Citation Nr: 18161064 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 16-53 201 DATE: December 28, 2018 ORDER Entitlement to service connection for hepatitis C is denied. Entitlement to service connection for cirrhosis of the liver is denied. FINDINGS OF FACT 1. The Veteran’s diagnosed hepatitis C was not related to his active duty. 2. The Veteran’s cirrhosis of the liver is caused by hepatitis C. CONCLUSIONS OF LAW 1. The criteria for service connection for hepatitis C have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2018). 2. The criteria for secondary service connection for cirrhosis of the liver have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.310(a) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). The Veteran served on active duty from July 1970 to June 1973. He died in August 2015. The appellant is his surviving spouse and has been substituted into the appeal. Service Connection In May 2011, the Veteran claimed service connection for hepatitis C and cirrhosis of the liver. In May 2013, the RO denied the claim. The Veteran filed a notice of disagreement (NOD) with the decision in May 2014. In August 2015, the Veteran died. In January 2016, his surviving spouse, the appellant, applied to be substituted into this appeal. In May 2016, the RO granted the appellant’s application. Then, in August 2016, the RO issued to the appellant a Statement of the Case (SOC) responding to the Veteran’s May 2014 NOD. In October 2016, she appealed the May 2013 rating decision to the Board. See 38 U.S.C. § 5121A (2012); 38 C.F.R. § 3.1010 (b) (2018). Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active service. 38 U.S.C. § 1110. Service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, 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 (Fed. Cir. 2004). For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to—or is the result of—a service-connected disease or injury, or that a service-connected disease or injury has aggravated the nonservice-connected disability for which service connection is sought. 38 C.F.R. § 3.310. Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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). To deny a claim on its merits, the evidence must weigh against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for hepatitis C In the May 2014 NOD, the Veteran stated that he contracted hepatitis in service but never sought treatment for the condition while in service because he did not have any symptoms. He stated that his doctor told him the severity of his cirrhosis indicated that he had contracted hepatitis C decades prior to his official diagnosis. He stated that he was exposed to blood contaminates in battle and close living quarters with other service members, and he was required to get vaccinations with multi-use jet gun injectors that were not sterilized. He also claimed that he had no post-service risk factors for contracting hepatitis C. The recognized risk factors for hepatitis C include: (a) transfusion of blood or blood product before 1992; (b) organ transplant before 1992; (c) hemodialysis; (d) tattoos; (e) body piercing; (f) intravenous drug use (with the use of shared instruments); (g) high-risk sexual activity; (h) intranasal cocaine use (also with the use of shared instruments); (i) accidental exposure to blood products as a healthcare worker, combat medic, or corpsman by percutaneous (through the skin) exposure or on mucous membrane; and (j) other direct percutaneous exposure to blood, such as by acupuncture with non-sterile needles, or the sharing of toothbrushes or shaving razors. See VBA Training Letter 211A (01-02), dated April 17, 2001. The VA Fast Letter 04-13 states that “[t]he large majority of HCV [hepatitis C] infections can be accounted for by known modes of transmission, primarily transfusion of blood products before 1992, and injection drug use. Despite the lack of any scientific evidence to document transmission of HCV with air gun injectors, it is biologically plausible. It is essential that the report upon which the determination of service connection is made includes a full discussion of all modes of transmission, and a rationale as to why the examiner believes the air gun was the source of the veteran’s hepatitis C.” See VA Fast Letter 04-13 (June 29, 2004). Upon review of all the evidence of record, the Board finds that the Veteran’s diagnosed hepatitis C was not incurred in service and is not otherwise related to service. The Veteran’s service treatment records (STRs) are negative for any liver disorder such as hepatitis C. His medical records do confirm that the Veteran had vaccinations in service, but do not verify exposure to blood contaminants. Private treatment records and VA treatment records show that the Veteran was first diagnosed with hepatitis C in December 2008. In a treatment note dated January 2009 the Veteran was noted as having the following hepatitis C risk factors: history of intranasal cocaine (last used in the 1980s) and a history of tattoos. The private physician, Dr. Oh, opined that the hepatitis C was most likely acquired by sharing straws and dollar bills when snorting cocaine in the early 1980s. In a treatment note dated May 2009, the Veteran reported having the following hepatitis C risk factors: intravenous drug use, a few times with shared needles; intranasal cocaine use with shared straws/bills; tattoos; and high risk sexual behavior. The VA requested a review of the Veteran’s evidence to determine if his hepatitis C could be linked to service. In June 2016 A VA physician examined the evidence of record and opined that the Veteran’s hepatitis C was likely not related to or caused by service. The VA physician noted that even though the Veteran served during a period when gun injectors were used for vaccines, there is no proven causality between the use of a gun injector and hepatitis. In addition, the reviewer noted that the Veteran had a history of illicit drug use and participated in cocaine use, using shared straws and dollar bills, intravenous drug use which involved shared needles, and tattoos. The reviewer opined that the Veteran’s post-service risk factors have all been definitively shown to cause hepatitis C; therefore, the Veteran’s condition could not be linked to service. The appellant filed a VA Form 9 in October 2016. The appellant stated that the Veteran was exposed to blood in service because of the nature of his job in service. The appellant also stated that the Veteran participated in hand to hand combat and wargames where the blood exposure occurred placing the Veteran at risk for contracting hepatitis C. Additionally, the appellant noted there is a prevalence of veterans infected with hepatitis C within the VA system and that she cannot understand how the Veteran’s hepatitis C would be more likely than not related to his personal risk factors. The appellant also stated that the Veteran’s contraction of hepatitis C with the use of internasal cocaine in the 1980s is not likely because the medical community has hypothesized that that transmission may occur in that manner but it has not been proven. Lastly, the appellant stated that the dates of the Veteran’s end-stage cirrhosis and hepatitis C show it is more likely than not that the Veteran contracted hepatitis C during active service. As to the specific issue in this case, the cause of Veteran’s hepatitis C is medically complex, and accordingly the Board assigns greater weight to the VA physician’s opinion than to the appellant’s own lay opinions. Hepatitis C is a medically complex disease process because of its multiple possible etiologies, requires specialized testing to diagnose, and manifests symptomatology that may overlap with other disorders. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (holding that rheumatic fever is not a condition capable of lay diagnosis). The etiology of the Veteran’s hepatitis C is a complex medical etiological question involving internal and unseen system processes unobservable by the Veteran and the appellant. The VA physician has received medical training that would allow him to make such a medical opinion, and has examined the evidence of record before rendering his opinion. The appellant has not been shown to possess the training, credentials, or other expertise to render an opinion that is of comparable value to that of the VA physician’s. See Jandreau, supra. The Board acknowledges that VA Fast Letter 04-13 indicates that it is “biologically plausible” that hepatitis C may be transmitted by air gun inoculations; however, there have been no actual reports of such an occurrence. Further, while the VA Fast Letter states that it is biologically plausible to transmit hepatitis C by air gun inoculations, this letter does not provide an etiological opinion on the Veteran’s hepatitis C. Instead, the June 2016 VA physician reviewed the Veteran’s medical history and service treatment records in detail and opined that it was less likely that the Veteran’s hepatis C was caused by or a result of in-service air gun injections. Additionally, despite the theories regarding in-service incurrence via air gun injections, there is no indication that the air gun injections more likely than not infected the Veteran with hepatitis C. In other words, the mere possibility of such a relationship is insufficient to warrant a grant of the claim. See 38 C.F.R. § 3.102 (reasonable doubt does not include resort to speculation or remote possibility); Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); see also Obert v. Brown, 5 Vet. App. 30, 33 (1993) (the term “possibility” also implies that it “may not be possible” and it is too speculative to establish a nexus.). As noted above, the VA reviewer and Dr. Oh linked the Veteran’s hepatitis C to his post-service risk factors and thus there is no evidence linking the Veteran’s hepatitis C to his in-service vaccinations. Given the lack of evidence demonstrating the incurrence of hepatitis C during service, the preponderance of the evidence is against the claim, and the appeal is denied. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt rule enunciated in 38 U.S.C. § 5107(b). Inasmuch as the preponderance of the evidence is against the claim, the rule does not apply here. 2. Entitlement to service connection for cirrhosis of the liver as secondary to hepatitis C The Veteran claimed service connection for cirrhosis which he attributed to hepatitis C. The medical evidence of the record does establish that the Veteran’s cirrhosis was caused by his hepatitis C. However, inasmuch as hepatitis C is not service connected, a secondary service connection finding for cirrhosis is not warranted. See 38 C.F.R. § 3.310. Moreover, there is no basis on which to connect cirrhosis to active service. The Veteran’s STRs have no mention of cirrhosis and do not contain any complaints, treatment, or diagnoses for this condition. Private treatment records note that the Veteran was first diagnosed with cirrhosis of the liver in February 2009. In June 2016 a VA physician reviewing the evidence of record opined that the Veteran’s cirrhosis is at least as likely as not secondary to his hepatitis C. The VA physician noted that the Veteran was a competent and reliable historian and that hepatitis C causes cirrhosis. Additionally, the reviewer noted that the Veteran had no other diagnosed conditions which would cause cirrhosis and that the Veteran’s private doctors had also related his cirrhosis to his hepatitis C. Since a preponderance of the evidence does not show that the Veteran’s hepatitis C is related to service, service connection for cirrhosis on a basis secondary to that condition cannot be established. There is also no evidence in the claims file showing that the Veteran’s cirrhosis was incurred in or aggravated by his active service. As the preponderance of the evidence weighs against the appellant’s claim for service connection for the Veteran’s cirrhosis, the benefit-of-the-doubt rule does not apply, and the claim must be denied. See 38 U.S.C § 5107. CHRISTOPHER MCENTEE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Gresham