Citation Nr: 18139890 Decision Date: 10/01/18 Archive Date: 10/01/18 DOCKET NO. 13-21 774A DATE: October 1, 2018 ORDER Entitlement to service connection for hepatitis C is denied. Entitlement to service connection for a liver disability, claimed as secondary to hepatitis C is denied. FINDINGS OF FACT The preponderance of the evidence of record is against a finding that the Veteran’s current hepatitis C is causally related to his military service. The preponderance of the evidence of record is against a finding for service connection for a liver disability, secondary to service connected disability. CONCLUSIONS OF LAW The criteria for entitlement to 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. The criteria for entitlement to service connection for liver disability, claimed as secondary to service connected hepatitis C, have not been met. 38 U.S.C. § 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1976 to June 1979. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In a July 2017 decision, the Board remanded the claim for an additional opinion that addresses etiology of the Veteran’s claim. The Board notes that there was substantial compliance with its July 2017 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). 1. Entitlement to service connection for hepatitis C. The Veteran contends that his current diagnosis of hepatitis C was caused by his military service. The question for the Board is whether the Veteran’s hepatitis C is etiologically related to, or aggravated by, an in-service disease or injury. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). There are recognized risk factors for contracting hepatitis C that should be taken into consideration when developing and adjudicating a claim of service connection. The medically recognized risk factors are: transfusion of blood or blood products before 1992; organ transplant before 1992; hemodialysis; tattoos; body piercing; intravenous drug use (due to shared instruments); high-risk sexual activity (risk is relatively low); intranasal cocaine use (due to shared instruments); accidental exposure to blood products in health care workers or combat medic or corpsman by percutaneous (through the skin) exposure or on mucous membrane; and other direct percutaneous exposure to blood such as by acupuncture with non-sterile needles or by the sharing of toothbrushes or shaving razors. The use of air gun immunizations has not been documented as a potential risk factor for hepatitis C; however, it is biologically possible. See VBA Fast Letter (04-13) June 29, 2004; See also VBA Manual M21-1, III.iv.4.I.2.e. The record includes findings that the Veteran has a current diagnosis of hepatitis C, as shown in numerous medical records; however, the Board concludes that the competent, credible, and probative evidence is against a finding that the Veteran’s current disability is related to his military service. 38 U.S.C. §§ 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The Veteran specifically alleges that the use of inoculation air guns is the only cause of transmission for his hepatitis C disease. He also alludes to another potential cause coming from dental personnel not cleaning or sterilizing instruments. The Veteran notes he has not been exposed to any risk factors, such as intravenous drug use, multiple sex partners, blood transfusions, or tattoos. See Form 9, February 2012 and August 2013; See also Statement in Support of Claim, April 2010. As an initial matter, the Board notes that private treatment records (ranging from February 1988 to October 2009) reflect a diagnosis of hepatitis C; and one physician, Dr. Robert Shultz, stated the Veteran “contracted the hepatitis C while serving his country in the military,” but did not give a rationale as to how and/or why this disease was contracted. See Patient Medical Transcription Report, December 2003. The Veteran’s service treatments records (STRs) are negative for evidence of any complaints, findings or diagnosis of hepatitis C or any risk factors associated with the disease; however, it does note the Veteran had a sexually transmitted disease, gonorrhea, during his separation examination. In November 2010, the Veteran was afforded a VA examination, to which the VA physician confirmed the diagnosis of hepatitis C, but opined that it was as less likely as not related to the immunizations received in service. The examiner’s rationale is based on air gun injections not being a risk factor for the disease. Unsatisfied with the rationale, the Veteran’s representative, the American Legion, drafted a brief contesting the adequacy of this exam, and requested that a new exam, or at the very least, an addendum be given. See Appellate Brief, December 2016. After consideration of all the evidence, the Board found the November 2010 VA examination inadequate on the basis that it did not consider the Veteran’s gonorrhea when assessing etiology. See BVA Decision, July 2017. A new VA examination was given on September 2017. The examiner again opined, it was as less likely as not that the Veteran’s hepatitis C had its onset during active service or is related to any in-service event or injury, to include a STD. The examiner’s rationale was that no new information was given to make a different decision; and the Veteran was exposed to air guns in the military, but there is no direct correlation with hepatitis C. He further opined that the Veteran did have gonorrhea, but that is not a known etiology; and that the Veteran did have dental work, but no notes of blood transfusion or contact of blood from medical personnel. The Board accords great probative weight to the September 2017 VA examiner’s opinion, as such considered all the pertinent evidence, based on an accurate medical history, and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Additionally, the Veteran submitted numerous lay statements in reference to post service observations, which the Board has carefully reviewed and considered. Such statements include a March 2010 lay statement from L.B. (known Veteran for eight years), who has noticed the symptoms of jaundice, distended stomach, frequent fatigue, and occasional nosebleeds; a March 2010 lay statement from M.B. (known Veteran for seven years), who has witnessed the Veteran’s health deteriorate (notes that the Veteran’s quality of life has worsened), and he suffers from loss of appetite, weight loss, blotchy skin coloration, abdominal extension, fatigue, nausea, abdominal pain, and gastric distress; an April 2010 lay statement from someone (signature is unreadable; known Veteran for twenty years), who has seen the Veteran’s health deteriorate, and has witnessed nosebleeds, nausea, weakness, difficulty with appetite, constantly battling fluid retention, and fatigue; a March 2010 lay statement from someone (signature is unreadable; known Veteran since 1995), who observed the Veteran’s difficulty with standing/sitting comfortably due to pain in his calves/thigh, loss of weight, fluid retention in abdomen, nosebleeds, and muscle cramps, and states the hepatitis C “is more likely than not was contracted when he was in the marine corps” (See Statement in Support of Claim, March 2010); and lastly, a March 2010 lay statement from B.H. (known Veteran since 1987), who witnessed the Veteran become weak, fatigued, severe loss of appetite, fluid retention causing stomach to swell, nosebleeds, frequent complaints of nausea and abdominal pain, and states the Veteran’s disease is “as most likely caused by or as a result of his military service as a Marine” (See Statement in Support of Claim, March 2010). As to the lay statements that address the Veteran’s symptoms, the Board finds these statements are competent because they relate to observations that can be made by a lay person. See Falzone v. Brown, 8 Vet. App. 398 (1995). However, a lay person is not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competency to testify as to symptoms but not to provide medical diagnosis). Thus, to the extent the lay statements make a medical finding that the Veteran’s hepatitis C was caused by his service, the Board finds those lay statements not competent, as medical expertise is required to determine causation of a diagnosis; and consequently, is afforded no probative weight. Beyond competency, the Board must also determine whether these statements are credible. Layno v. Brown, 6 Vet. App. 465, 469 (1994). In this case, the Board finds the lay statements regarding the Veteran’s symptoms and quality of life are credible. However, the question before the Board is regarding etiology and, as discussed above, the etiology of hepatitis C is a matter not capable of lay observation and requires the requisite medical expertise by a trained medical professional for determination. Therefore, the Board assigns these lay statements little probative weight. Lastly, the Board has carefully reviewed and considered the various internet materials submitted by the Veteran, to include: a prior Board decision granting service connection for hepatitis C; an article titled “Hepatitis C as a Presumed Service Connection for Military”; internet excerpts titled “Statements of Hep C Vets,” “The Statistics for Veterans with Hepatitis C,” and “Prevalence of Hepatitis C Among Military Retirees and Veterans”; and photographs illustrating dental treatment and air gun shots. Unfortunately, there is no evidence in these materials that discuss the etiological association, nor do they mention any etiological relationship between the Veteran’s hepatitis C and air gun use during his service, or the combination of his hepatitis C and other risk factors. The Board has not identified any reliable or verified information confirming that unsterilized dental instruments were used, or if they were used, there is no indication that they were specifically used on the Veteran. Prior Board decisions are considered nonprecedential in nature, and each case is decided on the basis of the individual facts in light of the applicable law and regulations. 38 C.F.R. § 20.1303. Apart from the lack of precedential value, as different evidence in the case of another veteran may have resulted in the grant of service connections, the prior Board decision does not compel the conclusion that the facts in this case warrant an award of service connection. Therefore, these materials submitted by the Veteran do not rise to the requisite level of certainty needed to be considered probative evidence; and thus, the Board finds these materials lacking in probative value and outweighed by the competent medical opinion by the VA examiner, dated September 2017. As such, these documents are not accorded any significant evidentiary weight. Thus, the Board finds that the preponderance of the evidence is against the claim for service connection. Although the Veteran has a current disability, and has provided competent evidence of an in-service event, the weight of the Veteran’s medical and lay evidence does not establish a nexus between the two. Service records are completely negative for any evidence of hepatitis C and the Veteran does not allege any medically recognized risk factors associated with contracting the disease. Additionally, none of the Veteran’s treating physicians identified a nexus, and the September 2017 VA examiner provided a medical opinion against a finding of a nexus. The examiner reviewed the complete claims file, including the internet materials and lay statements submitted by the Veteran, and concluded that the evidence did not establish a relationship between the Veteran’s hepatitis C and his service. The Board has considered the doctrine of giving the benefit of the doubt to the Veteran, under 38 U.S.C. § 5107 and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Therefore, service connection for hepatitis C is denied. 2. Entitlement to service connection for a liver disability, as secondary to hepatitis C. The Veteran contends that his current liver disability was caused or aggravated by his hepatitis C. Service connection may be granted on a secondary basis for a condition that is not directly caused by the Veteran’s service. 38 C.F.R. § 3.310. In order to prevail under a theory of secondary service connection, the evidence must demonstrate an etiological relationship between (1) a service-connected disability or disabilities, and (2) the condition said to be proximately due to the service-connected disability or disabilities. Buckley v. West, 12 Vet. App. 76, 84 (1998). In addition, secondary service connection may also be found in certain instances when a service-connected disability aggravates another condition. See Allen v. Brown, 7 Vet. App.   439 (1995); 38 C.F.R. § 3.310(b). Service connection for hepatitis C has not been established; therefore, association of liver disability on a secondary basis of that disease cannot be considered. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Hodges, Associate Counsel