Citation Nr: 20032914 Decision Date: 05/12/20 Archive Date: 05/12/20 DOCKET NO. 16-28 949 DATE: May 12, 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 was incurred in or is otherwise etiologically related to service. CONCLUSION OF LAW The criteria for service connection for hepatitis C have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Navy from January 15, 1971 to March 22, 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2018, the Board reopened and remanded the matter for further development, to include providing the Veteran a VA examination on the etiology of his hepatitis C. The Veteran was provided this examination in August 2019. In January 2020, the Board again remanded the matter to provide the Veteran with another VA examination on the etiology of his hepatitis C, as the August 2019 examination report did not substantially comply with the Board’s July 2018 remand directives. The Veteran was provided this examination in March 2020. The Board finds that the March 2020 examination report substantially complies with the Board’s prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for hepatitis C is denied. The Veteran contends he contracted hepatitis C as a result of service, either by receiving air gun vaccinations or being forced to share razors with fellow servicemembers. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) 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 in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In adjudicating a claim for VA benefits, 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(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Notably, medical records demonstrate that the Veteran received a positive hepatitis C screening in May 2010, following a blood test. This diagnosis was further confirmed in August 2014 and August 2019, when the Veteran’s blood tested positive for hepatitis C antibodies. The question for the Board is whether the Veteran’s current hepatitis C is casually or otherwise etiologically related to his military service. The Board finds that the preponderance of the evidence weighs against finding that the Veteran’s hepatitis C began during service or is otherwise etiologically related to service. Evidence against the Veteran’s claim comes from the March 2020 addendum VA examination required by the Board’s prior remand. The examiner reviewed the Veteran’s medical records and concluded that the Veteran’s hepatitis C is less likely than not related to the Veteran’s claimed in-service events. The rationale was that the Veteran had a history of intravenous drug use, which cited literature indicates is the highest risk factor for contracting hepatitis C. Moreover, the examiner explained and cited to literature showing that the timing of exposure to hepatitis C to infection is about two to 26 weeks. Thus, according to the examiner, if the Veteran had contracted hepatitis C during his time in the military, he would have suffered acute illness and been diagnosed with hepatitis C within that time frame. Here, there are no medical records within that time frame indicating treatment for hepatitis C and the Veteran was diagnosed with the disease approximately 40 years after he left service. In this regard, the Board points out that the passage of many years between discharge from active service and the lack of documentation of a claimed disability is a factor that tends to weight against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). The Board affords this opinion significant weight. The examiner’s opinion is probative because it is based on an accurate medical history, including the Veteran’s known in-service and post-service hepatitis C risk factors, and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board acknowledges that in 2014, the Veteran began qualifying his intravenous drug history as “only once” and that he “did not share apparatus.” This might indicate that it was improper for the March 2020 examiner to rely heavily on the Veteran’s intravenous drug use. However, prior to filing his claim and while receiving treatment at a hepatology clinic, the Veteran described his history of intravenous drug use generally as occurring during the “early 1970s.” In Harvey v. Brown, the United States Court of Appeals for Veterans Claims drew a credibility distinction between statements made for the purpose of receiving treatment and those made for the purpose of seeking compensation. See Harvey v. Brown, 6 Vet. App. 390, 393–94 (1994). Here, the Board draws a distinction between the Veteran’s pre-filing statements regarding a general history of intravenous drug use versus his post-filing statements attempting to narrow this general use to “only once” and without sharing an apparatus and finds the Veteran’s pre-filing statements more credible. In so finding, the Board concludes that the March 2020 examiner’s reliance on the Veteran’s history of intravenous drug use was proper. The Board notes that the Veteran submitted an article directed at lay persons indicating initial symptoms of hepatitis C can manifest as cold symptoms and that the Veteran’s service treatment records document treatment for cold symptoms in January and February 1971. However, at an August 2019 VA examination, the examiner explained that these 1971 symptoms were less likely than not the first indication of hepatitis C because the Veteran did not experience symptoms reflective of hepatitis C. For example, the examiner stated that hepatitis C manifests as a viral syndrome which may include fever, chills, malaise, abdominal pain, and gastrointestinal symptoms such as diarrhea, nausea, and vomiting, not the cold symptoms experienced by the Veteran in 1971. The record does include a January 2014 positive etiological opinion by one of the Veteran’s VA medical providers. The provider concluded it was at least as likely as not that he contracted hepatitis C from service. The provider admitted, however, that the Veteran had additional post-service risk factors, such as intravenous drug use. The provider did not discuss this risk factor and why she found the Veteran’s in-service risk factors to be just as likely as source of the Veteran’s hepatitis C. Moreover, the provider did not address the gap in time between the Veteran’s in-service exposure to hepatitis C risk factors and the Veteran’s eventual diagnosis approximately 40 years later. The opinion is thus inadequate towards finding service connection for hepatitis C because it does not contain proper consideration and analysis of the Veteran’s prior, relevant medical history. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). While the Veteran asserts that his hepatitis C was caused by the in-service events of sharing razor blades that resulted in cuts and/or air gun vaccinations, he is not competent to provide a medical opinion linking those events to his current hepatitis C. Opinions regarding the diagnosis and etiology of hepatitic C are complex and generally beyond the competency of a lay witness. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Veteran does not state, and the record does not reflect, that he has medical education, experience, or training, nor has he offered any basis in common lay knowledge to support his opinion. Consequently, the Board gives more probative weight to the March 2020 VA examiner’s opinion. The preponderance of the evidence is therefore against the claim, the benefit-of-the-doubt doctrine is not for application. The claim must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P.A. Infante 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.