Citation Nr: 20007583 Decision Date: 01/30/20 Archive Date: 01/29/20 DOCKET NO. 16-11 209A DATE: January 30, 2020 ORDER Service connection for hepatitis C is denied. FINDING OF FACT The Veteran’s Hepatitis C did not have onset in service, did not manifest to a compensable degree within one year of separation from service, and is not otherwise related to service. CONCLUSION OF LAW The criteria for service connection for hepatitis C are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 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 1974 to October 1976. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303 (d). Service connection may be presumed for certain chronic diseases which develop to a compensable degree within one year after discharge from service, even though there is no evidence of such disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has that chronic disability, service connection can be granted. 38 C.F.R. § 3.303 (b). If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptoms after service may serve as an alternative method of establishing service connection. Id. Continuity of symptoms may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post- service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. Continuity of symptoms applies only to those conditions explicitly recognized as chronic. 38 C.F.R. § 3.309 (a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran has proffered two theories as to how he may have contracted Hepatitis C. In statements in support of his claim submitted in February and March 2012, the Veteran stated he became infected with Hepatitis C due to his drug abuse which began in-service. The Veteran has also stated he contracted Hepatitis C due to an air-gun vaccination administered to him while on active duty. VA medical center (VAMC) records show that the Veteran reported a positive Hepatitis C diagnosis in May 2001 and in August 2001 a VAMC record showed that he had a recent Hepatitis C diagnosis. The August 2001 VAMC record stated that the Veteran had been diagnosed Hepatitis C positive after a routine screening. A November 2002 VAMC record stated that while being evaluated for lower back pain in 2001 blood work showed a positive diagnosis of Hepatitis C. In July 2013, a VA examination noted that the Veteran had chronic Hepatitis C and was on an antiviral treatment. He reported drug use which began while he was in-service. In an October 2015 VAMC record, the Veteran stated that he had exposure to a vaccine gun and IV drug use in the 1970’s. He also reported a blood transfusion. In May 2019, the Veteran underwent a VA examination regarding his Hepatitis C. He denied drug use while in-service and stated that his drug use was in the 1990’s. He reported that he received a vaccination via air gun while on active duty in Germany. The examiner stated that the Veteran’s Hepatitis C was less likely than not related to an in-service injury, event, or illness. The examiner specifically stated that the most likely cause of the Veteran’s Hepatitis C was his prior drug use. The examiner stated that medical literature failed to show that air gun injections were a risk factor in transmission of Hepatitis C. In September 2019, the Veteran submitted a statement which reported that he could not state how he got Hepatitis C, but that he knew it was not from his drug use. He stated that he did not have any other blood disorders or HIV and submitted a medical report from June 2019 which showed he tested negative for HIV. Review of the Veteran’s service treatment records (STRs) show that there was no diagnosis of or treatment for Hepatitis C while the Veteran was on active duty or diagnosis of or treatment for this condition within one year of his active duty. While the Veteran’s medical records of evidence do show a diagnosis of Hepatitis C and treatment for that condition, none of these records indicate that these conditions were related to service or occurred within any close proximity to service. Assuming the Veteran had Hepatitis C as documented by the May 2001 VAMC record, that diagnosis occurred 25 years after his active duty service. The passage of many years between discharge from active service and the documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxson v. Gober, 230 F. 3d 1330, 1333 (Fed. Cir. 2000). Furthermore, the VA examiner did not find that the Veteran’s Hepatitis C was related to his active duty or the air-gun vaccine the Veteran received while on active duty. Simply put, there is no medical or other objective evidence of record which would establish that the Veteran’s Hepatitis C was related to his service in any manner. The Board notes that the Veteran’s VA care providers did not associate his Hepatitis C diagnosis to his active service throughout the course of his care and the records do not reflect that that Veteran, himself, made such an association at the time of his diagnosis or any time prior to his filing for service connection in 2011. Significantly, neither the Veteran nor his representative have identified any evidence of record or introduced any evidence into the record which would support the claim for service connection. The Board finds that even if the Veteran could establish that he contracted Hepatitis C from drug use which occurred or began in service, his claim would still be denied because service connection will not be granted if the current disability is a result of the veteran’s own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. §§ 1110. Where drug and alcohol abuse are at issue, service connection is precluded in two situations. Allen v. Principi, 237 F.3d 1368, 1376 (Fed. Cir. 2001). Service connection is precluded for primary alcohol or drug abuse disabilities and for secondary disabilities that result from those disabilities. The Board finds the May 2019 VA examiner’s medical opinion highly probative to the issue of the etiology of the Veteran’s Hepatitis C. Specifically, the examiner interviewed the Veteran and conducted a physical examination. Moreover, the examiner had the requisite medical expertise and had sufficient facts and data on which to base his conclusion. As such, the Board affords the VA examination opinion great probative weight. The Board has considered the Veteran’s lay statements, including the article submitted in February 2013 regarding Hepatitis C in Vietnam Veterans. Although the Veteran is competent to provide information on his condition, he has not been shown to be competent to opine as to the etiology of Hepatitis C, as he has not been shown to possess the requisite training or credentials needed to render a competent opinion as to medical diagnosis or causation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, the Veteran’s lay opinions that his Hepatitis C were caused by or related to his active service do not constitute competent medical evidence and lack probative value. Based on the foregoing, the preponderance of the evidence is against a finding that the Veteran’s Hepatitis C was related to his active duty service, and, accordingly, there is no doubt to resolve in his favor. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Parrish, Associate Counsel 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.