Citation Nr: 20080636 Decision Date: 12/22/20 Archive Date: 12/22/20 DOCKET NO. 15-46 647 DATE: December 22, 2020 ORDER Service connection for hepatitis C is denied. FINDING OF FACT At no time during the appeal period has the Veteran had a disability of hepatitis C which was caused by or incurred during service. CONCLUSION OF LAW The criteria for entitlement to service connection for hepatitis C have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1972 until February 1975. This case is before the Board of Veterans’ Appeals (Board) on appeal from a February 2013 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that rating decision, the RO denied entitlement to hepatitis C because the Veteran did not submit new and material evidence sufficient to reopen a previously denied claim. In January 2019, the Veteran testified at a video conference hearing at the RO before the undersigned Veterans Law Judge (VLJ). A transcript of that testimony is of record. In September 2019 the Board reopened the previously denied claim, and remanded the reopened claim of service connection for hepatitis C for further development. In March 2020, the Board again remanded the claim for further development. 1. Entitlement to service connection for hepatitis C The Veteran contends that he has hepatitis C which began during active service, or is otherwise related to service. Initially, the Veteran has had diagnoses of hepatitis C during the appeal period. See, e.g. private medical treatment records dated September 1997, December 2017; private consultation note dated March 2002; October 2019 VA examination report Disability Benefits Questionnaire (DBQ) (indicating a 1998 diagnosis of hepatitis C and indicating a current, high viral load). The Veteran reported at his January 2019 Board hearing that, he was exposed to blood during service while receiving immunizations via air gun shots. He reported that he later sustained contusions to one of his legs when a tank track turned over on him. Service Treatment Records (STRs) dated January 1974 reflect a contusion of the left hip due to a tank accident; STRs dated December 1974 show complaint of a contusion on the left leg. Thus, the dispositive issue in this case is whether the third element of a service connection claim (nexus) is met; specifically, whether the Veteran has, at any point during the appeal period, had a disability of hepatitis C that is caused by or otherwise related to service, including an in-service onset. The Veteran has now attended numerous VA examinations for the present issue. The Veteran was diagnosed with hepatitis C in September 1997, and the record shows that he was treated for the condition in June and July of 1999. He testified at his January 2019 Board hearing that the disease was cured in December 2018; however, the current disability requirement is satisfied when a claimant has a disability at the time of filing the claim or during the pendency of that claim, even if the disability has since resolved. McClain v. Nicholson, 21 Vet. App. 319 (2007). The purpose of the most recent remand in this case was to obtain an opinion as to whether it is at least as likely as not (50 percent or higher probability) that the Veteran’s hepatitis C which existed prior to being cured in December 2018 is etiologically related to the Veteran’s active service, to include the Veteran’s claimed in-service immunizations by air gun and the tank accident which caused contusions to his leg or legs. Then, if the examiner found that the Veteran in fact had hepatitis C prior to December 2018 which was related to service, the examiner was to opine as to whether it is at least as likely as not (50 percent or higher probability) that the disease which manifested after December 2018 is either (i) related to the Veteran’s reported in-service blood exposure, or (ii) sequelae of the hepatitis C that was cured in December 2018. In March 2020, a VA examiner opined, following an in-person examination, that the Veteran’s hepatitis C was less likely than not incurred or caused by the Veteran’s service. The examiner’s rationale was that the Veteran was cured of the first hepatitis C infection with an antiviral drug which, though it treats and destroys the current infection, has no immunizing effect and thus if an individual is re-exposed to hepatitis C, a new infection is possible. The examiner noted that “the old infections do not contribute to the new. In [October 2019], the viral load was high then in December 2019 the virus was undetected. The Veteran reports no additional blood exposures, however, sexual activity which is another way to contract the virus was denied.” The March 2020 opinion did not address whether the Veteran’s hepatitis C infection which was present prior to December 2018 was related to service. For that reason, an addendum opinion was requested by the RO, and in July 2020 the April 2020 examiner provided a clarifying opinion. In the July 2020 addendum opinion, the examiner cited the Veteran’s September 1997 hepatitis C diagnosis and laboratory results from June 1999 related to hepatitis C treatment. The examiner noted that 22 years had elapsed from the Veteran’s separation from service until he was first diagnosed with hepatitis C, and cited September 2019 laboratory reports which noted evidence of hepatitis C after a 2018 experimental treatment. Then, the examiner stated “the Hep C is less likely than not incurred in or caused by the claimed in service injury, event, or illness [sic].” In light of the foregoing, the preponderance of the evidence is against finding that the Veteran has had a disability of hepatitis C, at any time during the appeal period, which is related to service. On that issue, the record contains the March 2020 and July 2020 opinions. The examiner reviewed the Veteran’s service treatment records, as well as the relevant medical records from 1997 to the present; and, obtained the Veteran’s description as to the history and symptomatology of the disease. In interpreting the VA examiner’s opinion, it is reasonable to infer that the examiner reasoned that if the Veteran had contracted hepatitis C as a result of in-service immunizations or from the tank accident, the disease would have manifested much earlier than 1997, when it was first shown in laboratory findings. As so, the rationale follows that the long gap in time between the Veteran’s separation from service and the earliest diagnosis of hepatitis C is evidence that the hepatitis C was not caused by the in-service immunizations or the contusions resulting from the tank accident, and therefore, less likely than not caused by or otherwise related to service. Even assuming arguendo, that the Veteran did not experience observable symptoms right away, or ever, the examiner clearly articulated that the infection was not shown in the Veteran’s blood work until 1997, which was too remote from any event in service that could have caused it. The interpretation of laboratory findings, and the incubation period between the time of infection and when it shows up in blood work are medical questions not capable of lay observation. There is no competent medical opinion that contradicts these findings The Veteran sincere belief that his hepatitis C is related to an in-service event or injury is not competent, and is outweighed by the medical evidence of record in this case. (Continued on the next page)   Based on the foregoing, the weight of the evidence is against the claim; there is no reasonable doubt to resolve in the Veteran’s favor, and the claim is denied. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. KAYS HUKILL 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.