Citation Nr: 18156591 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 99-19 147 DATE: December 11, 2018 ORDER Entitlement to service connection for hepatitis C is denied. REMANDED Entitlement to service connection for diabetes mellitus is remanded. Entitlement to service connection for hemorrhoids is remanded. FINDING OF FACT Hepatitis C, or symptoms thereof, was not manifest during active service; any current hepatitis C is not otherwise etiologically related to the Veteran’s period of active service. CONCLUSION OF LAW The criteria for service connection for hepatitis C have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from April 1974 to September 1975. He testified before the Board at an April 2014 hearing; a transcript of the hearing is of record. This case was most recently before the Board in July 2017, at which time the appeal was remanded to the Agency of Original Jurisdiction for further development. The issues of entitlement to service connection for diabetes mellitus and hemorrhoids are again REMANDED to the AOJ. VA will notify the appellant if further action is required. Service Connection Board decisions must be based on the entire record, with consideration of all the evidence. 38 U.S.C. § 7104. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). It is VA’s defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran claims service connection for hepatitis C as directly related to his active military service. Specifically, he asserts that he contracted this condition either through the receipt of air gun inoculations or tattoo(s) while in service. While the evidence reveals that the Veteran currently suffers from hepatitis C, the competent, probative evidence of record does not etiologically link the Veteran’s current disability to his service or any incident therein. The Board acknowledges the hepatitis C virus was not discovered until after the Veteran separated from active service and, thus, a diagnosis of the disorder would not be reflected in service treatment records. However, the Veteran’s service treatment records are absent complaints of, or treatment for, symptoms related to hepatitis C. A September 1975 Report of Medical Examination, completed at service separation, indicates a normal clinical evaluation. As such, the Board finds that no chronic hepatitis C was manifest during active service. When a disorder is first diagnosed after service, service connection is warranted for that condition if the competent evidence shows it was incurred in service. 38 C.F.R. § 3.303(d). Post-service records reveal that the Veteran was first found to have elevated liver function test readings in April 1995, though hepatitis C was not diagnosed at that time. However, assuming arguendo that this testing represents a possible initial manifestation of hepatitis C, this was nearly 20 years following the Veteran’s separation from active service. While not dispositive of the issue, the Board may, and will, consider in its assessment of a service connection the passage of a period of time wherein the Veteran has not complained of the malady at issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Significantly, VA obtained a medical opinion in August 2016 to address the etiology of the Veteran’s hepatitis C, during which the VA examiner conducted a comprehensive review of the record, including service, private, and VA medical treatment records, numerous lay statements submitted by the Veteran and on his behalf, and prior decisions and remands of the Board and the U.S. Court of Appeals for Veterans Claims. Following this review, the VA examiner opined that it is less likely as not that the Veteran’s current hepatitis C had its onset during service or is otherwise causally or etiologically related to such service. In offering this opinion, the VA examiner noted there were no symptoms of hepatitis during service, and the earliest documentation of elevated liver function tests was in 1995, nearly 20 years following service separation, the etiology of which was unknown but indicated at the time to possibly be due to polysubstance abuse. The examiner noted the Veteran had multiple risk factors for hepatitic infection including tattoos, IV drug abuse, heroin and cocaine use (via unspecified routes), alcohol abuse, high risk sexual behavior, including conviction of a sexual offence that occurred in 1989, and multiple periods of incarceration. Finally, the VA examiner noted there is no credible medical evidence in the medical literature to substantiate that transmission of hepatitis C is caused by air gun immunizations. The examiner referred to a VA cooperative study, published in 2005, which noted that hepatitis C transmission due to air guns was a theoretical or plausible route of transmission, but also noted there are no objectively documented cases of hepatitis C transmission due to air gun use in the accepted medical literature. The VA examiner concluded that, based on objective evidence documenting multiple significant risk factors for hepatitis C transmission, all of which are unrelated to military service, and the plausible (versus proven) relationship of air gun immunizations to hepatitis C transmission, it is her opinion that it is less likely than not the Veteran’s hepatitis C had its onset during service or is causally and etiologically related to service. The Veteran has not submitted a competent medical opinion in support of his claim. The Board acknowledges the Veteran’s assertion that he did receive a tattoo during service and, therefore, was at a risk of contracting hepatitis C at the time. However, the Board finds these assertions are not credible. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); see also Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (in determining whether statements and evidence submitted by a Veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant). A review of the Veteran’s entrance examination indicates four tattoos: the left thumb/hand, left forearm/wrist, right forearm/wrist, and right thumb/hand as well as a birthmark on the chest. The separation examination also reveals four tattoos; inner right wrist, dorsum right hand, dorsum left thumb, and left forearm. The fifth marking noted on the separation examination, “VSULA”, is indicative of a scar and not a new tattoo. While the Veteran’s representative notes there are no tattoos specifically noted on the dorsum, or back, of the right hand on the entrance examination report, the examiner at the time also noted the tattoo of the dorsum of the left thumb in the “front” body drawing. Therefore, it is not inconsistent to accept the tattoo noted on right hand on the entrance examination report is the same as that noted on the separation examination report. This fact, combined with the same number of tattoos noted at service entrance and separation, leads the Board to conclude that the Veteran’s statements that he received additional tattoos while in service are not credible. Therefore, these statements are afforded little probative value when considering whether the Veteran participated in “high risk” activity during service. Finally, with respect to the Veteran’s assertion that he contracted hepatitis C from the use of air gun immunizations during service, the Board notes that these guns did not break the skin and, thus, the Veteran’s assertions regarding cuts and exposure to blood from multiple bleeding injectees are not credible. Furthermore, as noted by the VA examiner, there is no documented instance of hepatitis C infection by this means of injection. These air guns relied upon intramuscular injection, whereas hepatitis C infection has been shown only with intravenous injection. See VA Training Letter 01-02 (April 2001). The hepatitis B virus, in contrast, is heartier and may be transmitted through these guns. See VA Fast Letter 04-013 (June 2004). While transmission of hepatitis C through the use of air gun immunization may be biologically plausible, it is unlikely and undocumented. Therefore, the use of air gun immunization does not rise to the level of reasonable doubt sufficient to award service connection for hepatitis C based on this exposure alone. See generally 38 C.F.R. § 3.102. While the Veteran is competent to report (1) symptoms observable to a layperson; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, he is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Consequently, the Veteran’s lay assertions of medical diagnosis or etiology are afforded little probative value and cannot constitute evidence upon which to grant the claim for service connection. Lathan v. Brown, 7 Vet. App. 359, 365 (1995). In sum, there is no competent medical evidence of record supporting the Veteran’s assertion that his current hepatitis C is etiologically related to his active service. The absence of any complaints of or treatment for symptoms related to this condition in service, and the lack of a diagnosis, complaints, or treatment for approximately 20 years after service, are probative evidence against the claim for direct service connection. The lay statements regarding the receipt of additional tattoos during service have been found not credible in light of the objective and contemporaneous evidence and, thus, are afforded no probative value. Finally, there being only a plausible basis for transmission of hepatitis C via air gun immunization, this does not rise to the level of relative equipoise or reasonable doubt. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for hepatitis C, and the benefit of the doubt rule does not apply. See 38 U.S.C. § 5107. REASONS FOR REMAND In the July 2017 remand, the Board instructed that addendum medical opinions be obtained to address the nature and etiology of the Veteran’s claimed diabetes mellitus and hemorrhoids. The Board specifically instructed the VA examiner to consider and address the Veteran’s lay statements regarding in-service symptoms and whether such symptoms may represent early manifestations of these conditions. While an addendum opinion was obtained in March 2018, the VA examiner specifically refused to consider the Veteran’s lay observations of in-service symptomatology and, instead, based the negative opinions on the date of diagnosis. As such, these opinions are inadequate for the purposes of determining service connection, and a remand is required to obtain new medical opinions. See generally Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Forward the claims file to an appropriate VA examiner other than the examiner who conducted the January 2015 VA examination and provided the March 2018 addendum opinion. If the examiner determines an additional physical examination of the Veteran would be beneficial, one is to be obtained. The entire claims file, including this REMAND, must be provided to the examiner for review in conjunction with the opinion. All necessary testing and consultations should be conducted. Following a review of the claims file, and physical examination of the Veteran if performed, the examiner is requested to address the following: (a.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s diabetes mellitus began in service, was caused by service, or is otherwise related to service. In offering this opinion, the examiner must address the Veteran’s competent lay statements of in-service symptoms of fatigue, excessive thirst, and excessive urination, and whether such symptomatology represents early manifestations of diabetes mellitus. (b.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s hemorrhoids disability began in service, was caused by service, or is otherwise related to service. In offering this opinion, the examiner must address the Veteran’s competent lay statements of in-service symptoms and self-treatment of hemorrhoids. In providing the opinions above, the examiner is instructed that an opinion cannot be based solely on a lack of documented treatment or diagnosis during service or within one year of service discharge. A complete rationale must be provided for each opinion, including consideration of the evidence, accepted medical principles pertaining to the history, clinical course, and the character of the disability found. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (Continued on the next page)   This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Christopher Murray, Counsel