Citation Nr: 21000066 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 12-34 207 DATE: January 4, 2021 ORDER Service connection for hepatitis C is denied. FINDING OF FACT The preponderance of the evidence is against finding that hepatitis C began during active service or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for hepatitis C are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from May 1969 to January 1972. These issues were previously before the Board. In March 2020, the Board remanded the appeal to the agency of original jurisdiction (AOJ) for additional development. Specifically, the Board directed the AOJ to schedule a VA examination for the Veteran’s hepatitis C. In October 2020, the Veteran was afforded a VA examination for his hepatitis C. The Board finds that the AOJ substantially complied with the remand directives and no further action is necessary in this regard. Stegall v. West, 11 Vet. App. 268 (1998). Following evidentiary development, the VA Appeals Management Center (AMC) continued the previous denials in a supplemental statement of the case (SSOC) issued in October 2020. The Veteran’s VA claims file has been returned to the Board for further appellate proceedings. 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 a disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) 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). Service connection for certain chronic diseases may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year (three years for active tuberculous disease and Hansen’s disease; seven years for multiple sclerosis) from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). The term “chronic disease” refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). For such diseases, the second and third elements of service connection may be established by demonstrating (1) that a condition was “noted” during service; (2) post-service continuity of symptoms; and (3) medical, or, in certain circumstances, lay evidence of a link between the present disability and the continuity of symptoms. 38 C.F.R. § 3.303(b); see Walker, 708 F.3d at 1340. If a chronic condition is noted during service or during the presumptive period, but the chronic condition is not “shown to be chronic, or where the diagnosis of the chronicity may be legitimately questioned,” i.e., “when the fact of chronicity in service is not adequately supported,” then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed.” Id. at 1336; 38 C.F.R. § 3.303(b). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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. Id.; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). “It is in recognition of our debt to our veterans that society has [determined that,] [b]y tradition and by statute, the benefit of the doubt belongs to the veteran.” Gilbert, 1 Vet. App. at 54. Service connection for hepatitis C The Veteran contends that his hepatitis C was caused by service, specifically from having intercourse with women during service. The Veteran reported that there was no bleeding during vaginal intercourse and that he did not engage in rectal intercourse. After considering the evidence of record, the Board concludes that the most probative evidence establishes that the Veteran’s hepatitis C is not causally related to his active service or any incident therein, to include sexual intercourse during service. The Veteran’s service treatment records do not show the Veteran complaining of, receiving treatment for, or being diagnosed as having hepatitis C or sexually transmitted diseases. There is also no record of a hepatitis C diagnosis until decades after discharge. VA Medical Center treatment records show that the Veteran had positive hepatitis C antibodies but cleared the virus in December 2010. The December 2012 VA examiner opined that the Veteran had been diagnosed as having hepatitis C and that the Veteran engaged in high risk sexual activity. It is unclear from the examination whether the Veteran engaged in high risk sexual activity during or after service. The October 2020 VA examiner opined that the Veteran’s hepatitis C was less likely than not caused by service. The examiner noted that the Veteran had “zero current hepatitis” and no history of sexually transmitted diseases. The Veteran denied intercourse during bleeding, rectal intercourse, or traumatic sex. He also stated that he was not with a prostitute or high-risk partner. The examiner explained that the Veteran’s sexual encounters in Vietnam with a healthy female soldier was low risk based on the lack of risk factors above. The Board assigns great probative weight to the October 2020 VA examiner’s opinion as it is based on the Veteran’s statements, medical evidence of record, and supported with adequate rationale. There are also no medical opinions to the contrary. Moreover, to the extent the Veteran asserts that a relationship exists between his hepatitis C and service, the Board finds that such assertions do not provide persuasive evidence in support of the claim. The matter of the medical etiology of the disability here at issue is one within the province of trained medical professionals. Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). Although lay persons are competent to attest to matters within their own personal knowledge, to include symptoms experienced or observed (as appropriate), as well as to provide opinions on some medical issues, such as those perceived through the senses (see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)), here, the etiology of the Veteran’s hepatitis C is a complex medical matter that falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, lay assertions as to the etiology of the Veteran’s hepatitis C have no probative value. In summary, the absence of competent medical or scientific evidence documenting a relationship between the Veteran’s hepatitis C and his purported sexual activity during service, service connection on a direct basis must be denied. Therefore, the evidence in this case is not so evenly balanced as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 54. The preponderance of the evidence is against the Veteran’s claim, and as such entitlement to service connection for hepatitis C is denied. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Yun 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.