Citation Nr: 18116708 Decision Date: 07/10/18 Archive Date: 07/06/18 DOCKET NO. 14-11 130 DATE: July 10, 2018 ORDER Entitlement to service connection for hepatitis C is denied. FINDING OF FACT Hepatitis C did not manifest during service or for many years thereafter, and is not related to active duty service. CONCLUSION OF LAW The criteria for service connection for hepatitis C are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1978 to March 1984. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In the decision, the RO denied entitlement to service connection for hepatitis C. In March 2014 the Veteran testified at a hearing before a Decision Review Officer (DRO). A DRO conference report was issued and associated with the claims file. In September 2015, the Board remanded the Veteran’s claim for further evidentiary development. The record reflects substantial compliance with the Board’s remand directives, as an adequate opinion was obtained for the reasons indicated in the discussion below. See Stegall v. West, 11 Vet. App. 268 (1998). In June 2017, the Veteran’s representative, at that time, requested a 60-day extension to submit additional evidence. His request was granted. Notably, no additional evidence was submitted. In June 2018, the Veteran was scheduled to appear at a Board hearing before a Veterans Law Judge. He failed to appear for said hearing, and has not since asked for it to be rescheduled. Accordingly, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2017). Entitlement to service connection for hepatitis C is denied. Service connection will be granted if the evidence demonstrates that current disability resulted from a disease or injury incurred in active military service. 38 U.S.C.§ 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the reasons below, entitlement to service connection for hepatitis C is not warranted. Here, the medical evidence shows that the Veteran has had a history of hepatitis C since 2005. See, e.g., private treatment records dated November 2005. Therefore, the Veteran has thus met the current disability requirement. The Veteran claims that his hepatitis C is due to his military service. Specifically, he asserts that he developed hepatitis C as a result of an in-service air gun inoculation. See, e.g., Disability Benefits Questionnaire ( DBQ ) dated April 2012 and Veteran’s statement dated July 2013. Medically 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 VA Training Letter 01-02 (April 17, 2001). In addition to the general statutory and regulatory legal authority governing service connection claims, a VA Fast Letter issued in June 2004 (FL 04-13, June 29, 2004) identified “key points” that included the fact that hepatitis C is spread primarily by contact with blood and blood products, with the highest prevalence of hepatitis C infection among those with repeated, direct percutaneous (through the skin) exposure to blood (i.e., intravenous drug users, recipients of blood transfusions before screening of the blood supply began in 1992, and hemophiliacs treated with clotting factor before 1987). It was concluded in FL 04-13 that the large majority of hepatitis C infections can be accounted for by known modes of transmission, primarily transfusion of blood products before 1992, and injection drug use. It also noted that transmission of hepatitis C virus with air gun injections was “biologically plausible,” notwithstanding the lack of any scientific evidence of documented cases of air-gun infection. The Fast Letter noted that, if a determination was made that an air gun was the source of hepatitis C, the report upon which the determination of service connection should include a full discussion of all modes of transmission and, if applicable, a rationale as to why an air gun was the source of the hepatitis C. FL 04-13. During the pendency of the appeal, all VA Fast and Training Letters, including those cited above, were rescinded and summaries incorporated into VA’s Adjudication Manual, M21-1. The Adjudication Manual currently contains provisions similar to those in the Fast and Training Letters cited above. See M21-1, III.iv.4.I.2 (December 16, 2015). Service connection cannot be granted for any disease or injury if it is the result of a veteran’s own willful misconduct or due to abuse of alcohol or drugs. 38 U.S.C. § 105(a); 38 C.F.R. § 3.301(a) The Veteran’s STRs, including his March 1984 separation examination report, are negative for complaints, treatment, or diagnosis of any variant of hepatitis. The Veteran’s DD Form 214 noted that he was discharge other than honorable conditions for “misconduct-drug abuse.” Assuming that the Veteran received an air gun inoculation during service, the remaining question is whether the Veteran’s hepatitis C is related to service, including his in-service air gun inoculation. The first clinical notation of hepatitis C appears to be in the medical history of treatment records dated in 2005, which notes the Veteran’s reported cocaine use. See, e.g., private treatment records dated November 2005. In an October 2014 brief, the Veteran’s attorney, at that time, cited to a medical article supporting that blood testing for hepatitis C was not available until 1992 and that symptoms may not be present for many years after infected. See Attorney’s brief dated October 2014; citing Centers for Disease Control and Prevention, “Hepatitis C FAQs for the Public,” http://www.cdc.gov/hepatitis/hcv/cfaq.htm. In February 2016, the Veteran was afforded a VA examination. The VA examiner examined the Veteran reviewed the claims file and opined that it is less likely than not that the Veteran’s hepatitis C is related his military service. The examiner reasoned that hepatitis C usually manifested within 6 months after exposure to hepatitis C by a short-term illness. The Veteran reported that he did not have symptoms suggestive of Hepatitis C or short-term illness until his diagnosis in 1992, in which the examiner noted that his diagnosis was fourteen years after the Veteran’s in-service inoculation. Furthermore, the examiner indicated that the Veteran did not have symptoms prior to his diagnosis of hepatitis C in 1992. The examiner also reasoned that the Veteran reported drug use and got tattoos following his military service, which are risk factors for contracting Hepatitis C. The examiner concluded that the Veteran’s hepatitis C is due to his post-service drug abuse. The above medical opinion indicates that there is no nexus between the Veteran’s hepatitis C and his active duty service. The February 2016 VA opinion is entitled to substantial probative weight, as the examiner accurately reviewed the evidence of record and explained the reason for his conclusion based on the evidence. The VA examiner’s opinion explained that the Veteran’s hepatitis C was related to his post-service drug use, as it was reported by the Veteran during the examination. The negative nexus opinion is entitled to substantial probative weight. See Nieves-Rodriguez, 22 Vet. App. at 304 (most of the probative value of a medical opinion comes from its reasoning). There is no contrary medical opinion in the evidence of record. While the Fast Letter and Adjudication Manual indicate that it is biologically possible that hepatitis C may be transmitted by air gun inoculations, this general evidence is of significantly less probative weight than the specific, reasoned opinion of the February 2016 VA examiner. See Sacks v. West, 11 Vet. App. 314, 317 (1998) (noting that treatise materials generally are not specific enough to show nexus); Herlehy v. Brown, 4 Vet. App. 122, 123 (1993) (noting that medical opinions directed at specific patients generally are more probative than medical treatises). To this end, the Veteran is competent to testify as to his observations, report in-service risk factors (i.e., air gun immunizations), and post-service symptoms that were later diagnosed as hepatitis C. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Lay witnesses are also competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran’s particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In this case, however, the Veteran is not competent to relate his hepatitis C to the single in-service risk factor of air gun inoculation, because this etiological question relates to internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. See Jandreau, 492 F.3d 1377 at n. 4 (a lay witness is capable of diagnosing a dislocated shoulder or a simple medical condition, for example a broken leg, but not, for example, a form of cancer). Notably, the Veteran has asserted, somewhat inconsistently, that he has had abnormal liver test since 1978, but also that blood testing for hepatitic C was not available until 1992 and was thus not available during his service. See attorney’s brief dated October 2014. To the extent that the Veteran alleges abnormal liver testing other than blood testing for Hepatitis C, the weight of the evidence is against such abnormal liver functioning tests during service, as the Veteran’s STRs show no indication of abnormal liver functioning testing, and there was normal blood testing (serology) on the October 1981 reenlistment examination and the March 1984 separation examination. Had there been abnormal findings including regarding the liver on blood testing, they would be expected to have been noted, given that normal blood test findings were noted. See Fountain v. McDonald, 27 Vet. App. 258, 272 (2015) (“[T]he Board must first establish a proper foundation for drawing inferences against a claimant from an absence of documentation.”); Horn v. Shinseki, 25 Vet. App. 231, 239 n.7 (2012) (recognizing that the absence of evidence cannot be substantive negative evidence without “a proper foundation...to demonstrate that such silence has a tendency to prove or disprove a relevant fact”); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (citing Fed. R. Evid. 803(7) for the proposition that “the absence of an entry in a record may be evidence against the existence of a fact if it would ordinarily be recorded”). The Veteran’s statements in this regard are therefore not credible. For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for hepatitis C. The benefit-of-the-doubt doctrine is therefore not for application, and this claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Ashley Castillo, Associate Counsel