Citation Nr: 21002222 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 20-06 011 DATE: January 13, 2021 ORDER Entitlement to service connection for autoimmune hepatitis is denied. Entitlement to service connection for residuals of a left hernia operation is denied. Entitlement to service connection for painful scars associated with residuals of a left hernia operation is denied. FINDINGS OF FACT 1. The Veteran’s autoimmune hepatitis is not secondary to treatment for his service-connected lumbosacral strain, and is not otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that the Veteran’s left hernia/residuals associated with his March 2001 operation began during active service, or are otherwise related to an in-service injury or disease. 3. The preponderance of the evidence is against finding that painful scars associated with residuals of a left hernia operation began during active service, or are otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for autoimmune hepatitis due to service or service-connected lumbosacral strain are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for service connection for residuals of a left hernia operation are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for painful scars associated with residuals of a left hernia operation are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Air Force from August 1959 to October 1984. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. 1. Entitlement to service connection for autoimmune hepatitis is denied. The Veteran contends that he incurred hepatitis as a result of treatment for his service-connected lumbosacral strain. Specifically, the Veteran contends that he was prescribed prescription painkillers from 1962 to 1984 for a back and thigh condition. Additionally, the Veteran contends that his physicians have told him that he incurred hepatitis as a result of taking prescription medication for many years. See February 2018 Notice of Disagreement; January 2020 VA Form 9. Because the Veteran has not raised, and the record does not reasonably raise, entitlement to direct service connection, the Board’s adjudication will consider only entitlement to secondary service connection. Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. The question for the Board is whether the Veteran has a current disability that is proximately due to or the result of, or /was aggravated beyond its natural progress by treatment for his service-connected lumbosacral strain. The Board concludes that, while the Veteran has a current diagnosis of autoimmune hepatitis, the preponderance of the evidence is against finding that the Veteran’s autoimmune hepatitis is proximately due to or the result of, or aggravated beyond its natural progression by service-connected disability. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). The Veteran received a VA examination in September 2020 to determine the nature and etiology of his condition. The VA examiner reported that the Veteran did not have a diagnosis of hepatitis C but rather autoimmune hepatitis. He reported that there was no objective evidence demonstrating related complaints or treatment during service, noting that the Veteran was not diagnosed with autoimmune hepatitis until approximately twenty-one years following his 1984 separation. The examiner explained that it was less likely than not (less than 50 percent probability) that the Veteran’s condition was caused or aggravated by service-connected disability because autoimmune hepatitis is not caused by a lumbosacral strain or associated medications but rather represents an autoimmune process. Although the Veteran reports that his physicians have attributed his condition to the use of prescription drugs – and while a differential diagnosis of hepatitis as a result of a drug reaction was initially considered in September 2005 – the Board notes that autoimmune hepatitis was confirmed upon biopsy in October 2009. See, e.g., December 2016 VA Liver Progress Note, Outpatient (“autoimmune hepatitis confirmed on biopsy”); see also October 2009 biopsy report, comparing histological results to September 2005 biopsy report following initiation of clinical treatment for autoimmune hepatitis (“biopsy shows moderate degree of lymphoplasmacytic infiltrate in a portal and lobular pattern, consistent with patient’s history of autoimmune hepatitis.”) (emphasis added). Additionally, the Board notes that there is no medical opinion of record indicating that the Veteran’s autoimmune hepatitis has been caused or aggravated by his treatment for a lumbosacral strain. To summarize, the record establishes that the Veteran’s hepatitis is related to an autoimmune condition, as opposed to treatment for a lumbosacral strain. The preponderance of the evidence is against finding that the Veteran’s hypertension is due to his active military service. The benefit of the doubt does not apply, and the claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). 2. Entitlement to service connection for residuals of a left hernia operation is denied. 3. Entitlement to service connection for painful scars associated with residuals of a left hernia operation is denied. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 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). The Veteran contends that while conducting his retirement physical, the examining physician told him that he had a hernia and that it would cause problems in the future. He contends that his hernia began to bother him in 2003 and that he had an operation thereafter to repair it. The Board concludes that, while the Veteran underwent a left inguinal hernia repair operation in March 2001 (notably, two years before the Veteran has claimed to have begun experiencing symptoms), the preponderance of the evidence is against finding that the Veteran’s condition began during active service, or is otherwise related to an in-service injury, event, or disease. See March 2001 Kaiser Permanente Operative Note. As an initial matter, although the Veteran has not received a VA examination related to his hernia, the Board finds that an examination is not required because there is neither evidence of in-service incurrence or continuity of symptoms since service. Therefore, it is insufficient to trigger VA’s duty to assist by providing a medical opinion regarding service connection. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006); Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The Board notes that during the Veteran’s retirement physical, the Veteran wrote that he was in good health but had joint degeneration in his spine and left-sided chest pain. He certified that the information was complete and true to the best of his knowledge and signed his name to the report of medical history. On this same form, when asked if he had ever had or had now a rupture/hernia, the Veteran responded no. The examining physician observed that the Veteran had a number of conditions and recommended that the Veteran follow up on some of these issues after retirement. (“Recommendations – Follow-up on elevated cholesterol with VA Hospital after retirement.”) However, the examiner did not indicate that the Veteran had symptoms consistent with a hernia. There is no evidence that a hernia was present during the Veteran’s period of active duty or manifested to a compensable degree within one year of separation. Furthermore, there is no competent medical or lay evidence demonstrating continuity of symptoms since service. There is no medical opinion of record indicating that the Veteran’s hernia was incurred in or otherwise related to active service. The record contains no probative evidence that the Veteran’s hernia is related to active service. The Board notes that the Veteran is considered competent to report the observable manifestations of his claimed disability. Layno v. Brown, 6 Vet. App. 465 (1994). However, to the extent that such assertions purport to establish a diagnosis or the etiology of any such disability, such assertions do not provide persuasive support for the claim, as the Veteran is not shown to possess the medical training to render competent opinions about such complex medical matters. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). In summary, the record establishes that a hernia was not present during the Veteran’s active service nor was it manifest to a compensable degree within one year of separation from active service. Moreover, the record contains no indication that the Veteran’s condition is causally related to his active service or any incident therein. Thus, the Board finds that the preponderance of the evidence is against a grant of service connection for residuals of a hernia operation, to include scars. In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable, and service connection must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Robert N. Scarduzio Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Hennessy, 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.