Citation Nr: 20034575 Decision Date: 05/18/20 Archive Date: 05/18/20 DOCKET NO. 17-27 445 DATE: May 18, 2020 ORDER Entitlement to service connection for hepatitis C is denied. FINDING OF FACT Hepatitis C was not incurred in or aggravated by service. CONCLUSION OF LAW The criteria for service connection for hepatitis C have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty as a helicopter repair technician in the United States Army from January 1976 to October 1978. The Veteran died in December 2018. The appellant is the Veteran's surviving spouse and was appointed a substitute in this appeal in May 2019. 38 U.S.C. § 5121A. This matter comes before the Board of Veterans' Appeals (Board) from a May 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty. 38 U.S.C. §§ 1110, 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). During his lifetime, the Veteran was diagnosed with hepatitis C, which is not listed as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for "chronic" in-service symptoms and "continuous" post-service symptoms do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Hepatitis C The Veteran's service treatment records (STRs) are associated with the claims file. In an August 1976 report of medical examination at enlistment, the clinical evaluation was normal for all systems. See STR-Medical, p.8. The Veteran’s service treatment records (STRs) are silent as to any complaints, treatment, or diagnosis of hepatitis C or the administration of a blood transfusion. The only disease noted in the Veteran’s STR’s was from May 1976, when he stated he had “crabs”. See March 2009 STR-Medical, p.58. In a September 1978 report of medical examination at discharge, the clinical evaluation was normal for all systems, except for an identifying tattoo on the left shoulder. See March 2009 STR-Medical, p.5. In an October 2001 preventive health screening note, the Veteran was given an educational handbook that included hepatitis C prevention and treatment. At this time a laboratory test was ordered to see if the Veteran had hepatitis C. See February 2009 Medical Treatment Record-Government Facility, p.33. In an October 2001 VA treatment note, a clinician gave the Veteran a hepatitis C assessment and noted that he had risk factors for the condition including having a history of alcohol abuse; receiving a blood transfusion prior to 1992; the Veteran having tattoos and a history of abnormal ALT/SGPT levels. See April 2014 Capri, p.199. In a December 2001 VA treatment note, the Veteran was given a physical assessment. The clinician gave an initial impression that the Veteran was positive for hepatitis C and was admitted for substance abuse treatment. See February 2009 Medical Treatment Record-Government Facility, p.9. In a May 2008 Social Security Administration (SSA) record, an examiner noted that the Veteran had been diagnosed with hepatitis C 3 years prior, in 2005, but had never been treated. The examiner also noted that the Veteran indicated that he had dark stool a year prior, denied weakness, had no gum bleeding and did not know the viral load or his liver function condition. See February 2017 Medical Treatment Records-Furnished by SSA, p.68;69. In an April 2009 private treatment record, a clinician indicated that the Veteran reported a history of hepatitis C after a blood transfusion. There were no details on the date and circumstances of the transfusion. See July 2010 Medical Treatment Record-Non-Government Facility, p.33. In an August 2014 VA psychology note, the Veteran was referred for a psychological evaluation regarding possible initiation of anti-viral treatment for hepatitis C. During the evaluation the Veteran stated that he was diagnosed with hepatitis in service. However, after further review of the Veteran’s STR’s there were no records indicating a diagnosis. See February 2017 Capri, p.296. In another August 2014 psychology note, the Veteran participated in an interview for treatment of Hepatitis C. The Veteran indicated that he saw a note in his STR’s back in the 70’s for hepatitis. However, as discussed below the Veteran’s records were silent for hepatitis C. In addition, the clinician noted that at that time the Veteran did not have a history for treatment for hepatitis C and without certainty the Veteran indicated that he possibly contracted the disease from service, but he did not know how he contracted the disease. See April 2015 Capri, p. 85. In a September 2014 VA treatment record, a clinician noted that the Veteran had hepatitis C genotype 2, and that the treatment duration was 12 weeks. See February 2017 Capri, p.281. In a June 2015 notice of disagreement (NOD), the Veteran stated that he was exposed to hepatis C by being exposed to a lot of blood in the medicine unit while in-service. However, he did not work in a medicine unit. His military occupational specialty was helicopter repairman and crew chief qualified for flight duty. There are records of treatment at Army clinics but not for injury or disease suggesting blood transfusions or exposure to other patient’s blood products. The Veteran stated that the condition could have been caught through the eyes, mouth and cuts. The Veteran acknowledged that his medical records did not reveal he had hepatitis C, but he believed he may have caught the disease from immunizations at the time of enlistment. See June 2015, NOD, p.2. In May 2017, the Veteran submitted a form 9. The Veteran indicated that the VA did not consider his statement about being exposed to blood while on active duty. See May 2017, Form 9. In June 2018, the Veteran was given a hepatitis A &B vaccine. See November 2018 Capri, p.423. In an August 2018 VA treatment record, a clinician indicated that the findings were consistent with chronic hepatitis C with cirrhosis. See November 2018 Capri, p.33. After a complete review of the Veteran’s records, the Board finds that service connection for hepatitis C is not warranted. Though the Veteran was diagnosed with hepatitis C prior to his death, the weight of the evidence, lay and medical, demonstrates no link between the onset of the hepatitis C and service. Post-service treatment records reflect that the Veteran first tested positive for hepatitis C in December 2001, over 23 years after separation from service. This is a gap between separation and diagnosis. See Maxson v. Gober, 230 F.3d 1330, 1333 (lengthy period of absence of medical complaints for condition can be considered as a factor for consideration in deciding a claim). The Veteran did not contended that he incurred the infection in service from immunizations and routine medical clinic treatment but that is not supported by the record. He did not have any symptoms during or prior to the diagnosis. In addition, post-service VA treatment records show the Veteran had multiple high-risk factors for hepatitis C after service including alcohol abuse, a blood transfusion prior to 1992, tattoos, and a history of abnormal ALT/SGPT levels. While the Veteran’s entrance examination did not note a tattoo that was noted at discharge, there are no records indicating any tattoo’s he may have had in-service caused his hepatitis C, and the Veteran did not describe the circumstances of acquiring a tattoo as a source of the infection. In this case, the Veteran’s STRs are negative for any findings, symptoms or diagnosis of hepatitis C in service. There is no medical evidence to indicate that the Veteran was exposed to any known risk factors for this disease while in-service other than the appearance of a tattoo on the discharge physical examination and the generalized claim that immunizations were the source of the infection. However, the Veteran later made contradictory statements indicating that he did not know when he contracted the illness and there is no evidence of record to corroborate the Veteran’s statements. As such, the evidence suggesting a connection between the Veteran's disability that was present at the time of his death and his military service consists solely of lay statements from the Veteran. Although lay witnesses are competent to provide evidence regarding matters that can be perceived by the senses, they are not competent to provide an opinion concerning the etiology of complex medical issues. Therefore, the Veteran is competent to report symptoms associated with hepatitis C, but he is not competent to offer an opinion regarding its cause. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469. The Board recognizes that the Veteran was not afforded a VA compensation and pension examination for hepatitis C. A medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but: (1) contains competent evidence of a current diagnosed disability or persistent or recurrent symptoms of a disability; (2) establishes that an event, injury, or disease occurred in service or certain diseases manifested during an applicable presumptive period for which the claimant qualifies; and (3) indicates that the disability or symptoms may be associated with the established event, injury or disease in service or with another service-connected disability. McClendon v. Nicholson, 20 Vet. App. 79 (2006). VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to and mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). The Board finds that the standards of McClendon were not met in this case. The evidence of record does however show that the Veteran had a diagnosis of hepatitis C; but there is no evidence to connect the condition to the Veteran’s time in-service since the STR’s are silent for the condition. Also, VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to" and mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination. See Waters, supra. Thus, the Board finds that a VA examination for Hepatitis C was not warranted. Based on the competent and credible lay and medical evidence of record, the preponderance of the evidence is against a finding that the Veteran's hepatitis C was incurred in service or is attributable to any aspect of active duty service. As the preponderance of the evidence is against this claim, the "benefit of the doubt" rule is not for application, and the Board must deny the claim. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Long-Ellis, 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.