Citation Nr: 18127497 Decision Date: 08/17/18 Archive Date: 08/17/18 DOCKET NO. 15-41 159 DATE: August 17, 2018 ORDER Entitlement to service connection for hepatitis C is denied. FINDING OF FACT The Veteran’s current hepatitis C is not shown to be attributable to an episode of hepatitis or jet gun inoculations administered during a period of service. CONCLUSION OF LAW The criteria for entitlement to service connection for hepatitis C have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1970 to February 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision issued by the RO. The Veteran testified at a Board video-conference hearing in March 2017 before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been made a part of the record. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. 1. Entitlement to service connection for hepatitis C Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). The Veteran contends that his hepatitis C onset from the administration of inoculations by jet gun injectors during his period of service. This is the only recognized risk factor for hepatitis C that is claimed to have occurred during service. A January 1971 service treatment record documents that the Veteran was admitted for possible hepatitis. He had been admitted to the hospital with hepatitis and discharged a week and a half later in December 1970. He returned for follow-up care. He reported that he had been drinking heavily during the past weekend. The impression was possible hepatitis. The May 2013 report of VA examination documents a diagnosis of hepatitis C. On examination, the examiner opined that the Veteran’s hepatitis C was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that the service treatment records documented an episode of “hepatitis” during a period of service. However, the examiner explained that the “hepatitis” description was general and lacked specificity. The examiner explained that there was no other clinical evidence which indicated which type of hepatitis the Veteran acquired or the means of transmission. The Veteran denied participating in any known risk behavior associated with the acquisition of hepatitis C during his period of service. Thus, the examiner concluded that it was apparent that the condition (documented in the service treatment records) resolved, as would be expected in most if not all cases of “hepatitis.” The examiner explained that there was no other service treatment record to indicate any additional mode of transmission or additional infections during his period of service. After service, the Veteran admitted to intravenous (IV) drug use, a known risk factor for the development of both acute and chronic hepatitis C. Medical literature indicated that IV drug use was the most likely means of transmission for this type of hepatitis (there was a nearly 50:1 odds of acquiring hepatitis C with single IV drug use). The examiner found that there was no other additional supportive evidence to indicate any causal relationship between the Veteran’s in-service “hepatitis” episode and that of his current chronic hepatitis C condition. The examiner concluded that it was less likely as not that the Veteran’s hepatitis C was related to or caused by the hepatitis or some other event during his period of service. The Veteran’s affidavit dated in May 2014 reflects that he experimented with IV drugs in approximately 1974 – 1975. However, he reported that he never shared needles with another person when he experimented with these drugs. He also reported that he was administered immunizations by air gun injections during his period of service. The August 2015 report of VA examination confirms a diagnosis of hepatitis C. The examiner reported that there was no definitive scientific evidence to document transmission of hepatitis C virus with air gun injectors. Further, the Veteran had established documented risk factors, i.e., IV drug use, for transmission of hepatitis C. Thus, the examiner opined that the Veteran’s diagnosed hepatitis C was less likely as not caused using an air jet injector used to administer vaccinations/inoculations during his period of service. Though the Veteran has current hepatitis C, the preponderance of the evidence is against a finding of a linkage between the onset of the hepatitis C and the in-service episode of “hepatitis” or the administration of inoculations by jet gun injector during a period of service. Rather, the most probative evidence indicates that the Veteran’s admitted IV drug use was the most likely means of transmission for his hepatitis C (See May 2013 and August 2015 Reports of VA examination). This conclusion is probative as it is based on facts presented by both the service treatment records and the assertions made by the Veteran at the time of the VA examination. There is no competent or credible evidence or opinion that suggests that there exists a medical relationship, or nexus, between any current hepatitis C and a period of the Veteran’s service. The August 2015 VA examiner noted that the Veteran submitted articles discussing the association between hepatitis B (not hepatitis C) and jet gun injection. However, the examiner nonetheless found no connection between in-service air gun inoculation and the current disorder. The Veteran is not otherwise competent to link his hepatitis C to a period of service. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran’s death). The Veteran is competent to report that he experienced a medical episode during service. However, he is a lay person and is not competent to establish that his current hepatitis C onset because of an event or incident during a period of service. The Veteran is not competent to offer an opinion as to etiology of any current hepatitis C. The question regarding the etiology of such a disability is a complex medical issue that cannot be addressed by a layperson. For these reasons, his allegations are no more than conjecture and do not rise to the type of evidence addressed by Jandreau. (Continued on the next page)   The claim of entitlement to service connection for hepatitis C must be denied. The benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Jackson, Counsel