Citation Nr: 18122627 Decision Date: 07/31/18 Archive Date: 07/31/18 DOCKET NO. 16-04 984 DATE: July 31, 2018 ORDER Entitlement to service connection for hepatitis C is denied. REMANDED Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s hepatitis C began during active service, or is otherwise related to an in-service injury, event, or disease. CONCLUSION OF LAW The criteria for service connection for hepatitis C are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1969 to June 1972. This matter is on appeal from a July 2013 rating decision, which denied entitlement to service connection for hepatis C and posttraumatic stress disorder. Service Connection 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 requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. 1. Entitlement to service connection for hepatitis C The Veteran contends that he has hepatitis C that is related to an in-service injury, event, or disease. The question for the Board is whether the Veteran has a current disability that 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 has a diagnosis of hepatitis C, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The Veteran’s service treatment records do not reference complaints, treatment, or diagnosis of hepatitis C. An April 1972 report of medical history notes the Veteran’s endorsement of having headaches, chronic nasal congestion, sexually transmitted disease, and problems with right axillary adenoids. An April 1972 report of medical examination reported the Veteran had enlarged axillary nodes but was otherwise found to be free of defects. An August 1995 VA discharge progress note reports that the Veteran was admitted to Phase I of the Drug Abuse Program (DAP) in February 1995 for treatment of polysubstance abuse. He was transferred to Phase II of the program to receive in-patient treatment on June 1, 1995 and was scheduled for discharge on August 31, 1995. The Veteran attributed his drug use to availability and peer pressure. The discharge note indicated that the Veteran’s discharge diagnosis was polysubstance dependence (heroin (IV), cocaine (IV), and alcohol). A January 2008 VA initial evaluation note reported a provisional diagnosis of hepatitis C. The note also reported that the Veteran had a history of hepatitis C since 1995: “hepatitis c reactive 1995 not seen by infectious disease (doctor) in past.” In November 2012, the Veteran submitted to the VA a “Risk Factors for Hepatitis Questionnaire” completed in October 2012. One of the Veteran’s questionnaire responses described his use of intravenous drugs at Fort Bragg in 1970: “We use the same needle when using drugs.” Another response described high risk sexual activity: “We paid to have sex from girls we don’t know at [Fort] Bragg N.C. and in Germany.” Other records reflect that the Veteran continued to abuse drugs after his active duty service. See May 2011 History and Physical Note (stating the Veteran started using heroin and cocaine in the Army at the age 19, with the longest period of sobriety being 12 years); August 2012 History and Physical Note (stating the Veteran has used heroin since the age of 20 except for a period of sobriety between 1995 and 2010); November 2016 Screening Assessment Consult Note (stating that the Veteran’s drug of choice is heroin, which he has been using since the age of 19). In June 2014, the Veteran submitted a notice of disagreement in which he asserted that his hepatitis C was a result of in-service immunizations, which he described as “using a gun for shots without changing the needle back in the 60s.” Because the Veteran contended that a potential cause of his hepatitis C was his receipt of air gun vaccine injections during service, the Board remanded the claim for additional development. Pursuant to the Board’s November 2017 remand, the Veteran was afforded a VA examination of his hepatitis C in March 2018. The examiner reported that the Veteran was first diagnosed with hepatitis C in about 1995 and continues to have a current diagnosis. The Veteran reported seeing other Soldiers using needles to inject themselves with heroin while in service. After he was discharged, he began injecting himself with heroin using a needle. The Veteran reported using and sharing needles for heroin from the mid- to late 1970s until 1995. After abstaining for a period after 1995, he reported relapses in 2012 and 2017 in which he injected himself with heroin. The examiner opined that it is less likely as not that the origin or etiology of the Veteran’s hepatitis C resulted from immunizations via air gun injector during active duty service. Additionally, the examiner opined, more generally, that the Veteran’s hepatitis C was less likely as not incurred or as a result of active duty service. The examiner explained that the Veteran most likely received vaccination via air gun while on active duty based on standards of medical care at the time he was enlisted. Further, the examiner noted that air gun inoculations in the 1970s have been identified as a possible risk factor for hepatitis infection based on pre-1990 non-sterile technique and, therefore, were considered as such in the Veteran’s case. However, the examiner opined that “inoculation in a clean environment when compared to repeated direct injection with needles shared by multiple people over a nearly 20 year period, the argument to support airgun vaccination as the proximate cause of this specific Veterans hepatitis C infection to show onset during or due to active duty military 1969 to 1972 simply has no merit and would be resorting to mere speculation.” The examiner explained that the most likely etiology is the Veteran’s chronic intravenous drug abuse from the mid-1970s until 1995, as the Veteran reports and the record supports that the diagnosis of hepatitis C was most likely confirmed in 1995. The Board finds that the March 2018 VA opinion is adequate because the examiner thoroughly reviewed and discussed the relevant evidence, considered the contentions of the Veteran, and provided a thorough supporting rationale for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran has not submitted any specific medical findings to the contrary. Therefore, the March 2018 VA opinion is the most probative evidence of record. While the Veteran is competent to report observable symptoms of his hepatitis C, he is not competent to provide an opinion linking his symptoms to his active service. An opinion of that nature would require medical knowledge, training, and expertise and is simply outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran is not competent to provide an etiology opinion in this case. In view of the foregoing, the Board finds that the probative evidence of record does not show that the Veteran’s current hepatitis C is causally or etiologically related to an in-service injury or disease. While the Veteran believes his hepatitis C is related to his service, the Board concludes that the preponderance of the evidence weighs against finding that an in-service injury, event, or disease occurred. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable, and the claim must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to service connection for PTSD is remanded. The issue of entitlement to service connection for PTSD is remanded for further development. In March 2018, the Veteran was afforded a VA examination for PTSD. On the examination report, the March 2018 VA examiner indicated that the Veteran did not have a diagnosis of PTSD that conformed to the DSM-5 criteria based on the current evaluation. The examiner diagnosed the Veteran with the following disorders: Opioid Use Disorder, Stimulant Use Disorder, Alcohol Use Disorder, Cannabis Use Disorder, Other Specified Anxiety Disorder, and Other Specified Personality Disorder. The examiner explained that the Veteran attributes his anxiety to experiences of racism during military service, but has experienced multiple traumatic experiences before and after service as well, which may have also caused or contributed to anxiety symptoms. Thus, the examiner opined that she could not conclusively attribute the reported anxiety to military service events. The March 2018 VA examination is inadequate. The examiner opined that she could not “conclusively attribute” the Veteran’s reported anxiety to military service events. This was an incorrect standard of proof, however, as VA’s standard of proof only requires a 50 percent probability. Because the examiner relied on an incorrect standard of proof, the March 2018 opinion is inadequate. The matter is REMANDED for the following action: 1. Obtain any VA treatment records since March 2018. 2. Arrange for the Veteran’s claims file to be reviewed by the examiner who conducted the March 2018 VA examination on PTSD for an addendum opinion. The examiner should respond to the following: (a.) With respect to the diagnosed “other specified anxiety disorder,” is it at least as likely as not (50 percent or greater probability) that such psychiatric disability is etiologically related to the Veteran’s service? (b.) With respect to the diagnosed “other specified personality disorder,” is it at least as likely as not that there was a superimposed disease or injury that occurred during active service? 3. If an opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Moore, Associate Counsel