Citation Nr: 18151998 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 17-47 024 DATE: November 20, 2018 ORDER Service connection for hepatitis C is denied. FINDING OF FACT The Veteran’s hepatitis C was not caused by or related to active duty service. CONCLUSION OF LAW The criteria for service connection for hepatitis C have not been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1980 to January 1983. 1. Entitlement to service connection for hepatitis C The Veteran asserts that his hepatitis C was caused by or is related to his active duty service. 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, 1131. 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). Service connection may only be granted for a current disability, and therefore, when a claimed condition is not shown, there may be no grant of service connection. 38 U.S.C. § 1110; Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). “In the absence of proof of a present disability there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Initially, the Board notes that the Veteran filed a claim seeking service connection for “hepatitis.” The Board has reviewed the Veteran’s available medical treatment records and found no evidence of a present diagnosis of or treatment for hepatitis A or hepatitis B. Therefore, because the evidence does not show a present diagnosis of or treatment for hepatitis A or hepatitis B, he cannot establish the existence of a current disability and service connection is not warranted for hepatitis A or hepatitis B. See 38 U.S.C. § 1110; Rabideau v. Derwinski, 2 Vet. App. 141 (1992); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Next, based upon the evidence of record, the Board concludes that although the Veteran has a current diagnosis of hepatitis C, the preponderance of the evidence weighs against finding that his hepatitis C began during service, or is otherwise etiologically related to service. 38 U.S.C. 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. 3.303(a), (d), 3.304, 3.307, 3.309. First, the service treatment records fail to establish that the Veteran’s hepatitis C was incurred in or is related to service. Although an April 1981 service treatment record reflects that the Veteran was exposed to “hepatitis” between March 1981 and April 1981 and received gamma globulin intramuscularly as a prophylactic measure, no service treatment records reflect that the Veteran sought treatment for any form of hepatitis, including hepatitis C, or that he reported symptoms caused by or related to any form of hepatitis, including hepatitis C. In fact, at a May 1987 reenlistment examination, the examining physician determined that all systems and body part examined were normal, and noted that the Veteran was a “healthy individual.” Further, the post-service evidence does not indicate that the Veteran has experienced continuous symptoms related to his hepatitis C since active duty service. The treatment records reflect that the Veteran first sought treatment for hepatitis C in March 2011, more than 28 years after his separation from active duty service and almost 30 years after his exposure to hepatitis. Moreover, during the March 2011 evaluation where he first sought treatment for hepatitis C, he denied any prior knowledge of liver disease, jaundice, or other signs or symptoms of acute or chronic hepatitis. He also denied any history of gastrointestinal bleeding, ascites, or symptoms of hepatic encephalopathy. Therefore, continuity of symptoms based upon the clinical evidence is not sufficient to support a direct nexus. The Board acknowledges the statements from the Veteran relating the symptoms of his hepatitis C to his active duty service. While he is competent to report that he experienced symptoms, he is not competent to provide a diagnosis or determine that these symptoms were manifestations of a particular disorder. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Nevertheless, to the extent that he asserts that his hepatitis C symptoms relate back to his exposure to hepatitis between March and April 1981, the Board determines that his reported history of symptoms while competent, is nonetheless not probative in establishing the nexus element. As an initial matter, the large gap between the Veteran’s service and treatment for hepatitis C (more than 28 years after his separation from service and almost 30 years since his exposure to hepatitis) weighs against the Veteran’s claim. Indeed, the large gap between his active duty service and when he first sought treatment for hepatitis C contradicts any claim that his hepatitis C symptoms have persisted since service. Additionally, the Board notes that prior to filing the claim on appeal, in November 2006, the Veteran filed claim for VA benefits for low back pain. Therefore, the fact that the Veteran was aware of the VA benefits system and sought out another claim for other benefits, but made no reference to hepatitis, weighs heavily against his credibility. Moreover, service connection may be granted when the evidence establishes a medical nexus between active duty service and the current diagnosis. However, the Board finds that the weight of the competent evidence does not attribute the Veteran’s hepatitis C to active duty service, despite his contentions to the contrary. Here, the Board places significant probative weight on the opinion of the VA examiner. In August 2017, the examiner considered whether the Veteran’s hepatitis C was at least as likely as not incurred in or caused by his exposure to hepatitis during service. The examiner opined that it is less likely than not that the Veteran has chronic hepatitis C that was incurred in or caused by the in-service exposure to hepatitis. In support of her opinion, the examiner first explained that she did not find that the Veteran had risk factors for hepatitis C during service. Specifically, she stated that he had no documented symptoms or diagnoses related to hepatitis during active service or during reserve service in the late 1980s. Next, the examiner explained that treatment records showed no diagnosis of hepatitis C through 2010. Finally, the examiner explained that numerous other risk factors arose after the Veteran left the military that could have resulted in him contracting hepatitis C. The examiner identified those risk factors as years of intravenous drug use, incarceration, and tattoos. Because there was evidence of repeated exposure to those risk factors after his active duty service, which she identified as the most significant risk factors for contracting hepatitis C, the examiner opined that it is less likely than not that his hepatitis C was incurred in or cause by his exposure to hepatitis while on active duty. Given her comprehensive review of the clinical evidence, her expertise, and the substantial research cited in support of her opinion, the Board finds that the examiner provided a persuasive rationale and a probative opinion. Additionally, the Board notes that the Veteran has not provided sufficient evidence, including private opinions and/or medical evidence, to establish a nexus between his hepatitis C and active service. In arriving at its conclusion, the Board has also considered the statements made by the Veteran relating his hepatitis C to active service. The Federal Circuit has held that “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). In this case, however, the Veteran is not competent to provide testimony regarding the etiology of his hepatitis C. See Jandreau, 492 F.3d at 1377, n.4. Although the Veteran can provide competent testimony regarding symptoms, hepatitis C is not a disorder that can be diagnosed by its unique and identifiable features as it does not involve a simple identification that a layperson is competent to make. In any event, the diagnoses of dysfunctions and disorders, and their respective etiologies, are medical determinations and generally must be established by medical findings and opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Thus, to the extent that the Veteran believes that his hepatitis C is related to service, he is a lay person without appropriate medical training and expertise to provide a medical diagnosis and etiological opinion.   By virtue of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran’s claim for service connection and there is no doubt to be otherwise resolved. 38 U.S.C. 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is denied. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Crosnicker, Associate Counsel