Citation Nr: 18145689 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 12-35 048 DATE: October 29, 2018 ORDER Service connection for Hepatitis C is denied. FINDING OF FACT The Veteran has not been shown to have Hepatitis C at any time since he filed his claim to reopen in March 2010 or within close proximity thereto. CONCLUSION OF LAW The criteria for entitlement to service connection for Hepatitis C have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1971 to May 1974. In February 2015, the Board denied reopening the claims of entitlement to service connection for Hepatitis A and for Hepatitis B, but determined that new and material evidence had been received to reopen the claim of entitlement to service connection for Hepatitis C and remanded that issue for additional evidentiary development. The remaining issue on appeal has been returned to the Board for further appellate review. In the December 2012 substantive appeal, VA Form 9, the Veteran requested a hearing before the Board at the local Regional Office (RO). In June 2014, the Veteran was notified by letter that he was scheduled for a hearing before the Board at the RO in Huntington, West Virginia in September 2014. In a July 2014 VA Form 21-4138, the Veteran reported he had no transportation to Huntington and requested the hearing location changed to the Clarksburg Louis Johnson VA Medical Center. The Veteran failed to appear for the scheduled September 2014 hearing and there is no indication the hearing location was changed. The Veteran’s request to withdraw his hearing request was received in August 2018. 38 C.F.R. § 20.704(d) (2018). There was substantial compliance with the February 2015 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, in an October 2015 notice letter, the Veteran was requested to authorize VA to obtain any outstanding medical treatment records pertaining to his claim on appeal, to include his alleged risk factors for Hepatitis C in service. As of this date, the Veteran has yet to respond to this request. The Veteran was provided a VA Disability Benefits Questionnaire (DBQ) examination for hepatitis, cirrhosis, and other liver conditions in December 2015 and medical opinion in February 2016. The case was readjudicated in a July 2016 supplemental statement of the case (SSOC). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to service connection for Hepatitis C Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. § 1110. Service connection may be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In a July 2001 VA Form 21-4138 (Statement in Support of Claim), the Veteran reported having, in part, Hepatitis C for at least four years and believed it developed “from the guns the Army used to give shots.” In February 2002, the Veteran submitted a VA Form 21-526 formally requesting service connection for, in part, Hepatitis C. The issue for entitlement to service connection for Hepatitis C was denied in a July 2002 VA rating decision. In a March 2010 VA Form 21-4138, the Veteran requested to reopen his previously denied claim of service connection for, in part, Hepatitis C. As noted in the February 2015 Board decision, new and material evidence had been received since the final July 2002 VA rating decision to reopen the claim of entitlement to service connection for Hepatitis C. As previously noted, the Veteran was afforded a VA DBQ examination for hepatitis, cirrhosis, and other liver conditions in December 2015. The Veteran reported he found out he had Hepatitis C in 2002. Following the clinical evaluation and review of the claims file, the VA examiner noted the Veteran’s diagnosis of Hepatitis C in 1997 and concluded that “review of lab work in relation to the Hepatitis C indicates no evidence of chronic active hepatitis.” The examiner also noted that approximately 15 to 25 percent of people “…clear the virus from their bodies without treatment and do not develop chronic infection….” Review of VA treatment records throughout the appeal period documents the Veteran’s history of Hepatitis C noted in January 2012. August 2012 diagnostic testing results revealed “unremarkable ultrasound of the liver.” In July 2015 and March 2016, the Veteran’s prior medical history noted chronic Hepatitis C with low viral load disability in 2002, and the physician concluded the current assessment of the Veteran revealed chronic Hepatitis C with low viral load in July 2001, viral load rechecked in July 2012 – non- detected, and normal liver in August 2012. A January 2016 addendum record noted that testing was performed in January 2016 for Hepatitis C Virus (HCV) ribonucleic acid (RNA) quantitative (QUAN) polymerase chain reaction (PCR) was “not detected” and the Veteran does not have Hepatitis C. In March 2016 his physician stated, “[h]e does not have Hep. C.” Based on the evidence of record, there is no probative and competent evidence that demonstrates a current disability during the appeal period. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. As a result, the Board finds that the record does not contain a current disability to establish that the first criterion to establish service connection on a direct basis has been met. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (“Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability,” and held that “[i]n the absence of proof of a present disability[,] there can be no valid claim.”); Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). The most probative evidence of record reflects the Veteran has not been shown to have a current diagnosis of Hepatitis C at any time since he filed his claim to reopen in March 2010 or within close proximity thereto. The Board has considered the Veteran’s reported history of symptomatology related to his Hepatitis C throughout the appeal period. He is competent to report such symptoms and observations because this requires only personal knowledge as it comes through one’s senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Because there is no universal rule as to competence on this issue, the Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person to provide an opinion as to etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 -77 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011). In this case, the Veteran’s statements do not rise to a level of competency to offer a probative opinion as to whether he has Hepatitis C. Diagnosing Hepatitis C requires inquiry into internal physical processes that are not readily observable and are not within the competence of the Veteran in this case, who has not been shown by the evidence of record to have medical training or skills. Additionally, laboratory testing is needed to confirm a diagnosis of Hepatitis C. Upon clinical evaluations, no diagnosis of Hepatitis C has been provided during the appeal period or within close proximity thereto. As a result, the probative value of the Veteran’s lay assertions is low. The Veteran asserts that he has Hepatitis C specifically due to vaccines he received via air gun while serving in the military. The Board need not reach this contention because the claim is being denied because the Veteran does not have Hepatitis C, as discussed above. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against this claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Carter, Counsel