Citation Nr: 1716612 Decision Date: 05/16/17 Archive Date: 05/22/17 DOCKET NO. 11-16 512 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for liver disease. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from September 1976 to March 1977. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran presented testimony at a Board hearing in March 2016, and a transcript of the hearing is associated with his claims folder. The case was previously before the Board in July 2016, at which time the issue of service connection for liver disease was remanded to the RO, and final decisions were rendered on issues of service connection for pulmonary, lumbar spine, hypertension, and psychiatric disorders. FINDING OF FACT The Veteran's current liver disease was not manifest in service and is unrelated to service, to include jet gun vaccinations in service; if he has cirrhosis of his liver, it was not manifest to a degree of 10 percent within 1 year of separation. CONCLUSION OF LAW The criteria for service connection for liver disease are not met. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran appeals the RO's May 2009 denial of service connection for liver disease. With respect to such claim, VA has met all statutory and regulatory notice and duty to assist provisions, and it has not been contended otherwise. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). 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. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Service connection may be awarded on a presumptive basis for certain chronic diseases listed in 38 C.F.R. § 3.309(a) that manifest to a degree of 10 percent within 1 year of service separation or during service and then again at a later date. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed.Cir.2013). Cirrhosis of the liver is listed as a chronic disease. Evidence of continuity of symptomatology may be sufficient to invoke this presumption if a claimant demonstrates (1) that a condition was "noted" during service; (2) evidence of postservice continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet.App. 488, 496-97(1997)); see 38 C.F.R. § 3.303(b). Service treatment records are silent for reference to liver problems, and on service submarine examination in October 1976, the Veteran reported that he was in good health and that he had not had liver trouble, jaundice, or hepatitis. His liver evaluation was clinically normal at that time. In January 2008, it was noted that the Veteran was confirmed positive for hepatitis C by antibody screening test. He had elevated liver function tests suspected to be secondary to hepatitis C and alcohol. In a January 2008 Hepatitis C Entry Interview, it was indicated that based on Hepatitis C Questionnaire responses, the estimated time of the Veteran's Hepatitis C infection was 1994, and the probable mode of infection was injection of intravenous drugs from 1994 to 2006. A March 2008 right upper quadrant ultrasound was consistent with cirrhosis, fatty infiltration, or chronic hepatitis. An April 2008 private medical record indicates that the Veteran was drinking significant amounts of alcohol for the past 3 years and that his liver function tests seemed to reflect that. Chronic Hepatitis C was diagnosed. There are 2008 to 2011 medical assessments of record indicating that the Veteran's hepatitis C was contracted in approximately 1994 from intravenous drug abuse. During the Veteran's March 2016 hearing, he testified that he felt that he developed Hepatitis C in boot camp about 37 or 38 years ago when they gave him vaccinations using vaccination guns for both arms. He did not notice them cleaning the guns between individuals vaccinated. He indicated that he was not treated for Hepatitis C in service. He first noticed that he had it a few years back. He was treated by VA. He testified that he gave himself shots and pills for 6 months and that after six months, he took another blood test and he was clear. In July 2016, the Board remanded the claim for a VA examination, including to address the matter of whether the Veteran's liver disease was manifest in service or within 1 year of separation or is related to service, to include as due to jet gun vaccinations in service. In August 2016, a VA examiner reviewed the Veteran's medical history in detail, and found that the Veteran had hepatitis C, and not cirrhosis of his liver. The examiner noted that the Veteran had a negative liver biopsy in June 2008 and that the Veteran's liver function tests cleared after he was off of alcohol following October 2014 VA advice to abstain. The examiner reported that the Veteran's hepatitis C was diagnosed post-service, and that he had a history of intravenous drug abuse which started after service in the 1980s. The examiner opined that the Veteran's hepatitis C was not caused by or a result of service, to include as due to jet gun vaccinations in service. The examiner explained that there was no objective medical evidence that the Veteran's hepatitis C was manifest in service or within 1 year of separation, or that it is related to service, to include jet gun vaccinations in service. The examiner opined that given the Veteran's longstanding significant continuous post-service substance abuse with a history of intravenous drug abuse and hepatitis C diagnosed in the 1990's, his liver disease was not caused by or a result of service, to include jet gun vaccinations in service. The examiner opined instead that the Veteran's current liver disease issues are caused by or a result of his ongoing polysubstance abuse and dependency. Based on the evidence, the Board concludes that service connection is not warranted for the Veteran's current liver disease, which appears to be hepatitis C without cirrhosis. The preponderance of the evidence including the negative service treatment records, the January 2008 Hepatitis C Entry Interview, and the recent VA medical opinion indicates that it was not manifest in service and is unrelated to service, to include jet gun vaccinations in service. It was first manifest after post-service alcohol and intravenous drug abuse, and the VA examiner in August 2016 reviewed the Veteran's longitudinal history and concluded that the Veteran's current liver issues were caused by or a result of his ongoing polysubstance abuse and dependency. This is consistent with other medical evidence of record including 2008 to 2011 assessments that the Veteran's hepatitis C was contracted in approximately 1994 from intravenous drug abuse. There is some evidence that the Veteran may have cirrhosis of his liver, although the preponderance of the evidence seems to indicate that he does not. This includes the 2016 VA examiner's opinion which was based on a longitudinal review of the evidence. Even if he does have cirrhosis of his liver, however, service connection would not be warranted for it, as it was not manifest in service or within 1 year of service separation and the preponderance of the evidence is against a finding that it is related to service. While the Veteran may feel that his liver disease is due to in-service jet gun injections, his opinions on this complex medical matter are not competent, as he is a layperson and medical expertise is required. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran's representative asserted in January 2017 that the Veteran has submitted credible evidence to support his contentions and that there is objective evidence of his current liver disease in service, but in fact, the record does not reveal objective evidence of liver disease in service. Unfortunately, these are merely contentions without any support in the record. The preponderance of the evidence is against the claim and there is no doubt to be resolved. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). While the Board finds that it cannot grant the benefits sought on appeal, it would like to thank the Veteran once again for serving his country honorably. ORDER Service connection for liver disease is denied. ______________________________________________ M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs