Citation Nr: 18142796 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 06-01 048 DATE: October 17, 2018 ORDER Service connection for a liver disorder, to include hepatitis C, is denied. FINDING OF FACT The Veteran’s hepatitis C is not shown by the competent, credible, and probative evidence of record to be causally related to a disease, injury or event in service. CONCLUSION OF LAW The criteria for service connection for a liver disorder, to include hepatitis C, are not met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1967 to October 1970. The Veteran served in the Republic of Vietnam. This matter came before the Board of Veterans’ Appeals (Board) on appeal from the June 2005 rating decision of the Waco, Texas, Regional Office (RO). In August 2011, the Veteran was afforded a hearing before the undersigned Acting Veterans Law Judge sitting at the RO. A hearing transcript was prepared and incorporated into the record. By way of procedural background, in October 2016, the Board, in pertinent part, denied entitlement to service connection for a liver disorder, to include hepatitis C. The Veteran appealed the Board’s decision to the U.S. Court of Appeals for Veterans Claims (Court) and, in October 2017, the Court issued an Order that granted a Joint Motion for Partial Remand (JMR) which vacated the Board’s decision as to the issue of entitlement service connection for a liver disorder, to include hepatitis C. The Court returned this issue to the Board for appropriate action. The issue was again remanded by the Board in December 2017 in order to obtain an addendum opinion regarding the likely etiology of the Veteran’s hepatitis C. This has been accomplished and the claim has now been returned to the Board for consideration. The Board also notes that in a separate December 2017 decision, the Board remanded the issues of entitlement to an earlier effective date for the grant for service connection or posttraumatic stress disorder (PTSD), and entitlement to an earlier effective date for the grant of a 30 percent rating for PTSD. These issues are part of a separate appeal stream. Further, the ordered development has not been completed and the claims have not been re-adjudicated by the agency of original jurisdiction (AOJ). As such, these issues are not currently before the Board at this time. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may 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). Only chronic diseases listed under 38 C.F.R. § 3.309 (a) (2017) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b). Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57(1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382(1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment, including by a veteran. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner’s opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). 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. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Service Connection Analysis for a Liver Disorder The Veteran maintains that he was infected with hepatitis C during service. Specifically, he has reported numerous possible exposures or risk factors for hepatitis C, including surgery to remove his tonsils in January 1968, unprotected sex and venereal diseases during service, a human bite during service with residual scar, getting his ear pierced while in Vietnam, shared razors and toothbrushes during service, getting stitches in his lip while in the brig in 1970, jet air gun injections during service, and drug use during and after service. For the reasons discussed in detail below, the Board finds that the Veteran’s currently diagnosed hepatitis C is not shown by the competent, credible, and probative evidence of record to be causally related to a disease, injury or event in service. Service treatment records are absent for any diagnoses or treatment for a liver disorder, to include hepatitis C. In a June 1970 report of medical history, conducted at service separation, the report indicated that the Veteran had “VD” in 1967, 1968, and 1969. However, in the report of medical examination, completed at service separation, there was no indication of a liver disorder or hepatitis C. In an October 1970 service treatment record, urinalysis showed light white blood cells, but no bacteria. Post-service VA treatment records show no diagnoses or complaints of a liver disorder until 2004, more than 30 years following service separation. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor for consideration in deciding a claim). A June 1984 VA treatment record shows that the Veteran was seen for a body rash. Subsequent June 1984 laboratory tests ruled out chronic hepatitis. The Board notes that this laboratory test result did not specifically rule out hepatitis C as the virus was not discovered until 1989. The evidence also includes a May 2005 VA examination. During the evaluation, the Veteran reported that his hepatitis C was due to being bitten in Vietnam by another person, which required a blood transfusion. He also claimed that he was given frequent injections in service to prevent various diseases and which the Veteran maintained could have been the source of his hepatitis C. The examiner reviewed the claims file and diagnosed the Veteran with hepatitis C. The examiner then indicated that the etiology of the Veteran’s hepatitis C was unknown. According to the examiner, the medical literature did not support a finding that injections received in the military during the timeframe indicated by the Veteran were a source of the hepatitis C virus. The Veteran was afforded another VA examination in July 2012. During the evaluation, the Veteran stated that he believed that he was exposed to hepatitis C via blood transfusions while in service in 1967 before deployment and during a hospitalization for acute tonsillitis. He also stated that he was bitten in Vietnam and had multiple sexual partners. The Veteran stated that he also shared razors and toothbrushes with fellow army soldiers in the past. After a review of the claims file, the examiner opined that the Veteran currently had active hepatitis C diagnosed in 2004. It was noted that the Veteran’s hepatitis C developed more likely than not after service and was unrelated to active duty. In support of this opinion, the examiner stated that service treatment records contained no documentation of any high risk behaviors or exposures or transfusions which may have predisposed the Veteran to the development of hepatitis C. The first documented evidence of the condition was in 2004, which was 34 years after service separation. A medical opinion was obtained in June 2014. The examiner reviewed the claims file, to include service treatment records and post-service treatment records. The examiner then stated that there was a paucity of data reflecting exposure to blood-borne pathogens that could have resulted in the development of hepatitis C. The report of a blood transfusion for a tonsillectomy was not substantiated. According to the examiner, it would be “very rare” that a blood transfusion would be required for a tonsillectomy unless there were medical misadventure or complication, and the record did not reflect such complications. Further, a review of the October 1970 service treatment record included a notation of “GC,” however, the examiner indicated that there was no clinical evidence of the actual confirmed diagnosis of gonococcus or gonorrhea. The urinalysis from that day also showed light white blood cells, but no bacteria. The service separation physical showed normal urinalysis. Based on this evidence, the examiner indicated that there was no confirmation of any sexually transmitted disease, only a suspicion based on history. Further, the examiner indicated that, the first evidence of hepatitis C was in 2004, more than 34 years after service separation. Renal function and electrolytes from 2001 were normal. Based on the available evidence, there was no indication that the Veteran’s 2004 diagnosis of hepatitis C was related to exposure on active duty, including the reported venereal disease (which was not fully substantiated as described above). Accordingly, the examiner opined that the Veteran’s claimed liver condition and hepatitis C was not at least as likely as not related to service. In order to address all of the Veteran’s possible exposures or risk factors for hepatitis C, VA obtained an addendum medical opinion in January 2018 (provided by the June 2014 examiner). The examiner indicated that he had again reviewed the entire claims file, including previous VA examinations, service treatment records, and relevant post-service treatment records. Regarding the Veteran’s claimed surgery to remove his tonsils in January 1968 and the claimed associated blood transfusion, the VA examiner stated that the claimed blood transfusion was not substantiated. Moreover, the examiner reiterated that blood transfusions were “very rare” unless there was a medical misadventure or complication, which was not documented in the record. As it pertained to unprotected sex and venereal disease, the examiner stated that the October 1970 service record noted a history of “GC,” however, there was no clinical evidence of an actual confirmed diagnosis of gonococcus or gonorrhea. The urinalysis form that day showed a light white blood cell, but no bacteria. The examiner stated that this was not a confirmation of a STD, nor was it confirmation of hepatitis or a liver disorder. The separation physical also showed a normal urinalysis. Moreover, the service separation medical history report also noted “NO” as to any stomach, liver, or intestinal trouble. The examiner did acknowledge that there was a note at service separation indicating “VD, GC in 1968-1969.” However, there was no evidence that this was a confirmed diagnosis. As it pertains to the Veteran’s claimed report of sustaining a human bite, ear piercing, shared razors and toothbrushes, and stitches to the lip, the examiner noted that the evidence did not support these contentions in available service treatment records. The examiner noted that, although these above listed risk factors were “possible routes” of bloodborne pathogen exposure, there was no evidence to support that any of these were the cause of hepatitis. Instead, the first evidence of hepatitis C was in 2004, 34 years following service separation. There was also no evidence of any hepatitis-like episode in or after service (until 2004). Notably, renal function and electrolytes from 2001 were normal. When taken together the Board finds that the VA medical opinions discussed above are probative and weigh against the Veteran’s claim. The examiners reviewed the claims file, discussed all of the Veteran’s contentions regarding risk factors for hepatitis, and provided opinions supported by well-reasoned rationales. See Prejean,13 Vet. App. at 448-9. The Board has also considered the Veteran’s statements regarding the circumstances of how he purportedly contracted the hepatitis C virus. Although the Veteran is competent to report events that he experienced during service (e. g., being bit by another person, ear piercing, unprotected sex, etc.,), the Board finds that his statements are outweighed by the competent medical evidence of record. In this regard, and as noted above, service treatment records are absent for any diagnoses or treatment for a liver disorder, to include hepatitis C. Service treatment records also contain no documentation of any high risk behaviors or exposures or transfusions which may have predisposed the Veteran to the development of hepatitis C. The January 2018 VA examiner also indicated that there was no evidence of any hepatitis-like episode in service. As it pertains to the Veteran’s claimed blood transfusions in service, there is absolutely no medical evidence confirming these procedures. As noted by the January 2018 VA examiner, blood transfusion are “very rare” unless there is a medical misadventure or complication, which was not documented in the record. The Board finds that, had the Veteran undergone blood transfusions in service, it would be reasonable to assume that such a procedure would have been documented by the medical staff or at service separation. The Board finds that the Veteran’s contemporaneous service treatment records are more probative than his recent assertions that his hepatitis C had its onset in service, voiced many years after service and in connection with a claim for disability benefits. Moreover, the Board finds that some of the Veteran’s statements regarding possible risk factors of hepatitis C have been inconsistent, and therefore, are not credible. For example, during the August 2011 Board hearing, the Veteran testified that he contracted hepatitis C in service, most likely in Vietnam through unprotected sex with multiple partners, shared razors and toothbrushes, or during a period of incarceration in an unsanitary German military facility in 1970 where he was assaulted and received stitches with unclean needles. Notably, the Veteran denied the use of intravenous or illegal drug use. However, in an April 2005 VA treatment record, the Veteran stated that he possibly got hepatitis C after being bit by another person in Vietnam with a consequent blood transfusion. Further, although the Veteran denied the use of intravenous or illegal drug use during the August 2011 Board hearing, in an August 2009 VA PTSD examination it was noted that the Veteran had a history of barbiturate abuse, marijuana, LSD, heroin, prescription pills, hashish, and other drug use up until 1982. In an undated PTSD Questionnaire (received by VA in September 2005), the Veteran specifically reported that he could not keep a job and was “using drugs to forget.” The Board acknowledges the October 2017 JMR, where the parties agreed that the Board erred when it failed to provide an adequate statement of reasons or bases to support its finding that the Veteran was not credible regarding all of his possible in-service hepatitis C risk factors. In this regard, the Board’s October 2016 decision found the Veteran’s statements regarding the alleged risk factors “inconsistent” and “not credible.” According to the JMR, the Board’s conclusion focused exclusively on the Veteran’s statement regarding “intravenous or illegal drug use.” The JMR noted that the Board failed to adequately address the credibility of the multiple other possible risk factors. In addressing the parties’ contentions in the JMR regarding the Veteran’s credibility, the Board references a portion of the Federal Rules of Evidence, Rule 801(d)(1)(A). Although the formal Rules of Evidence do not apply in the VA benefits system, the Court has indicated that recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the adjudicator’s decision. Rucker v. Brown, 10 Vet. App. 67, 73 (1997); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008) (where the Court held that the rules on expert witness testimony delineated in the Federal Rules of Evidence provide “important, guiding factors to be used by the Board in evaluating the probative value of medical opinion evidence.”). Pursuant to Federal Rule of Evidence 801(d)(1)(A), statements are not hearsay when a declarant testifies at trial or at a hearing and is subject to cross-examination about a prior statement, and the statement is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition. Federal Rules of Evidence, Rule 801(d)(1)(B). The Board finds this Rule to be consistent with VA case law. See Caluza v. Brown, 7 Vet. App. 498 (1995) (in weighing credibility, VA may consider bias, inconsistent statements, self-interest, and desire for monetary gain). In this case, the Board finds that the Veteran’s inconsistent statements regarding his use of intravenous drug use cast doubt on the general credibility of his statements. The Board need not find all statements to be inconsistent in order to find the Veteran not credible. Notably, this credibility determination is not solely limited to his intravenous drug use, but to his credibility in general. The Veteran’s inconsistency regarding his intravenous drug use ultimately undermines the general credibility of his statements. In sum, the Board finds that the Veteran’s currently diagnosed hepatitis C is not shown by the competent, credible, and probative evidence of record to be causally related to a disease, injury or event in service. For these reasons, the Board finds that a preponderance of the evidence is against the claim of service connection for a liver disorder, to include hepatitis C, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. T. D. JONES Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Casadei, Counsel