Citation Nr: 1803775 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 11-02 363 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Hammad Rasul, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1974 to June 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In April 2017, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. The instant matter was before the Board in June 2017 at which time the application to reopen the claim for service connection for hepatitis C was granted and the claim was remanded on the merits for further development. After completing the requested development, the Appeals Management Center (AMC) issued a supplemental statement of the case (SSOC) in July 2017 in which it continued to deny the Veteran's claim for service connection for hepatitis C. The matter was again before the Board in October 2017 at which time it was remanded for further development. After completing the requested development, the AMC issued a SSOC in December 2017 in which it continued to deny the Veteran's claim for service connection for hepatitis C. FINDING OF FACT The weight of the evidence reflects that hepatitis C did not manifest during service and that hepatitis C is not related to active service, other than as a result of drug use from which such disease cannot be deemed to have been incurred in line of duty. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for hepatitis C are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits pursuant to 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. VA's duty to notify has been satisfied through a notice letter dated January 2010, which fully addressed all notice elements. Specifically, this letter informed the Veteran of what evidence was required to substantiate his claim for service connection, of the Veteran's and VA's respective duties for obtaining evidence, and the process by which disability ratings and effective dates are assigned. VA must also make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claims, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Service treatment records (STRs) are associated with the claims file. All post-service treatment records and reports identified by the Veteran related to the claim decided herein have also been obtained. Pursuant to the October 2017 remand, a medical opinion as to the etiology of the Veteran's hepatitis C was rendered. Given that the reviewer offered a cogent opinion, which was supported by an in-depth rationale, the opinion is adequate for determining the service connection issue on appeal. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board acknowledges that the VA examiner indicated that the evidence does not support a claim for hepatitis C due to service "without resorting to speculation." As will be discussed in greater detail below, when read as a whole and in the context of the evidence of record, it is clear that the examiner was not saying he could not offer an opinion without resort to speculation. See Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record); see also Monzingo v. Shinseki, 26 Vet. App. 97, 105, (2012) (noting an examination is adequate when it "sufficiently inform[s] the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion"). As such, although the phrase "without resorting to speculation" appears in the opinion, it does not render the opinion inadequate as it was not the equivalent of one in which the physician indicated she could not offer an opinion without resort to speculation. See Jones v. Shinseki, 23 Vet. App. 382 (2010). Rather, the physician indicated that the evidence did not support the claim, and only a resort to speculation could warrant a finding to the contrary. The fact that the examination and opinion were adequate also reflects that there was compliance with the Board's prior remand instruction to obtain an adequate medical opinion. See Stegall v. West, 11 Vet. App. 268 (1998). The duty to assist has therefore been satisfied and there is no reasonable possibility that any further assistance to the Veteran by VA would be capable of substantiating his claim. In light of the foregoing, no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. II. Analysis The Veteran contends that he suffers from hepatitis C as a result of either an outbreak during service at Fort Hood or because of air gun vaccinations provided during service. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). "To establish a right to compensation for a present disability, a Veteran 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"- the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Specific to claims for service connection for hepatitis C, risk factors for transmission include the following: blood or blood product transfusion or organ transplant before 1992, or hemodialysis; tattoos, body piercing, and acupuncture with non-sterile needles; intravenous drug use; high-risk sexual activity (transmission risk is relatively low, but increases with multiple sexual partners); intranasal cocaine use; accidental exposure to blood by percutaneous exposure or on mucous membranes; and sharing toothbrushes or shaving razors. In addition, despite the lack of any scientific evidence to document transmission of hepatitis C virus with air gun injectors, it is biologically possible. See M21-1 VA Adjudication Procedures Manual, Part III, Subpart iv, Chapter 4, Section 1, Subsection 2.e (updated August 17, 2016). During the April 2017 Board Hearing, the Veteran testified that he believed there were two possible ways that he could have contracted hepatitis C during service. He stated that there were "shots they gave everybody" and there was an outbreak of hepatitis C at Fort Hood in 1975. The Veteran also stated that he was diagnosed with hepatitis C in or close to 2007. The Veteran's STRs are silent for any reference to or treatment for hepatitis C. In a July 2017 VA examination report, the examiner diagnosed the Veteran with hepatitis C. The examiner marked intravenous drug use or intranasal cocaine use as one of the risk factors. The examiner opined that the Veteran's hepatitis C is less likely than not incurred in or was caused by the claimed in-service injury, event, or illness. The examiner reasoned that there is not enough information to determine if the liver condition is related to the Veteran's period of active service. In a November 2017 VA medical opinion, the physician opined that it is less likely as not that the Veteran's hepatitis C was incurred in or is otherwise related to service. The physician reasoned that the Veteran's contention that hepatitis C resulting from air gun vaccinations during service and lay statements regarding an outbreak of hepatitis C at a dining facility at Fort Hood were considered, however, the examiner concluded that there was insufficient evidence to support the claim. Instead, the physician reasoned that the Veteran's long history of drug use, to include cocaine, barbiturates, and speed are well known risk factors of hepatitis C infection and were likely the source of Veteran's hepatitis C. The physician wrote that correlating the Veteran's hepatitis C diagnosis with his service would be pure speculation and that the evidence indicates the Veteran's drug use as a more likely etiology for his hepatitis C. As an initial matter, the Board notes that the Veteran has been diagnosed with hepatitis C. As such, the Board finds the current disability element is established. Upon review of the foregoing evidence, the Board concludes that the weight of the evidence of record is against a finding that the Veteran's hepatitis C is related to any injury, event, or disease in service. Here, the November 2017 VA reviewer's conclusions are shown to have been based upon a review of the Veteran's claims file, physical examination, and acknowledgement of the Veteran's lay statements regarding the onset and continuity of his symptoms. Moreover, the opinion is supported by a sufficient explanation and reference to pertinent evidence of record, and the conclusions are consistent with the evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The Board notes that the November 2017 VA physician used the phrase "...correlating his hepatitis C diagnosis with his service will be pure speculation" in the opinion. However, despite this verbiage, the opinion did not run afoul of Jones v. Shinseki, 23 Vet. App. 382, 390 (2009), in which the Court held that, before the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence, it must also be clear that the physician has considered "all procurable and assembled data," and the physician must clearly identify precisely what facts cannot be determined. The November 2017 VA reviewer did not state that an etiology opinion would be speculative; rather, she rendered an opinion that it was less likely than not that the Veteran's hepatitis C was related to service. In reaching this conclusion, she considered the Veteran's other risk factor of extensive history of drug use. She noted that medical literature supported a strong cause and effect relationship between hepatitis C and drug use, but did not support such a relationship between hepatitis C and the Veteran's bare statements without further proof supporting the Veteran's statements that hepatitis C was a result of an outbreak at Fort Hood or as a result of air gun vaccinations provided during service. Thus, she concluded that it would be speculative to attribute the Veteran's hepatitis C to his service based on the Veteran's contentions without further evidence and therefore, it was less likely as not that the Veteran's hepatitis C was related to his service. Reading the opinion as a whole and in the context of the evidence of record, the reviewer's conclusion was neither speculative nor indicative that she could not render an opinion without resort to speculation. Acevedo, 25 Vet. App. at 294. Instead, it is clear that the physician indicated that such a positive association (i.e. between the Veteran's hepatitis C and his contentions of in-service outbreak at Fort Hood or through air gun vaccinations) would be speculative given the facts of this case. The Veteran during his April 2017 Board hearing stated that he believed that his hepatitis C was related to service due to air gun vaccinations provided in service or through an outbreak of hepatitis C at Fort Hood. However, this bare statement, without further support or explanation, has little or no probative value. See Nieves-Rodriguez, 22 Vet. App. at 304. Further, to the extent that the bare statement is probative, it is outweighed by the opinion provided by the November 2017 physician, who reasoned that drug use, to include use of cocaine, as a risk factor is more likely the cause of the Veteran's hepatitis C. In addition, the statements of the Veteran that relate hepatitis C to service relate to an internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. See Jandreau v. Nicholson, 492 F.3d at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). To the extent that the Veteran's statements are competent, the Board finds that the specific, reasoned November 2017 opinion of the VA physician is of greater probative weight than the lay statements of the Veteran. Finally, service connection for hepatitis C cannot be granted if attributable to drug use during service. 38 C.F.R. § 3.301(d) (a disease incurred during service is not considered to have been incurred in line of duty if such disease was a result of the abuse of drugs, i.e., the use of illegal drugs, by the person on whose service benefits are claimed). For the foregoing reasons, the preponderance of the evidence is against the claim for entitlement to service connection for hepatitis C. The benefit of the doubt doctrine is therefore not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for hepatitis C is denied. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs