Citation Nr: 1805425 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 12-13 532 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for hepatitis B and C. 2. Entitlement to service connection for a respiratory condition, to include emphysema. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Laura A. Crawford, Associate Counsel INTRODUCTION The Veteran served honorably in the United States Army from February 1963 to February 1966 and from May 1966 to May 1970, including two tours of duty in the Republic of Vietnam. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a May 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida In November 2014 and June 2017, the Board remanded this matter to the Agency of Original Jurisdiction (AOJ) for additional development. FINDINGS OF FACT 1. The Veteran's respiratory condition, to include emphysema, had its onset after and is not otherwise related to any incidents in service. 2. The Veteran's hepatitis B and C, had its onset after and is not otherwise related to any incidents in service. CONCLUSIONS OF LAW 1. The service-connection criteria for a respiratory condition, to include emphysema, have not been met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.310, 3.311 (2017). 2. The service-connection criteria for hepatitis B and C have not been met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.310, 3.311 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Veterans who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence of non-exposure. See 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to an herbicide agent during active service, certain enumerated diseases, including diabetes mellitus and ischemic heart disease, shall be presumptively service-connected even where there is no record of such disease during service, provided that the disease is manifested to a compensable degree as set forth in 38 C.F.R. § 3.307, and the rebuttable presumption provisions of 38 C.F.R. § 3.307 are met. See 38 C.F.R. § 3.309(e); see also 38 C.F.R. § 3.307(a)(6)(ii) (providing that with the exception of chloracne or other acneform disease, porphyria cutanea tarda, and early onset peripheral neuropathy, the diseases listed in 38 C.F.R. § 3.309(e) must be manifest to a degree of 10 percent or more at any time after service). The claimant bears the burden of presenting and supporting his claim for benefits. 38 U.S.C. § 5107(a); see Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). In its evaluation, the Board shall consider all information and lay and medical evidence of record. 38 U.S.C. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id. Another way stated, VA has an equipoise standard akin to the rule in baseball that "the tie goes to the runner." Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The benefit of the doubt doctrine is not applicable based on pure speculation or remote possibility. See 38 C.F.R. § 3.102. VA has confirmed that the Veteran had in country service in the Republic of Vietnam during the Vietnam Era, based on the Veteran's DD 214 Form reporting Republic of Vietnam service from January 1968 to January 1969. He is therefore presumed to have been exposed to herbicides during such service. However, with respect to the current appeal, hepatitis B and C and respiratory conditions, to include emphysema, are not among the disorders subject to presumptive service connection under 38 C.F.R. § 3.309(e). Accordingly, service connection for the claimed hepatitis B and C and a respiratory condition, to include emphysema, as presumed as due to in-service herbicide exposure is not warranted. Nonetheless, the regulations governing presumptive service connection for herbicide exposure do not preclude a veteran from establishing service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (1994). As such, the Board will adjudicate the claim on a theory of direct entitlement to service connection, and address the Veteran's contentions regarding secondary service connection. I. Hepatitis B and C The Veteran alleges his hepatitis B and C is related to in service events. With regard to a present disability, a VAMC examiner in August 2009 noted the Veteran had active hepatitis B and C infections. Further, VA examinations in February 2010, January 2015, and August 2017 note the Veteran was first diagnosed with hepatitis C in 1992 and continues to have an active diagnosis throughout the appellate period. Thus, the first element of service connection has been satisfied. In regards to an in service diagnosis, the Veteran's service treatment records (STRs) include no complaint, finding, or diagnosis related to hepatitis B or C. At separation, the Veteran's examination was normal and he did not endorse any relevant symptoms on report of medical history at discharge. Further, a March 1970 medical history report marked the Veteran had never been treated for liver disease including infectious hepatitis. However, the Veteran indicated during the January 2010 VA examination that he engaged in sharing of shaving razors during service. The Board finds no reason to doubt the Veteran's credibility, and the sharing of shaving razors in service is conceded. Moreover, as stated previously, the Veteran is presumed to have been exposed to herbicides in service. As such, the second element of service connection has been satisfied. Thus, the remaining question is whether there is a medical nexus between the Veteran's in service razor sharing and his current hepatitis B and C. However, the evidence of record does not support the Veteran's claim that his Hepatitis B and C is related to service. As noted, the STRs reflect no complaints, findings, or diagnosis of hepatitis or liver problems. Although post-service VA treatment records show a diagnoses of hepatitis B and C, the records do not attribute the Veteran's condition to blood exposure in service. Furthermore, the September 2017 VA examiner offered a negative opinion that the Veteran's blood exposure in service resulted in him acquiring Hepatitis B or C. The examiner explained that sharing razors, ionizing radiation, and gastric complaints are not known to transmit hepatitis B or C. Rather, the examiner attributed the Veteran's hepatitis to his other risk factors such as high risk sexual behavior, history of post-service substance use, and history of blood transfusion. As the opinion is by a medical professional (competent to offer it), reflects familiarity with the entire record, cites to supporting factual data, and includes rationale, it is probative evidence. As there is no competent evidence to the contrary, it is persuasive. In regards to the Veteran's exposure to Agent Orange being the cause of his hepatitis B and C, the February 2010 VA examiner opined these conditions have not been associated with Agent Orange exposure. The Board finds this opinion to also be persuasive. The Veteran's own lay opinion in this matter (that his hepatitis B and C is related to his service) is not probative evidence. Lay persons are competent to provide opinions on some medical issues; however, the diagnosis and etiology of hepatitis B and C is complex and could have multiple possible causes and thus, falls outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 429 F.3d 1372 (Fed. Cir. 2007). Without competent and credible evidence of an association between the Veteran's hepatitis B or C and his active duty, service connection is not warranted. As the preponderance of evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim of service connection for hepatitis B and C is denied. See 38 U.S.C. § 5107. II. Respiratory Condition, to include Emphysema With regard to a present disability, mild emphysema was diagnosed by a chest x-ray in 2009. Thus, the first element of service connection is satisfied. With regard to an in-service event, the Veteran's service treatment records do not show evidence of treatment for emphysema. The Veteran reported that he developed frequent or chronic colds in service and that he has an upper respiratory infection in December 1964. The Veteran also submitted evidence of exposure to ionizing radiation from March to April of an unspecified year during service. The Veteran is competent to report that he had a frequent or chronic colds that persisted during his time in service. Barr v. Nicholson, 21 Vet. App. 303, 307-308 (2007). Giving the benefit of the doubt to the Veteran, the Board finds that the second service connection element is met. See 38 U.S.C. § 5107 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). However, the evidence weighs against a nexus between the Veteran's in-service event or illness and his disability present during the appellate period. In August 2017, the Veteran underwent a VA examination, and in September 2017, the examiner provided an amendum to the August 2017 opinion. In August, the examiner assessed the Veteran, considered his file, and the Veteran's statements. The examiner noted that the Veteran was diagnosed with mild emphysema based on an x-ray in August 2009. However, the examiner opined that the Veteran's disability was less likely than not the result of an in-service event or illness. The examiner noted that there was no evidence of emphysema in service. The examiner noted that the Veteran had an acute lung condition and was exposed to ionizing radiation while in service, but opined this was not the causally related to the Veteran's respiratory condition. The examiner further supported his opinion by explaining that the Veteran's respiratory condition is most likely the related to the Veteran's 26 year history of smoking from ages 22 to 48. As such, the Board finds that the August and September 2017 evaluations have significant probative weight. The examiner based his opinion upon review of the record, lay statements, and an examination of the Veteran. Additionally, his opinion is consistent with the evidence of record notably that the Veteran did not receive treatment for emphysema during his service, and the first evidence of a respiratory diagnosis is in August 2009, which was approximately 39 years after leaving service. Further, as to any argument that service connection should be awarded because the Veteran began smoking in service or because he was supplied with cigarettes in service, the Board notes that for claims filed after June 9, 1998, as here, special provisions in the law relating to claims based upon the effects of the use of tobacco products during service provide that, notwithstanding any other provisions of law, a veteran's disability or death shall not be considered to have resulted from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service on the basis that it resulted from injury or disease attributable to the use of tobacco products by the veteran during the veteran's service. 38 U.S.C. § 1103 (2012); 38 C.F.R. § 3.330 (2017). Thus, there is no basis in law for granting service connection on a direct basis for any disability due to his tobacco use during the Veteran's period of service. Given that the objective evidence is against the finding of a nexus between the Veteran's in-service event or injury and the current disability, the Board finds that the third element of service connection is not met. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102 (2017). For these reasons, the claim is denied. The Board is grateful for the Veteran's honorable service, and this decision in no way detracts from the Veteran's service. Unfortunately, however, for the reasons and bases discussed above, the competent and probative evidence of record preponderates against a finding that the Veteran's hepatitis B and C or his respiratory condition are service connected. ORDER Entitlement to service connection for hepatitis B and C is denied. Entitlement to service connection for a respiratory condition, to include emphysema is denied. ____________________________________________ A. S. CARACCIOLO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs