Citation Nr: A20003621 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 190814-25535 DATE: March 26, 2020 ORDER Entitlement to service connection for hepatitis C is denied. Entitlement to service connection for cirrhosis of the liver as secondary to hepatitis C is denied. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran’s hepatitis C was not manifest during active service, and is not shown to be causally or etiologically related to an in-service event, injury, or disease. 2. The Veteran is not service-connected for hepatitis C, and his cirrhosis of the liver is not due to or aggravated by a service-connected disability or otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for hepatitis C have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2019). 2. The criteria for service connection for cirrhosis of the liver, as secondary to hepatitis C, have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 1978 to April 1981. During his period of service, he earned the Marksman Badge (M-16 Rifle), Expert Badge (Hand Grenade), and Army Commendation Medal. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to prevail on a claim of service connection, generally, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a) (2019). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b) (2019); Allen v. Brown, 8 Vet. App. 374 (1995). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. 1. Entitlement to service connection for hepatitis C The Veteran contends that he is entitled to service connection as a hepatitis C that is related to his military service. Specifically, the Veteran contends that he contracted hepatitis C as result of receiving inoculations by use of jet injector guns. The AOJ found that the Veteran had been diagnosed with a disability. His VA hepatitis, cirrhosis and other liver conditions examination that was completed on January 18, 2019 provided a diagnosis of hepatitis C. Thus, the current disability criterion for service connection is met. See Shedden, supra. Next, the Board must consider whether the Veteran sustained a disease or injury in service. With regard to an in-service disease or injury, as indicated above, the Veteran contends that he contracted hepatitis C as result of receiving immunizations, inoculations, and vaccinations by use of multi-use jet injector guns. The Veteran’s service treatment records document a referral to the immunization clinic in December 1979. Though the treatment note fails to indicate whether received an immunization or if an air gun injector was used, the Board will afford the Veteran the benefit of every doubt and presume for purposes of this decision that he was immunized using a jet injector gun. As such, the Veteran has satisfied the second element for service-connection. See Shedden, supra. Even assuming the Veteran received immunization via air gun injector during his active service, it must be determined that the Veteran’s currently diagnosed hepatitis C is related to service. The Board finds this element has not been met. The Veteran appeared for a VA hepatitis, cirrhosis and other liver conditions examination in January 2019. The examiner noted that the Veteran had a history of drug and alcohol use, high-risk sexual behavior, and other direct percutaneous exposure to blood, such as by tattooing. The Veteran self-reported that he applied two tattoos to his left arm prior to service. History of two tattoos on the left arm were noted upon entrance in 1978. The examiner opined that it was less likely than not that the Veteran’s hepatitis C with residual liver cirrhosis was due to gun injector exposure with military vaccinations. In support of his opinion, the examiner cited Centers for Disease Control and Prevention (CDC) literature that explained gun injectors did not become easily contaminated after use. The examiner further opined that the Veteran’s hepatitis C was more likely due to his other risk factors, to include his tattoos. In light of the negative nexus opinion and lack of positive opinion to contradict the negative evidence, there is no basis for a grant of service connection for hepatitis C. In reaching this conclusion, the Board finds the January 2019 VA examination report to have great evidentiary weight, as the opinion reflects a comprehensive and reasoned review of the entire evidentiary record. The VA examiner reviewed the Veteran’s claims folder and medical history and examined the Veteran before rendering the medical opinion. Consideration has also been given to the Veteran’s contentions that his hepatitis C is related to immunizations administered in service. Although laypersons are sometimes competent to provide opinions on certain medical questions, the specific issue in this case falls outside the realm of common knowledge of a layperson, as it involves making definitive clinical diagnoses based on knowledge of hepatology. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). While the Veteran is certainly competent to report what he experienced, he is not competent to ascertain the etiology of any current condition, as the causative factors for such are not readily subject to lay observation. See Layno v. Brown, 6 Vet. App. 465 (1994); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). His assertions are, therefore, not competent evidence of a medical nexus. Although the Board is sympathetic to the Veteran’s claim, the preponderance of the evidence is against a finding that service connection for vertigo is warranted. Accordingly, the claim must be denied. In reaching this 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. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2019); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). 2. Entitlement to service connection for cirrhosis of the liver as secondary to hepatitis C The Veteran contends that he is entitled to service connection for cirrhosis of the liver as secondary to hepatitis C. The Board concludes that, while the Veteran has a diagnosis of cirrhosis of the liver, the determination above regarding service connection for hepatitis C does not allow for entitlement on secondary basis for cirrhosis of the liver. Thus, the second element of secondary service connection is not met. See Wallin, supra. Where, as here, service connection for the primary disability has been denied, the Veteran cannot establish entitlement to service connection for a secondary condition as a matter of law. See 38 C.F.R. § 3.310(a), (b) (providing for service connection for a disability only where such disability is proximately due to, the result of, or aggravated by, a disease or injury that is already service-connected); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In addition, the Veteran has not alleged, and the evidence does not support, that the Veteran’s cirrhosis of the liver is directly related to service. Thus, the nexus element for direct service connection is not met. See Shedden, supra. (CONTINUED ON THE NEXT PAGE)   Accordingly, the Board finds that the claim of entitlement to service connection for cirrhosis of the liver, as secondary to hepatitis C, must be denied. In reaching this 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 of entitlement to service connection, that doctrine is not applicable. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2019); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Joseph, 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.