursuant to the Board's March 2016 remand, the AMC obtained an addendum opinion in September 2016 from a new VA examiner regarding the etiology of the hepatitis B and hepatitis C. That examiner found that it was less likely than not that the hepatitis B and hepatitis C were incurred or otherwise attributable to service. Before discussing their rationale, the examiner acknowledged that they could not locate the in-service treatment records referenced by the Board in its March 2016 remand and thus could not provide a definitive opinion without resort to speculation. That being said, the examiner reviewed service treatment records, to include repeated liver enzyme and function testing in 2000, 2001, and 2002, all of which were normal and showed no positive hepatitis B or hepatitis C antigen. In conclusion, the examiner stated that although they could find no service treatment records showing a positive test for the hepatitis B antigen, they could not state with certainty that no such test existed as the Board had explicitly referenced a positive test in its remand. As the September 2016 examiner acknowledged that they could not state an opinion without resort to speculation, the Board in February 2017 remanded the matter in order to have either the September 2016 examiner or another qualified examiner issue a non-speculative opinion regarding the etiology of the hepatitis B and hepatitis C. That opinion was issued in April 2017. After a thorough review of the service treatment records, the examiner found no evidence that the Veteran was ever diagnosed with or treated for hepatitis B and/or hepatitis C while in service, other than a November 1999 dental treatment health questionnaire on which the Veteran reported that he tested positive for hepatitis B. The examiner also reviewed more recent medical records which showed that the Veteran reported having sexual intercourse with a partner who had hepatitis A as well as partners with hepatitis B and hepatitis C. Upon concluding their review of the record, the examiner opined that it was less likely than not that the Veteran incurred hepatitis B in service or that hepatitis B was otherwise attributable to service. The examiner acknowledged that the Veteran may have tested positive for nonreactive hepatitis B antibody at some point in service, but found no evidence that the reactive hepatitis B antigen had ever been found on testing until post-service laboratory results showed evidence of the reactive antigen. Moreover, the examiner noted the many liver function tests in service which all showed no abnormalities, suggesting that there was no actual viral infection in service. As for the hepatitis C, the examiner also found it less likely than not that it was incurred in service or otherwise attributable to service on the basis that there was no evidence that the Veteran had ever had a positive hepatitis C surface antigen test in the record. The examiner further commented that a history of high risk sexual behavior is not enough to diagnose hepatitis C. Upon consideration of the record, the Board finds that the preponderance of the evidence is against a finding that service connection is warranted for hepatitis B and hepatitis C. Although the Board acknowledges that the Veteran has consistently maintained that he was diagnosed with hepatitis B in service at Walter Reed Medical Center, and a November 1999 treatment record appears to corroborate that the Veteran was under the impression that he was diagnosed with hepatitis B, there is no competent medical evidence in the file which shows that the Veteran was actually diagnosed with hepatitis B. Instead, at most the record shows that the Veteran believed that he was diagnosed with hepatitis B at the time of the November 1999 treatment record. However, as the April 2017 VA examiner highlighted, the available in-service evidence tends to show that the Veteran was not afflicted with any symptoms of hepatitis B or hepatitis C at any time in service, which suggests that he did not have an active hepatitis B infection during service as he believed. The fact remains that at no point in service the Veteran was ever formally diagnosed with or treated for hepatitis B or hepatitis C. As a layperson, the Veteran is competent to describe the symptoms he believes are attributable to hepatitis B and hepatitis C and when he experienced those symptoms as well as when he believes he was first diagnosed with the conditions. Layno v. Brown, 6 Vet. App. 465, 469 (1994). That being said, there is no evidence in the record which indicates that he is competent through training or credentials to diagnose or conclude that his hepatitis B and hepatitis C were incurred in service or are otherwise attributable to service. Jandreau v. Nicholson, 491 F.3d 1372 (Fed. Cir. 2007). That type of medical determination is made through the use of clinical evaluations by a medical professional with the specialized education, training, or experience to offer an opinion regarding the etiology of a disease. The Veteran's assertions must be considered in light of the medical opinions of record. The Veteran has never submitted a statement from a medical professional in support of his contention that he developed hepatitis B during service, and the claims file is absent any documentation of the Veteran complaining of or being treated for symptoms of hepatitis B until 2007, about six years after his discharge from service. Hepatitis C was not noted until 2015, nearly 15 years after discharge from service. On the other hand, the Veteran has been evaluated by numerous VA medical examiners, who reviewed the claims file and found no objective medical evidence to support the Veteran's contention that he was actually diagnosed with hepatitis B in service. Indeed, the April 2017 examiner found copious evidence which suggested that even if the Veteran had a nonreactive hepatitis B antigen in service he had no symptomatology that reflected that he actually had an active hepatitis B infection in service. Furthermore, although the March 2015 and September 2016 VA examiners did not consider the November 1999 dental treatment record in which the Veteran reported his prior hepatitis B diagnosis, the April 2017 examiner explicitly discussed that record and considered it prior to issuing the negative opinion. As such, the Board finds the opinion of the April 2017 VA examiner to be highly probative of the issue at hand. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303 (2008) (a VA medical examiner's opinion must be supported by sufficient evidence and cannot necessarily rely solely on the claim file alone). In summation, the service treatment records are absent any reported symptoms of hepatitis B, and the claims file does not contain a formal diagnosis of hepatitis B until 2007. Although the Veteran has repeatedly asserted that he was diagnosed with hepatitis B in service, the lack of objective medical evidence to support this assertion makes his statements far less probative than those of the March 2015 examiner, September 2016 examiner, and especially the April 2017 VA examiner. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (holding that the Board can "weigh the absence of contemporaneous medical evidence against the lay evidence of record"). Accordingly, the Board finds that the preponderance of the evidence is against a grant of service connection on a direct basis pursuant to 38 C.F.R. § 3.303(a). The Veteran may still be entitled to service connection if all of the evidence establishes that hepatitis B and hepatitis C is otherwise attributable to service. 38 C.F.R. § 3.303(d). Here, however, there is no objective evidence of incurrence in service, and there is a six year gap between discharge and the diagnosis of hepatitis B and a nearly 15 year gap between discharge and the diagnosis of hepatitis C. The Board acknowledges that the Veteran has attested to being diagnosed with hepatitis B in service, but, without any documentation of said diagnosis and objective evidence suggesting that the Veteran did not actually have an active hepatitis B infection while in service, the Board cannot rely on the Veteran's statement and his report on the November 1999 dental treatment record alone. The Veteran may believe that he was diagnosed with hepatitis B in service, but the preponderance of the evidence shows instead that he was first diagnosed with hepatitis B some six years after service in 2007. As for hepatitis C, as discussed by the April 2017 examiner, the fact that the Veteran engaged in sexual activity that may have exposed him to sexually transmitted disease and received treatment for such in service does not equate to a diagnosis of hepatitis C, and is not sufficient to make a determination that hepatitis C is attributable to in-service sexual activity. Taken together, the opinions of the VA examiners along with the lack of any objective evidence showing that symptoms of hepatitis B manifested before 2007 and symptoms of hepatitis C manifested before 2015 far outweigh the Veteran's assertions. Thus, the Board finds that the preponderance of the evidence weighs against a finding that the Veteran's hepatitis B and hepatitis C is otherwise attributable to service. Service connection for hepatitis B and hepatitis C under 38 C.F.R. § 3.303(d) is denied, and as such the Veteran's claim of service connection for hepatitis B and hepatitis C in total must be denied. In summary, as the preponderance of the evidence is against the Veteran's service connection claim, the benefit-of-the-doubt standard of proof does not apply, and the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b). ORDER Entitlement to service connection for hepatitis B and hepatitis C is denied. ____________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs