Citation Nr: 20027561 Decision Date: 04/20/20 Archive Date: 04/20/20 DOCKET NO. 16-01 331 DATE: April 20, 2020 ORDER Entitlement to service connection for hepatitis C is denied. FINDING OF FACT The preponderance of the evidence weighs against finding that the Veteran’s hepatitis C began during active service or is otherwise related to an in-service injury or disease, including as due to exposure to blood borne pathogens. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for hepatitis C have not been met. 38 U.S.C. §§ 1110, 5107 (2014); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service with the United States Army from November 1989 to June 1993. In a January 2016 substantive appeal, the Veteran requested a video conference hearing. In August 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. Pursuant to a March 2019 Board decision, this matter was remanded for additional development to include scheduling the Veteran for a new VA examination. As the requested development is now complete, this matter has been returned to the Board for appellate consideration. Duty to Assist and to Notify VA is required to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2018). Copies of compliant VCAA notices were located in the claim’s file. VA’s duty to assist includes providing a thorough and contemporaneous medical examination, especially where it is necessary to determine the current level of a disability. Peters v. Brown, 6 Vet. App. 540, 542 (1994). In this case, neither the Veteran nor her representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Thus, upon careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service connection, generally Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C. § 1110, 1131 (2014); 38 C.F.R. §§ 3.303 (a), 3.304 (2018). Entitlement to service connection benefits is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and, (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the medical ‘nexus’ requirement). See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); 38 C.F.R. § 3.303 (a) (2018). Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (2014); 38 C.F.R. § 3.102 (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the Veteran. Id. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence). Rather, the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue. 1. Entitlement to service connection for hepatitis C The Veteran contends that her current diagnosis of hepatitis C is causally related to active service, to include as due to exposure to blood borne pathogens while working as a medical technician. She also reported risk factors for the development of hepatitis C due to an in-service sexual assault and related treatment for a sexually transmitted disease. In analyzing the Veteran’s claim, the threshold inquiry before the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of hepatitis C, and the evidence shows exposure to blood borne pathogens and in-service treatment for a sexually transmitted disease, the preponderance of the evidence weighs against finding that the Veteran’s hepatitis C began during service or is otherwise related to an in-service injury, event, or disease. Service treatment records show normal physical findings at enlistment in September 1989. In a report of medical history, the Veteran acknowledged treatment for appendicitis (1983). No related residual conditions were indicated. In May 1991, the Veteran was treated for unusual vaginal bleeding and a recent elective termination of pregnancy. A diagnosis of Chlamydia was indicated. In July and December 1991, the Veteran was treated for a vaginal discharge. She endorsed a recent history of unprotected intercourse. Diagnostic testing found no evidence of a sexually transmitted disease (STD). Negative findings were also noted in November 1990, and January 1991. Post-service treatment records indicate that the Veteran was diagnosed with hepatitis C in July 2000. Thereafter, she underwent interferon therapy from June 2003 until March 2004. Liver biopsies were performed in March 2005 and November 2010. In September 2015, a primary care treatment record indicated that Veteran was prescribed oral medication, Harvoni. Diagnostic testing, dated March 2016, were silent for any evidence of a viral infection, to include hepatitis C. The Veteran was advised of the possibility of reinfection due to exposure or risk-related behaviors. In October 2011, the Veteran underwent a VA examination. A current diagnosis of hepatitis C was acknowledged. Current symptoms included near constant fatigue and intermittent right quadrant pain. No incapacitating episodes were reported. Possible risk factors were listed as exposure to blood or blood products prior to 1992. On or about 1983, the Veteran underwent an appendectomy at the age of 13. Due to a ruptured appendix, she received a blood transfusion and indicated that multiple surgeries and prolonged hospitalization were required. During active service, laparoscopic surgeries were performed in 1992 and 1993. No transfusions were reported. Pre-surgical blood screenings for hepatitis (HCV) antibodies yielded negative findings. Following the clinical evaluation, the examiner noted that an HCV virus is the most common cause of post-transfusion hepatitis. There is no evidence that the Veteran received a blood transfusion during active service. Further, she denied suffering any injury due to a contaminated needle during technical training in phlebotomy. According to the examiner, universal infection precautions were practiced in all health care settings prior to the Veteran’s induction into active service. Such precautions include avoiding contact with patients’ bodily fluids, by means of the wearing of nonporous articles such as medical gloves, goggles, and face shields. Due to the noted precautions, HCV infections from occupational exposures are uncommon for healthcare workers. Even the risk of accidental/occupational exposure remains very low; on average less than 2 percent. Tattoos are rated as a much lower risk factor compared to transfusion prior to 1992. Some studies have estimated the risk of acquiring Hepatitis C from a blood transfusion prior to screening for HCV to be as high as 8-10 percent. Considering the use of universal precautions for health care workers and no documented or known exposures to blood products while working as a medical specialist during active service, the examiner opined that it is at least as likely as not that the Veteran’s current hepatitis C is related to her appendectomy-related transfusion prior to service. It was further concluded, it is less likely as not that her condition was incurred or caused by her work as medical specialist during active service. In August 2018, the Veteran testified at a Board hearing. Therein, she indicated that her first duty station was located in Augsburg, Germany. While stationed in Germany, she worked as a medical technician in a military hospital. Her assigned duties included drawing blood, giving immunizations, handling soiled linen/instruments, and assisting during minor surgical procedures. Thus, she asserts likely exposed to contaminated blood products in performance of her official duties. The Veteran also reported an in-service sexual assault and endorsed receipt of treatment for a sexually transmitted disease. In March 2019, the Board remanded this matter for additional development to include scheduling the Veteran for a new VA examination. The decision noted the October 2011 VA examination was inadequate. In reaching the stated conclusion, the Board acknowledged the examiner’s conclusion that the Veteran was exposed to Hepatitis C during her appendectomy at the age of 13, and not her work as medical technician during active service. However, the medical evidence is silent for a diagnosis of a viral infection or hepatitis C prior to or at the time of her enlistment. Moreover, in multiple lay statements, the Veteran reported possible exposure to contaminated fluids including blood products, needles used for immunizations, and handling soiled instruments while assisting with minor surgical procedures during active service. She also asserted in-service treatment for STDs, to include following an alleged military sexual assault. On remand, the Board directed the VA examiner to consider the Veteran’s lay contentions regarding exposure to in-service contaminants. Accordingly, the Veteran underwent a subsequent VA examination in December 2019. During the clinical evaluation, the Veteran indicated that she was stationed in Augsburg, Germany where she worked as a medical technician at a military hospital. Her assigned duties included drawing blood, giving immunizations, handling soiled linen/instruments, and assisting during minor surgical procedures. She also reported that that on or about 1990, she was sexually assaulted by a fellow soldier and received in-service treatment for a sexually transmitted disease. Other in-service treatment included laparoscopic surgeries in 1992 and 1993. Pre-surgical blood screenings for hepatitis (HCV) antibodies revealed negative findings. At the age 13, on or about 1983, the Veteran underwent an appendectomy and received a blood transfusion. She contends that additional surgeries and prolonged hospitalizations were required. No diagnosis of hepatitis of was indicated. Post-service treatment records show that the Veteran was first diagnosed with hepatitis C, in July 2000. Thereafter, multiple forms of treatment were used to achieve remission. Following the clinical evaluation, the examiner found no evidence that the Veteran contracted hepatitis C following a blood transfusion or tattoo. A treatment record, dated December 2004, acknowledged a history of chronic hepatitis C which dated back 4 years earlier. While the Veteran acknowledged possible exposure to contaminants including blood transfusion, tattoos during her 20’s, and exposure to blood contaminants while working as a medical technician; diagnostic testing failed to show any evidence of a viral infection or hepatitis C during the relevant time periods. Therefore, the examiner opined that it is less likely than not that the Veteran had a diagnosis of hepatitis C that pre-dated active service. It was concluded that medical evidence failed to show a nexus or “causal linkage” between the Veteran’s hepatitis C and active service. In reaching the stated conclusion, the examiner noted that post-service treatment records show an infectious disease consultation note, dated December 2004, which referenced a diagnosis of hepatitis C rendered four years earlier. No formal diagnosis or complaints of symptoms were noted prior to July 2000. Accordingly, the examiner opined that it is less likely than not that the Veteran’s hepatitis C is causally related to active service. In making all determinations, the Board has fully considered all medical evidence and lay assertions of record. Specifically, the Board has fully considered all lay statements of record, to include statements from the Veteran and others which attest to her reports of an in-service sexual assault. Other statements reference her performance of service-related duties which included exposure to blood products. While the Veteran is generally competent to report on the onset of current symptoms, there is no evidence that she possesses the specialized skills and expertise necessary to render a complex medical opinion or opine as to the etiology of her current condition. Layno v. Brown, 6 Vet. App. 465, 470 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377. Further, mere conclusory or generalized lay assertions that an in- service event or illness caused a current disability are insufficient to establish nexus in the absence of competent medical evidence. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). To the extent the Veteran’s statements may be competent, the Board ultimately assigns greater probative weight to the medical evidence of record, to include the December 2019 VA opinion which attested to a review of the claims file, considered the lay statements of record, and rendered conclusions that were reasonably drawn from the record and provided supportive rationale. As previously indicated, service treatment records show normal physical findings at enlistment and separation. There was no reference to in-service treatment for hepatitis C or any related viral infection. On examination in December 2019, the examiner acknowledged a review of the claims file, the Veteran’s medical history and lay assertions. Following that review, it was noted that a diagnosis was first rendered in July 2000; approximately 7 years after separation. Thus, no causal linkage was found between the Veteran’s current diagnosis and active service. While the Board is sympathetic to the Veteran’s subjective belief that her hepatitis C was causally related to active service, to include as due to exposure to blood borne pathogens therein, the evidence of record does not support her contentions. Accordingly, as the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107 (b) regarding reasonable doubt are not for application. Thus, the Veteran’s claim of entitlement to service connection for hepatitis C must be denied. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Whitaker, 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.