Citation Nr: 18106635 Decision Date: 05/31/18 Archive Date: 05/31/18 DOCKET NO. 15-11 908 DATE: May 31, 2018 ORDER Service connection for hepatitis C is denied. FINDING OF FACT The Veteran’s hepatitis C is not shown to have been incurred in or otherwise the result of military service, to include his air gun injections therein. CONCLUSION OF LAW The criteria for establishing service connection for hepatitis C have not been met. 38 U.S.C. §§ 105, 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from February 1972 to June 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in October 2017. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). “To establish a right to compensation for a present disability, a Veteran 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 or aggravated during service”—the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Hepatitis C primarily is transmitted by contact with blood and blood products, with the highest prevalence correlated to repeated and direct percutaneous (through the skin) exposure. VA Fast Letter 04-13 (June 29, 2004). The large majority of those with hepatitis C thus contract it by known risk factors such as intravenous (IV)/injection drug use with shared instruments, transfusion before screening of the blood supply began in 1992, and treatment for clotting factor for hemophiliacs before 1987. Id. Reuse of needles for tattoos, piercings, and acupuncture also is a potential risk factor. Id. Other potential risk factors include intranasal cocaine use involving shared instruments, high risk sexual activity, sharing a toothbrush or razor, and accidental exposure to blood. VA Training Letter 01-02 (April 17, 2001); VA Training Letter 98-110 (November 30, 1998). However, the chance of transmission via sexual activity is well below comparable rates of transmission for hepatitis B and HIV/AIDS. VA Fast Letter 04-13. In this case, the Board acknowledges that the evidence of record documents a current diagnosis of hepatitis C. On appeal, and extensively during his October 2017 hearing, the Veteran contends that his hepatitis C is the result of vaccinations from air gun injections he received during service. Given the period during which the Veteran served, the Board finds his statements that he received air gun injections to be credible. Consequently, the first two elements of service connection have been met in this case. Therefore, this case turns on whether the nexus element has been met. The Board finds that it has not been met. During the Board hearing the Veteran and his spouse testified that they felt that his air gun injections during service were the cause of his hepatitis C, and that their belief was based on internet articles they had read while researching hepatitis C. The Board, however, cannot find the Veteran or his spouse’s statements regarding etiological cause of his hepatitis C to be competent or probative medical opinions, as both the Veteran and his spouse lack the requisite medical expertise in this case. Whether hepatitis C was contracted from the injections is too complex a question to be answered by non-experts. The Veteran testified during his October 2017 hearing that he had kidney failure in the early 1980’s and it was at that time he was diagnosed with hepatitis C. He further testified that after his kidney failure he had hemodialysis and two kidney transplants; he indicated that he was currently treated with dialysis at the time of his hearing. A review of the Veteran’s service treatment records does not demonstrate any treatment for, diagnosis of, or any other indications of hepatitis C—or any other types of hepatitis—shown during military service. Rather, the evidence—including the Veteran’s own statements—confirms that he was diagnosed with hepatitis C many years after discharge from service. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim, which weighs against the claim). The Veteran underwent a VA examination of his hepatitis C in April 2014, at which time the examiner noted his contentions regarding infection via air gun vaccinations. The examiner noted that the Veteran had a history of renal dialysis which began in 1989 as well as 2 failed kidney transplants in 1983 and 2004, respectively. The examiner noted that the Veteran had a diagnosis of hepatitis C and noted the risk factors for hepatitis C were organ transplant prior 1992 and hemodialysis. Based on her review of the claims file and interview and examination of the Veteran, the examiner opined that his hepatitis C was not related to air gun vaccinations as there was not enough medical based literature to confirm this and that the Veteran had other risk factors, to include kidney transplant in 1983 and a history of hemodialysis. Additionally, in an April 2014 addendum, the VA examiner further indicated that she was unable to comment about the Veteran’s in-service sexually transmitted disease as a risk factor, believing that it would be inappropriate without resorting to mere speculation; she instead noted that she had provided the opinion and risk factors outlined in her previous examination and opinion. The Veteran submitted a March 2015 letter, in which Dr. J.H.B. noted that the Veteran had begun maintenance hemodialysis beginning in 1985 and received two kidney transplants in 1985 and 2003. Dr. J.H.B. further noted that the Veteran’s chronic kidney disease was attributed to chronic glomerulonephritis and several biopsies of his kidney transplants revealed recurrence of membranoproliferative glomerulonephritis, which he concluded was the result of his pre-existing chronic infection with hepatitis C, which was responsible for his chronic kidney disease and two failed kidney transplants. Dr. J.H.B. further stated that the source of his hepatitis C infection was a mystery to him “as he has no history of parenteral drug abuse and has no tattoos. He recently told me that he had been inoculated with vaccines or other medications in an assembly line fashion on at least 2 occasions” during military service. Dr. J.H.B. concluded, “The use of high pressure injector guns represents the most likely source of [the Veteran]’s infection with the hepatitis C virus.” The Veteran also submitted a March 2017 letter in which Dr. M.L. indicated that the Veteran “underwent a mass inoculation of vaccines for overseas travel” during his period of miliary service. He further noted that the Veteran was diagnosed with hepatitis C in the early 1980’s but it was possible that the viral issue was present for a longer time. He noted that “based on his medical history,” the Veteran had progressed into renal failure, got a renal transplant which failed and he remained on dialysis. “There remains great concern that during this mass inoculation that he contracted the hepatitis virus which lead to the etiology of his renal disease, failed transplant, and dialysis dependence to this day.” The Board reflects that Dr. M.L.’s letter is equivocal, at best, with regards to whether the Veteran’s air gun injections during military service were actually the cause of his hepatitis C; rather there was merely “great concern” about whether that was true. See Tirpak v. Derwinski, 2 Vet. App. 609, 610 (1992) (doctor’s letter stating probability in terms of “may or may not” was speculative). Moreover, even though Dr. J.H.B. did clearly render a medical opinion, that medical opinion does not appear to be supported by a rationale, but rather is conclusory. See Guerrieri v. Brown, 4 Vet. App. 467 (1993) (the probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion the physician reaches); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) (the failure of the physician to provide a basis for his/her opinion affects the weight or credibility of the evidence). Furthermore, neither Dr. M.L. nor Dr. J.H.B. discussed the Veteran’s transplant in the early 1980’s or his hemodialysis prior to that transplant as possible etiological causes for development of his hepatitis C. Finally, neither of those doctors addressed the Veteran’s statements that he was diagnosed with hepatitis C in the early 1980’s, even though medical science could not identify that virus until the late 1980’s. In contrast, the VA examiner considered the Veteran’s contentions, as well as the full evidence and medical history in the claims file. Her medical opinion is therefore vastly more probative than either of the two private physicians’ medical opinions noted above. Thus, the Board finds that the probative evidence of record regarding the nexus elements weighs against finding that the Veteran’s hepatitis C was incurred in or otherwise the result of military service, to include air gun injections therein. As a final matter, the Board acknowledges the Veteran’s testimony and the representative’s assertions during the October 2017 hearing that the Veteran may have been exposed to herbicide agents, including Agent Orange, during his period of service in Thailand. However, both the Veteran and his representative acknowledged during the hearing that hepatitis C was not on the presumptive diseases list for herbicide exposure under 38 C.F.R. § 3.309(e). Furthermore, the Veteran specifically stated that no medical professional had indicated to him that his hepatitis C could have possibly been related to herbicide exposure; the Veteran, in fact, declined to assert any relationship between tactical herbicide agents and hepatitis C, instead focusing his subsequent testimony solely on air gun injections during service. In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be “medically competent” evidence of a current disability, “medically competent evidence is not required to indicate that the current disability may be associated with service.” Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 12. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service would not suffice to meet the standard of subsection (B) of 38 U.S.C. § 5103A(d), as this would, contrary to the intent of Congress, result in medical examinations being “routinely and virtually automatically” provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-1279. Consequently, without making any determination as to whether the Veteran was exposed to herbicide agents during military service, the Board finds that the Veteran has not actually raised that contention in this case. However, insofar as it was raised by the Veteran’s representative during the October 2017 hearing, it is clear from his testimony that the Veteran does not believe such an etiology is valid. Moreover, the Veteran’s representative has not proffered any evidence from any VA or private physicians, or any other peer-reviewed clinical or treatise evidence which documents some relationship between hepatitis C and herbicide exposure. Rather, as documented above, the VA Fast Letters identify hepatitis C as a blood-borne pathogen, as extensively noted above. Therefore, the Veteran’s representative’s statements during the October 2017 hearing amount to conclusory, generalized lay statements suggesting a nexus. Without more in this case, the Board finds that a remand is not necessary in order to obtain a VA examination and medical opinion in this case. See 38 U.S.C. § 5103A(d) (2012); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In short, the first manifestation of the Veteran’s hepatitis C is shown many years after discharge from military service, and the most probative evidence of record demonstrates that his hepatitis C was not otherwise the result of military service, to include air gun injections during service. Accordingly, service connection for hepatitis C must be denied based on the evidence of record at this time. See 38 C.F.R. §§ 3.102, 3.303. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Peters, Counsel