Citation Nr: 18125545 Decision Date: 08/10/18 Archive Date: 08/09/18 DOCKET NO. 12-17 992 DATE: August 10, 2018 ORDER Entitlement to service connection for hepatitis C is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has hepatitis C due to a disease or injury in service, to include specific in-service event, injury, 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) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1968 to November 1970. This matter is on appeal of a December 2009 rating decision. The Board remanded the appeal for further development in February 2014, December 2014 and July 2015. In February 2018, in accordance with 38 U.S.C. § 7109 (2012) and 38 C.F.R. § 20.901 (2017), the Board requested a medical expert opinion from the Veterans Health Administration (VHA). A VHA medical opinion was rendered in April 2018. In May 2018, the Veteran and his representative were provided a copy of the opinion and afforded the opportunity to submit additional evidence and argument. In a July 2018 letter from the Agency of Original Jurisdiction (AOJ), the Veteran was made aware of the Rapid Appeals Modernization Program (RAMP) and in a subsequent letter, he elected to participate in RAMP, selecting the option for “Higher-Level Review.” However, as noted in the July 2018 letter, appeals that have already been activated by the Board are not eligible for RAMP processing. Although the Veteran’s RAMP election has been processed for a later appealed claim for service connection for posttraumatic stress disorder (PTSD), the appeal seeking service connection for hepatitis C had already been activated by the Board, and the Board will continue with adjudication pursuant to current appeals procedures for this issue. Entitlement to service connection for hepatitis C. The Veteran and his representative contend that he contracted the hepatitis C virus in service from “air” or jet gun injections used for inoculations. 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 as early as December 2000, 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). While the Veteran believes his hepatitis C was contracted in service from inoculations administered with “air guns,” and a VA examiner opined, in February 2015, that it is “biologically plausible” for hepatitis C to be transmitted by a “jet gun” injection, the overwhelming preponderance of the evidence weighs against findings that the Veteran’s hepatitis C was incurred in service or is the result of any incident therein, to include his inoculations during active duty. The Board finds the Veteran is competent to report that he received “air gun” inoculations during service, as he is competent to provide evidence regarding the facts or circumstances of what he experienced. The Board also finds his statements regarding the inoculations to be credible, as they are consistent with the circumstances of his service as reflected by his service records. 38 C.F.R. § 3.159(a)(2). However, the Veteran is not competent to provide a nexus opinion in this case. The question of whether inoculations cause hepatitis C is a complex medical question not capable of lay observation, and is not otherwise the type of medical question for which lay evidence is competent, as it requires specialized medical knowledge or training. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Taken together, the March 2014, February 2015 and October 2015 VA examiners’ opinions, along with the April 2018 VHA opinion, establish that the Veteran’s hepatitis C is not at least as likely as not related to the Veteran’s service or any incident therein, including inoculations administered with “air guns.” All the opinions find it less likely that the Veteran’s hepatitis C is a result of his service or the in-service inoculations. The March 2014 and October 2015 opinions note that the Veteran was not diagnosed until 2000, 30 years after his discharge and that he had no symptoms in service. Both the February 2015 and April 2018 opinions acknowledge that transmission of hepatitis C through “air” or “jet” gun inoculations is plausible or possible in theory, but conclude that the Veteran had other risk factors that were more likely the cause of his hepatitis C. Although the March 2014, February 2015 and October 2015 opinions find that the Veteran’s hepatitis C is most likely the result of the use of intravenous (IV) drugs and/or high-risk sexual activities, both activities that the Veteran has emphatically denied. However, all the opinions also note other risk factors the Veteran does not deny, including prior alcohol abuse, tattoos, prior incarcerations and snorting Phencyclidine (PCP). The April 2018 opinion notes that the Veteran had his tattoos at the time he underwent his military induction medical examination. The Board finds the Veteran’s denial of having used IV drugs or engaged in high-risk sexual activities to be credible. However, the Board places great weight of probative value on the April 2018 opinion that the Veteran’s hepatitis C is less likely etiologically linked to his service or his inoculations in service and more likely related to other risk factors, including snorting PCP and/or tattoos, because it is based on an accurate medical history, considers risk factors that the Veteran has acknowledged, and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As noted above, the medical evidence of record supports the specialist’s opinion and the risk factors of having tattoos, non-IV drug use, and alcohol dependence. Initially, the Veteran’s May 1968 pre-induction examination report shows he had 3 tattoos on his left foreleg. There is no indication that he acquired any other tattoos as the September 1970 separation examination shows he had tattoos only on the left leg. Likewise, although a June 2016 VA private treatment record shows the Veteran denied ever using illicit drugs and that he quit using alcohol in 1968, VA and private treatment records as early as March 1997, indicate he had a lifetime history of alcohol dependence and had only quit using it in the last 2 to 3 years. Some treatment records note that he drank heavily while in service. A September 1998 private treatment record first notes the Veteran’s reported history of snorting PCP on a daily basis and being incarcerated from 1977 to 1978. The Board finds the earlier treatment records indicating a long history of alcohol dependence until at least the early 1990s and history of snorting PCP more credible than his later reported history of no illicit drug use and of having stopped using alcohol in 1968, because the Veteran’s histories given earlier were for treatment purposes only, while his reported history in June 2016 was given after he filed his claim, and it is not credible due to its inconsistency with the preponderance of other evidence in the record. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). The Veteran has not submitted any medical opinion in support of his claim. Although there is an indication from the record that the Veteran may have abused alcohol prior to and during his service, an injury or disease incurred or aggravated during active service shall not be deemed to have been incurred or aggravated in the line of duty if such injury or disease was a result of the abuse of alcohol or drugs as such is considered willful misconduct. 38 U.S.C. §§ 105(a), 1110; 38 C.F.R. § 3.301. Therefore, even if alcohol abuse occurred during service, he would not be entitled to service connection for hepatitis C incurred on that basis. In summary, the Board finds that a preponderance of the evidence is against the claim of service connection for hepatitis C. The Board has considered the benefit-of-the-doubt rule; however, since a preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt rule is not for application. 38 U.S.C. § § 5107; 38 C.F.R. § 3.102. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Wells-Green