Citation Nr: 19194329 Decision Date: 12/17/19 Archive Date: 12/16/19 DOCKET NO. 14-28 225 DATE: December 17, 2019 ORDER Service connection for hepatitis C is denied. FINDING OF FACT The preponderance of the evidence does not demonstrate that the Veteran’s hepatitis C infection was acquired during active service or is otherwise etiologically attributable to any aspect of his active duty service. CONCLUSION OF LAW The criteria for service connection for hepatitis C have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.301, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1975 to November 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2018, the Board remanded this matter for further evidentiary development. Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1131. Generally, to establish a right to compensation for a present disability, the evidence must show (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for disability shown after service, when all the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). Hepatitis C The Veteran has a current diagnosis of hepatitis C. As such, element one under Shedden is met. The Veteran asserts that risky sexual behavior during service caused him to contract hepatitis C. Service treatment records (STRs) show he was treated for penile discharge in December 1977. On a January 1978 report of medical history, the Veteran reported a history of venereal disease. The Veteran’s post-service VA treatment records document complaints, treatments, and a January 2008 diagnosis of hepatitis C. The Veteran underwent VA examination in July 2014. As noted by the Board in the April 2018 remand, the examiner did not consider the Veteran’s STRs mentioned above in the opinion and rationale. Instead, the examiner indicated that an STD was not confirmed in the STRs and did not consider whether the Veteran’s current disability was related to such an incident in service. Therefore, this matter was remanded to obtain an addendum opinion to determine whether the Veteran’s hepatitis C is related to service. Pursuant to the April 2018 Board remand, an addendum opinion was obtained in May 2019. The VA examiner reviewed the Veteran’s claims file, to include the STRs mentioned in the April 2018 remand. The examiner noted that the January 2008 VA treatment record listed hepatitis C risk factors of multiple sexual partners, tattoos, and illicit drugs in the 1980s. The examiner further recounted the Veteran’s report of a history of intravenous drug abuse (IVDA), multiples partners (dates not specified), and having tattoos that pre-existed service. The examiner then pointed out that at least one risk factor pre-existed service (tattoo) and that the STRs contain a single reference to “possible” STD but this was not confirmed on testing. The examiner continued to state that the STRs are silent for IVDA, and treatment records in 2008 indicate IVDA occurred greater than one year following separation. In summary, the examiner found there is no clear evidence in the medical records that would support a claim of high-risk behavior in service leading to the development of hepatitis C. In support, the examiner cited to medical literature, which included discussion of the relationship between injection drug use and hepatitis C as well as hepatitis C infection by sexual transmission. The examiner further explained that if the Veteran did not have a history of IV drug use, it would have been as likely as not that he was exposed to hepatitis C through high risk sexual activity in the service, but this would be considered speculation as the records clearly indicate he did have a history of IV drug abuse. The examiner referred to the cited medical literature and indicated that parenteral exposure related to intravenous drug use is the most efficient means of transmission and therefore would be the more likely risk factor. The examiner, however, found that the risk of transmission related to high risk sexual activity during active duty could not be eliminated. Therefore, the examiner could not provide further opinions without resorting to speculation as discussed above. At the outset, the Board notes service connection is precluded for a disability resulting from a claimant’s drug abuse. Additionally, the first medical evidence of hepatitis C was in 2008, approximately 30 years after his discharge from active service. . The Board has considered the Veteran’s statements regarding the etiology of his hepatitis C. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, a nexus between hepatitis C and service, is outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Given the foregoing, the post-service medical evidence outweighs the Veteran’s assertion that service connection is warranted for hepatitis C. Accordingly, the weight of the evidence is against the claim, and the claim is denied. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Griffith The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.