Citation Nr: A20019175 Decision Date: 12/22/20 Archive Date: 12/22/20 DOCKET NO. 200219-65611 DATE: December 22, 2020 ORDER Entitlement to service connection for hepatitis C is denied. Entitlement to service connection for renal disease, to include as secondary to hepatitis C, is denied. FINDINGS OF FACT 1. The Veteran’s hepatitis C did not manifest during and is not shown to be causally or etiologically related to any disease, injury, or incident during service, to include as due to any risk factors therein. 2. The Veteran’s renal disease did not manifest during and is not shown to be causally or etiologically related to any disease, injury, or incident during service, and is not caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for hepatitis C have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for renal disease, to include as secondary to hepatitis C, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1975 to August 1978. In July 2019 the RO issued the rating decision currently on appeal. The Veteran timely appealed this rating decision to the Board in February 2020 and requested direct review of the evidence considered by the Agency of Original Jurisdiction (AOJ) under the modernized appeal system. The Board has therefore considered the evidence of record submitted prior to notification of the rating decision with respect to the claims decided therein. Additional evidence was submitted after the July 2019 rating decision; however, it cannot be reviewed as a part of this appeal because it was submitted after the close of the evidentiary period. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1137; 38 C.F.R. §§ 3.307, 3.309. In some cases, service connection may also be established under 38 C.F.R. § 3.303 (b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307 ) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology. However, the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303 (b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, hepatitis C and renal disease are not diseases subject to presumptive service connection. Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310 (b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to service connection for hepatitis C is denied. The Veteran contends that he is entitled to service connection for hepatitis C. Specifically, he alleges that he contracted hepatitis C as a result of or during his active duty service as he had multiple sexual partners, to include contact with a woman who had hepatitis A, during service. The Veteran’s service treatment records are silent for complaints, treatment, or diagnoses related to hepatitis C. The Veteran’s enlistment examination reflected no reports, symptoms, or risk factors for hepatitis C. In January 1978 the Veteran reported sexual contact with a woman who was positive for Hepatitis A, but urine analysis was negative for hepatitis. Furthermore, the Veteran’s separation examination in August 1978 was silent for hepatitis C. Post-service the Veteran reported that he had multiple sexual partners during and after service. In addition, the Veteran reported intranasal cocaine use after service. Initial VA clinic visit in January 2010 was silent for any reports or complaints of hepatitis C. Private treatment records in June 2017 reflect a hepatitis C screening which was positive. No subsequent treatment records for hepatitis C or any etiological opinions are in the Veteran’s post-service treatment records. In January 2019 the Veteran underwent a VA Hepatitis, Cirrhosis and other Liver Conditions examination with an accompanying disability benefits questionnaire (DBQ). The examiner confirmed that the Veteran had a diagnosis of hepatitic C. The Veteran reported that he was first diagnosed with hepatitis C in 1998 after undergoing screening tests prior to receiving chemotherapy for Non-Hodgkin’s Lymphoma. However, the examiner did not find a diagnosis for hepatitis C until 2017. 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 provided the rationale that following a thorough review of the Veteran’s records both VA and private, there was no objective evidence of hepatitis C during the Veteran’s military service. Furthermore, the examiner noted that the Veteran admitted to having had multiple sexual partners both during and after service as well as intranasal cocaine use after service. Therefore, as the Veteran’s separation examination was silent for hepatitis C, the examiner implied it was more likely that the Veteran’s hepatitis C was contracted after service. Furthermore, while the Veteran reported that he had sexual contact with a woman positive for hepatitis during service, the examiner noted that the woman was positive for hepatitis A and not C. There are no contrary opinions of record. Throughout the appeal, the Veteran has submitted statements in support of his claim; that he contracted hepatitis C during his active duty service. It is not in dispute that the Veteran has a current diagnosis of hepatitis C; VA records clearly document he has such disease. Therefore, the first element of service connection, whether for direct or presumptive service connection, is met. As for presumptive service connection and service connection based on continuity of symptomatology, as previously noted, hepatitis C is not a chronic disease subject to such forms of service connection. 38 C.F.R. §§ 3.303, 3.307, 3.309. Therefore, presumptive service connection or service connection based on continuity of symptomatology is not warranted. As far as direct service connection, the Board notes that the Veteran’s service treatment records are silent for any complaints, treatment or diagnosis of hepatitis C. In addition, the Veteran did not exhibit symptoms of or was diagnosed with hepatitis C, within one year of service discharge. However, as the Veteran has alleged that his hepatitic C began during service as a result of his multiple sexual partners to include his documented contact with a woman with hepatitis A, the Board finds that in the light most favorable to the Veteran, the in-service element for direct service connection has been met. However, there is no objective medical evidence suggesting that the Veteran’s disease is related to service. It was not manifested in service, and there is no probative evidence that it is related to a risk factor therein. The Board notes the argument by the Veteran that he had multiple sexual partners during service, to include with a woman positive for hepatitis A. However, a close review of the record found no evidence to support the contention that the Veteran’s current hepatitis C was contracted during service or had any etiological relationship to his possible hepatitis A exposure. Specifically, the January 2019 VA examiner found no objective evidence of an etiological relationship between the Veteran’s current hepatitis C and his active duty service. Furthermore, as previously noted, there are no contrary medical opinions of record. While a layperson is certainly competent to identify risk factors for hepatitis C, whether such disease is attributable to a specific risk factor identified is a medical question beyond the scope of common knowledge and requires medical expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). There is no competent evidence in the record that attributes the Veteran’s hepatitis C to a risk factor in service. The Board notes that the January 2019 VA examiner’s opinion against the Veteran’s claim is supported by rationale. Furthermore, the Board finds the January 2019 opinion to be not only highly probative evidence in this matter, but as the only etiological opinion of record, persuasive. Consequently, service connection for hepatitis C is not warranted. Consequently, the Board finds that the Veteran’s hepatitis C did not manifest during service and is not shown to be causally or etiologically related to a disease or injury incurred in or aggravated during active service. Therefore, service connection for such claimed disorder is not warranted. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. Entitlement to service connection for renal disease, to include as secondary to hepatitis C, is denied. The Veteran contends that service connection is warranted for renal disease as a result of his active duty service. Specifically, he contends that his hepatitis C caused or aggravated his renal disease. The Veteran’s service treatment records are silent for any complaints, treatment or diagnosis of renal disease. However, post-service treatment records reflect the Veteran’s complaints of and treatment for renal disease, to include dialysis. Furthermore, the Veteran was diagnosed with renal disease in approximately 2013. In January 2019 the Veteran underwent a VA Kidney Conditions examination with an accompanying DBQ. The Veteran stated that he believed his kidney condition was the result of his hepatitis C. Furthermore, he reported that he started on dialysis three times a week and that he sometimes had to have daily dialysis due to poor sodium control. The examiner opined that the Veteran’s renal disease was less likely than not proximately due to or the result of the Veteran’s service-connected condition. The examiner provided the rationale that there was no objective medical evidence in the established medical literature establishing a etiological relationship between chronic kidney failure and hepatitis C. Throughout the appeal, the Veteran has submitted statements in support of his claim. The Veteran has contended that his hepatitis C has caused or aggravated his chronic kidney failure or renal disease. However, the Veteran has provided no additional arguments or support for his contentions. It is not in dispute that the Veteran has a current diagnosis of renal disease; VA records clearly document he has such. However, there is nothing to suggest that the disease is related to service. The Board notes that the Veteran has not contended, and the evidence does not show, that renal disease had its onset during service, within one year of separation from service, or is otherwise causally related to the Veteran’s military service. In the instant case, the Board finds that an opinion regarding such matter is not necessary since, as will be discussed below, there is no evidence of the Veteran’s renal disease for many years following service. Furthermore, the Veteran’s service treatment records are entirely negative for any complaints, treatment, or diagnoses referable to renal disease. In addition, the record does not show a diagnosis of renal disease for many years post-service. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (2008) (claims which have no support in the record need not be considered by the Board as the Board is not obligated to consider “all possible” substantive theories of recovery. Where a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory). Rather, as noted previously, the Veteran claims that his renal disease is secondary to, was caused or aggravated by, his hepatitis C, and therefore direct and presumptive service connection are not warranted. As for secondary service connection, for the reasons fully discussed in the section above, the Board has found that service connection for hepatitis C is not warranted as the most probative evidence of record shows that hepatitis C did not onset during service and was not related to service. As such, the Board finds that under the law, the Veteran lacks legal grounds to establish entitlement to service connection for renal disease on a secondary basis. See Sabonis v. Brown, 6 Vet. App. 426 (1994). In Sabonis, the Court held that in cases in which the law and not the evidence is dispositive, a claim for entitlement to VA benefits should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. Insofar as service connection is not in effect for the disability claimed by the Veteran to have proximally caused his renal disease, service connection on a secondary basis is not applicable under the law. Furthermore, the January 2019 VA examiner specifically found that while the Veteran had renal disease, such was less likely than not proximately due to or caused by his hepatitis C. The examiner noted that there is nothing in the medical literature which suggests or supports a causal connection between hepatitis C and renal disease. Furthermore, while the January 2019 examiner failed to discuss the aggravation prong of secondary service connection, as previously noted the Veteran is not service connected for hepatitis C and therefore, secondary service connection based on such is barred by law. Therefore, secondary service connection is not warranted. The Board has also considered the Veteran’s statements that his renal disease is related to his hepatitis C. In this regard, a layperson is competent to report on that of which he or she has personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, the question of causation or aggravation of renal disease involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. In this regard, such an opinion requires specialized knowledge of several internal bodily systems. There is no indication that the Veteran possesses such specialized knowledge. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran’s opinion regarding the etiology of his renal disease is non-probative evidence. See Jandreau, supra; Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Moreover, the Veteran has offered only conclusory statements regarding the relationship between his renal disease and his hepatitis C. In contrast, the VA examiner took into consideration all the relevant facts in providing her opinion. Therefore, the Board accords greater probative weight to the VA examiner’s opinion. Consequently, the Board finds that the Veteran’s renal disease is not shown to be causally or etiologically related to a disease or injury incurred in or aggravated during active service and is not caused or aggravated by any of the Veteran’s service-connected disabilities. Therefore, service connection for such claimed disorder is not warranted. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Unger, 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.