Citation Nr: 20081064 Decision Date: 12/28/20 Archive Date: 12/28/20 DOCKET NO. 15-31 638 DATE: December 28, 2020 ORDER Entitlement to service connection for hepatitis C is denied. FINDING OF FACT The Veteran has hepatitis C with possible risk factors of tattooing and substance abuse; the reported in-service risk factors have not been linked to his hepatitis C disability. CONCLUSION OF LAW The criteria for service connection for hepatitis C have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1979 to December 1982. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2018, this matter was remanded for further development. In October 2020, the Veteran’s attorney submitted additional evidence/argument with a waiver of initial RO review. 1. Entitlement to service connection for Hepatitis C Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for a disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to establish direct service connection a Veteran must show: “(1) the existence of a present disability; (2) 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.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Depending on the evidence and the contentions of record in a particular case, lay evidence can be competent and sufficient to establish a diagnosis and medical etiology of a condition. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran is seeking to establish service connection for hepatitis C, which he contends was incurred in service when getting tattoos in Asia. The service treatment records (STRs), to include separation examination, show no complaints of or treatment for any liver disability, to include hepatitis C. The evidence establishes a diagnosis of chronic hepatitis C that was first diagnosed in 2008. See 2008 private treatment records as well as October 2019 VA examination report. Additionally, after undergoing Harvoni treatment, he reported being told he was hepatitis C free. Concerning the in-service incurrence element, although tattoos are not specifically listed, the Veteran’s STRs indeed show he entered service without any “Identifying body marks, scars, tattoos” noted, but his November 1982 separation examination report indeed recognizes the presence of such. The Board finds no reason to question the Veteran’s report of receiving tattoos while overseas in service. Pursuant to the August 2018 Board remand, the Veteran was examined in October 2019. After a thorough review of the Veteran, the examiner indicated that hepatitis C is less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that the post-service treatment records indicate the diagnosis of the Veteran’s hepatitis C many years after his discharge from the military. The examiner could not conclude that the Veteran acquired hepatitis C during his time of service due to lack of evidence in the Veteran’s medical records and the timing of the diagnosis. In October 2020 correspondence, the Veteran’s attorney appears to suggest that service connection for hepatitis C is warranted because the Veteran abused alcohol and cocaine during service. The Board observes that the October 2019 VA opinion weighs against the claim. The examiner provided an adequate explanation. Indeed, he indicated that had the Veteran contracted hepatitis C during service, it would not manifest that many years after service. There is no competent opinion to the contrary. Further, although the Veteran’s attorney submitted arguments that suggest the Veteran’s hepatitis C disability is due to in-service drug and alcohol abuse, there is no indication from the evidence and opinions that any of the examiners opined as such. Indeed, the opinions that the attorney points to were for the Veteran’s service-connected psychiatric disability and did not address his hepatitis C. Further, the Veteran’s medical records document a long history of post-service substance abuse—including cocaine abuse. Based on the foregoing, the Board finds that service connection for hepatitis C is not warranted. The most probative evidence does not link his hepatitis C to service. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for hepatitis C. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. McPhaull, 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.