Citation Nr: 18154612 Decision Date: 12/03/18 Archive Date: 11/30/18 DOCKET NO. 10-30 005 DATE: December 3, 2018 ORDER Entitlement to service connection for hepatitis C with liver damage is denied. FINDING OF FACT The Veteran’s hepatitis C was not manifested during his active military service, and is not shown to be causally or etiologically related to his active military service. CONCLUSION OF LAW The criteria for service connection for hepatitis C are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310, 3.313, 19.37(a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1954 to February 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from December 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the RO in St. Louis, Missouri certified the issue of service connection for diabetes to the Board. This issue is subject to a pending hearing request and will be addressed in a future Board decision. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, hepatitis is not listed in 38 C.F.R. §§ 3.307, 3.309(a); therefore, the one-year presumption does not apply. The law provides a presumption of service connection for certain diseases that are associated with exposure to herbicide agents and that become manifest within a specified time period in a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam or in or near the Korean Demilitarized Zone (DMZ) during specified periods of time, even if there is no record of evidence of such disease during the period of service. See 38 U.S.C. § 1116; 38 C.F.R. § 3.307 (a)(6). Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides for all Veterans who served in Vietnam during the Vietnam Era. See 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). In the instant case, the Veteran’s service personnel records reflect service in the Republic of Vietnam during such era, i.e., August 1965 to July 1966. Therefore, he is presumed to have been exposed to herbicides coincident with such service. If a Veteran was exposed to a herbicide agent during active service, certain diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. However, the Veteran’s claimed disorder is not included in the list of diseases acknowledged to be presumptively related to herbicide exposure. However, notwithstanding the presumption, service connection for a disability claimed as due to exposure to herbicides may also be established by showing that such disability was in fact causally linked to such exposure. See Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C. §§ 1113(b), 1116 and 38 C.F.R. § 3.303. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to service connection for Hepatitis C with liver damage The Veteran contends that he contracted hepatitis C during service. According to the April 2014 private treatment records, the Veteran has a current diagnosis of hepatitis C. The Veteran’s service treatment records do not reveal any complaints, treatment, or a diagnosis referable to hepatitis C. The February 1966 service treatment records through to July 1966, which reflect the time period in which the Veteran was in Vietnam, did not reflect a diagnosis, treatment or complaints of hepatitis C. In this regard, in May 1971, after his return from Vietnam, the report of medical examination reports a clinical evaluation which determined the Veteran’s abdomen as normal. The April 1973 retirement examination report was negative for any relevant abnormalities and the Veteran denied a history of hepatitis in an April 1973 Report of Medical History. Although the Veteran reported that he had received treatment for hepatitis at Tan Son Nhut Air Base sometime between March 1966 and May 1966 in a December 2011 statement, no such treatment is reflected in the available records. A March 2016 Personnel Information Exchange System (PIES) response indicates that a search for in-patient clinical records between March 1966 and May 1966 at the Tan Son Nhut Air Base had been conducted but no records were located. The Board also notes that the Veteran’s service treatment records reflect multiple entries in March 1966, April 1966, May 1966, June 1966, and July 1966 from a clinic at Tan Son Nhut Air Base. However, these entries reflect treatment for gonorrhea, a puncture wound to the middle finger, diarrhea and a bruised toe. The question for the Board is whether the Veteran’s diagnosed hepatitis C began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran had a diagnosis of hepatitis C, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(a), (d). Following service, the October 2000 VA treatment records indicated that the Veteran had unexplained liver disease and he states that he had hepatitis C in the military. In October 2000, laboratory tests were conducted on the Veteran, and the results in April 2001 reflect normal liver function for the Veteran. In the June 2005 VA treatment records, the Veteran claims to have contracted hepatitis C since his discharge from service. The May 2010 private treatment records indicate that the Veteran has an ongoing diagnosis of hepatitis C, however, the physician neither endorses nor comments on the fact that the Veteran claims to have contracted hepatitis C while in service. In July 2010, the VA treatment records indicates that the Veteran has hepatitis C but that it is inactive. In this regard, the February 2011 private treatment records indicate that from the hepatic findings, the Veteran’s liver was not enlarged. The April 2011 VA treatment record also states that the Veteran’s hepatitis C is inactive. The examiner explicitly states that the hepatitis C test was negative in 2001. In February 2011, the private treatment records note that the hepatic findings indicate that the liver was enlarged and the April 2011 VA treatment records show that the Veteran’s hepatitis C was inactive. The September 2013 VA treatment records provide an impression of hepatic cysts and bilateral renal cysts. The physician opined that there were stable and probably benign. He states that no further work up would be needed. In April 2014, the private treatment records provide a secondary diagnosis of hepatitis C. According to the June 2015 private treatment records, the physician provided an impression of hepatitis C for the Veteran. However, in October 2015, VA treatment records state that the Veteran claimed he had hepatitis C and wanted an examination to see if there is any damage to his liver. The physician informed him that all laboratory tests were negative for a diagnosis of hepatitis C. The laboratory also states that the Veteran’s liver enzymes were normal. The record provides an addendum which indicates that the physician reviewed the Veteran’s records. Based on the evidence of record, the Board finds service connection for hepatitis C is not warranted. The Veteran’s service treatment records are completely silent with respect to treatment for hepatitis C. Importantly, the first post-service evidence of hepatitis C is in October 2000, more than 26 years after service discharge. The Board notes that the passage of several years between discharge from active service and the medical documentation of the claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). In this case, the lack of any lay or medical evidence of related symptoms during or continuing after service preponderates against a finding that he manifested a chronic disability in service and that he experienced continuity of symptomatology thereafter, which preponderates against his claim. As such, service connection, for hepatitis C is not warranted in this case. Moreover, the Board notes that there is also a presumption that certain diseases are associated with exposure to herbicides. As noted above, the Veteran is presumed to have been exposed to herbicides based on the dates and nature of his service in Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). However, hepatitis C is not a disease that is recognized as being associated with herbicide exposure, nor is it encompassed by a broader listed disability. 38 C.F.R. § 3.309 (e). Therefore, service connection for hepatitis C based on this presumption is not warranted. Additionally, to the extent the Veteran believes that his hepatitis C was contracted while serving in Vietnam, as a lay person, he has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of hepatitis C requires medical testing and expertise to determine and the etiology of such condition involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Accordingly, his opinion as to the etiology of his hepatitis C is not competent evidence and, as such, his statements in this regard are afforded no probative weight. The July 2015 statement by the Veteran states that the VA refused him an examination in relation to his claim for hepatitis C. The August 2018 statement notes a request by the Veteran for testing relating to the “hepatitis disease he contracted in Vietnam”. The Board also notes that the Veteran has not been afforded a VA examination to determine the etiology of his hepatitis C and that such etiology opinion is not necessary in this case. There is no indication in the record, beyond the Veteran’s own statements, that hepatitis C is related to his military service. Moreover, the Veteran has not alleged a continuity of symptomology nor has he provided any argument regarding the cause of his claimed disorder. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); Bardwell v. Shinseki, 24 Vet. App. 36 (2010); Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Therefore, the Board finds that a VA examination and/or opinion is not necessary to decide this claim. Thus, given the lack of in-service reported or documented impairments related to his claimed hepatitis C, coupled with the first treatment for hepatitis C many years after service, the Board finds that the preponderance of the evidence is against the Veteran’s claim. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim for service connection. As such, that doctrine is not applicable in the instant appeal, and the claim must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. KRISTY L. ZADORA Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD O. Owolabi, Law Clerk