Citation Nr: 18156375 Decision Date: 12/11/18 Archive Date: 12/07/18 DOCKET NO. 14-12 398 DATE: December 11, 2018 ORDER Entitlement to service connection for hepatitis C is denied. FINDINGS OF FACT 1. The Veteran did not serve in the Republic of Vietnam and actual exposure to herbicide agents during service is not shown. 2. The Veteran’s hepatitis C did not have its onset in service and is not otherwise related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for hepatitis C are not met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from January 1973 to October 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In this regard, additional relevant service personnel records were associated with the Veteran’s claims file in August 2011, after prior adjudications of this issue. Thus, the matter will be reconsidered on the merits. 38 C.F.R. § 3.156(c). In March 2017, the Veteran testified before the undersigned Veterans Law Judge. In January 2018, the Board requested a Veterans Health Administration (VHA) expert medical opinion. In July 2018, the Board provided him a copy of the opinion and informed him of his right to submit any additional evidence within 60 days of the notification letter. No additional evidence was received; therefore, the Board will proceed with adjudication of this appeal. Entitlement to service connection for hepatitis C is denied. I. Veteran’s Contentions The Veteran maintains that his hepatitis C is due to arm tattoos he received during service; a reported in-service blood transfusion stemming from a head injury following an altercation; chemical exposures, including Agent Orange, in Germany from cleaning up and repainting vehicles; or air gun inoculations. See November 2010, December 2010, and April 2013 Veteran Statements, and March 2017 Board Hearing Transcript at 5-8. He asserts that the Red Cross refused his donated blood in 1976 due to him having hepatitis C. See March 2017 Board Hearing Transcript at 3. II. Applicable Law Service connection may be established for a disability resulting from injury or disease incurred in or aggravated during active service. 38 U.S.C. §§ 1110. Service connection may also 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). Generally, to establish service connection 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 in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). A “veteran who, during active military, naval, or air 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 during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service.” 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). III. Analysis Initially, regarding service connection due to herbicide agent exposure, the evidence does not show and the Veteran does not otherwise assert service in the Republic of Vietnam, and actual exposure has not otherwise been demonstrated. the only supporting evidence is the Veteran’s assertion that he may have been exposed to Agent Orange while cleaning up and repainting vehicles that came from Vietnam. See Board Hearing Transcript at 7. The Veteran is not competent to determine the chemical composition of substances, as this determination requires specialized knowledge, testing, and experience and he has not indicated he has such experience. Therefore, his statements of exposure, standing alone, are insufficient to establish his actual exposure to an herbicide agent. Thus, service connection in relation to reported herbicide agent exposure is not available, and the Board’s analysis will focus on his other proffered theories of entitlement. The Veteran has a current diagnosis of hepatitis C. See June 2010 and May 2012 VA examination reports. Thus, element one is established. As to element two, in-service incurrence of a disease or injury, the Veteran’s service treatment records (STRs) show he received multiple immunizations, sustained a head injury following an altercation, and had two arm tattoos at service separation. See January 1973 to April 1973, May 1974, and August 1974 STRs. Additionally, the Veteran’s report of chemical exposures while cleaning and repainting vehicles in Germany are consistent with the circumstances of his service. U.S.C. § 1154(a). Regarding element three, nexus, the most probative opinion of record, that of the May 2018 VHA expert, is against the claim (the Board notes that the June 2010 and June 2012 VA examiners’ opinions are inadequate, as they were either based on an inaccurate factual premise or did not address all the theories of entitlement of record; however, both examiners rendered negative opinions). Specifically, the VHA expert, after a thorough review of the claims file, opined that it is less than 50 percent likely that the Veteran incurred hepatitis C during service. In support of his opinion, he specifically addressed all the Veteran’s theories of entitlement separately. Regarding the Veteran’s arm tattoos, he indicated they are a possible source of hepatitis C, but less than one percent of hepatitis C is attributable to tattoos. He also noted that although the tattoos were not recorded on the Veteran’s entrance examination and were subsequently recorded on his separation examination, it was not required to note tattoos at induction. Thus, he stated it is not clear from the record when the Veteran received all his tattoos, but not likely they were all received in service (the Board also notes that the Veteran’s representative indicated during his Board hearing that the Veteran’s tattoos were acquired prior to service). As to the Veteran’s altercation during service that resulted in a head injury, the VHA expert noted that the Veteran received surgery for an inferior orbital fracture, but indicated his STRs did not reveal any transfusions around this incident or any time during service. Moreover, he stated that it is unlikely that he would have required any transfusions for such injury and focal repair of an orbital fracture. Regarding the Veteran’s chemical exposures in Germany while cleaning up and repainting vehicles, the VHA expert stated there is no factual or theoretical cause for hepatitis C transmission by this route. As to air gun inoculations, the VHA expert noted this theory as plausible, but indicated this method of transmission for hepatitis C has not been proven and that there is a less than one percent prevalence of hepatitis C in discharged military personnel. Additionally, the VHA expert noted that it is unclear if the hepatitis identified by the Red Cross in 1976 was non-A and non-B hepatitis, and that the Veteran had given blood on other occasions and it was accepted after 1974. He stated that although HCV testing was not available until 1992, the Veteran’s blood would have been refused for abnormal transaminase, which is accompanied with hepatitis C. He also noted that a liver biopsy in 1978 confirmed cirrhosis, which would have been early for HCV in a normal host who acquired HCV in 1973-1974 and that other factors such as heavy alcohol abuse (admissions for detoxification are found in a June 1974 STR) are likely contributors to cirrhosis in 1978. He further found that it is likely the Veteran had hepatitis B at some point, that his combat physicals revealed no episodes of acute or chronic hepatitis, and that given the Veteran’s conflicting account of how and when he was informed of his hepatitis C and regarding his transfusion history, tattoos and air gun inoculations risks are very low compared to transfusions he may have received outside of service, possibly in 1978 surrounding a chainsaw injury. Thus, he concluded that although he served during the Vietnam conflict which placed the Veteran at great risk for hepatitis C by virtue of intravenous drug use or transfusions (both which the Veteran has denied or are unproven), it is more likely that he acquired HCV in the setting of his risk cohort (patients born between 1945 and 1965) and not by in service exposure. The Board assigns this opinion high probative value as the VHA expert addressed all theories of entitlement, took the Veteran’s lay statements into consideration, and provided an understandable and rational basis for the opinion and relied on an accurate history. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). The Board acknowledges the private medical opinions from C. J. R. in March 2010, November 2010, and July 2012 which state that the Veteran had a blood transfusion and acquired tattoos in 1972 while on active duty that make it likely that his hepatitis C is related to military service (March 2010); that he had a blood transfusion in 1972 and that air gun inoculations have been linked to “possible” exposure to hepatitis C virus (November 2010); and the Veteran’s has risk factors that “make it medically feasible and possible” that his hepatitis C occurred in the 1970s, that he had a blood transfusion in 1972 and acquired tattoos in 1972 during service and that it is “entirely possible” that his hepatitis C is service-connected (July 2012). First, all three opinions are based on an inaccurate factual premise, as the Veteran was not on active duty in 1972 and there is no indication of any blood transfusion during service, as noted above. Further, the November 2010 and July 2012 opinions are too speculative in nature to support the claim and are therefore of no probative value. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009) (holding that the use of the phrase “may well be” with respect to causation was speculative); Fagan v. Shinseki, 573 F.3d 1282, 1289 (Fed. Cir. 2009) (holding that a speculative medical opinion provides neither positive nor negative support for the Veteran’s claim); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (holding that medical opinions are speculative and of little or no probative value when a physician makes equivocal findings such as “may or may not have been”). Thus, these favorable opinions are of no probative value. Lastly, to the extent the Veteran attributes his hepatitis C to service, his opinion is not competent. As a lay person, he has not been shown to be capable of making such conclusions on inherently medical questions. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The conclusion that the Veteran incurred hepatitis C during service os is otherwise related to service is a determination requiring specialized knowledge and testing to understand the complex nature of viral infections. The Veteran has not indicated that he has such experience. Thus, the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable, and the appeal is denied. S. BUSH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Asante, Associate Counsel