Citation Nr: 21065620 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 15-37 509 DATE: October 26, 2021 ORDER Entitlement to service connection for hepatitis is denied. FINDING OF FACT The Veteran's hepatitis disability is not related to an in-service injury, disease, or event. CONCLUSION OF LAW A hepatitis disability was not incurred in active military service. 38 U.S.C. §§ 1101, 5107 (2012); 38 C.F.R. § 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1975 to December 1975 and had active duty for training in March 1976 and May 1977. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2019, the Veteran testified at a videoconference hearing in front of the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claim file. In May 2019, the Board reopened and remanded the claim of entitlement to service connection for hepatitis C. In April 2020, December 2020 and May 2021, the Board remanded the claim for further development. VA treatment records reflect that hepatitis B core antibody (HBcAb) IgM was noted in February 2001 and that the assessments on admission to an October 2002 hospitalization included hepatitis B. Pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009), the claim on appeal includes all forms of hepatitis. Parenthetically, the Board notes that the Veteran has a claim for entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD) that is also on appeal. This issue is still being developed in the remand status and will be the subject of a separate Board decision. Service Connection Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The term "Veteran" is defined in 38 U.S.C. § 101(2) (West 2002) as "a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable." The term "active military, naval, or air service" includes active duty, and "any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty." 38 U.S.C. § 101(24) (West 2002); 38 C.F.R. § 3.6(a) (2012); see Biggins v. Derwinski, 1 Vet. App. 474, 477-478 (1991). Active duty for training (ACDUTRA) is defined, in part, as "full-time duty under sections 316, 502, 503, 504, or 505 of title 32 [U. S. Code] or the prior corresponding provisions of law." 38 U.S.C. § 101(22) (West 2002); 38 C.F.R. § 3.6(c) (2020). The term inactive duty training (INACDUTRA) is defined, in part, as duty, other than full-time duty, under sections 316, 502, 503, 504, or 505 of title 32 [U. S. Code] or the prior corresponding provisions of law. 38 U.S.C. § 101(23) (West 2002); 38 C.F.R. § 3.6(d) (2020). Thus, with respect to the Veteran's Reserves service, service connection may only be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or an injury incurred or aggravated while performing INACDUTRA. 38 U.S.C. §§ 101(24), 106, 1110, 38 C.F.R. §§ 3.6, 3.303, 3.304. Service connection is generally not legally merited when a disability incurred on INACDUTRA results from a disease process. See Brooks v. Brown, 5 Vet. App. 484, 487 (1993). Certain evidentiary presumptions-such as the presumption of sound condition at entrance to service, the presumption of aggravation during service of preexisting diseases or injuries which undergo an increase in severity during service, and the presumption of service incurrence for certain diseases, which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service, are provided by law to assist veterans in establishing service connection for a disability or disabilities. 38 U.S.C. §§ 101, 1112, (West 2002); 38 C.F.R. § 3.304(b), 3.306, 3.307, 3.309 (2020). However, the advantages of these evidentiary presumptions do not extend to those who claim service connection based on a period of ACDUTRA or INACDUTRA. Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995) (noting that the Board did not err in not applying presumptions of sound condition and aggravation to appellant's claim where he served only on ACDUTRA and had not established any service-connected disabilities from that period); McManaway v. West, 13 Vet. App. 60, 67 (citing Paulson, 7 Vet. App. at 469-7, for the proposition that, "if a claim relates to period of [ACDUTRA], a disability must have manifested itself during that period; otherwise, the period does not qualify as active military service and claimant does not achieve veteran status for purposes of that claim."). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Factual Background and Analysis The Veteran alleges that his hepatitis is due to the following in-service risk factors: air-gun injections to administer vaccinations, high-risk sexual contact, sharing razors, getting an earring, and getting tattoos during active duty for training in Puerto Rico. The Veteran's service personnel records reveal that he had active duty for training in Puerto Rico in March 1976. In a June 2002 statement, the Veteran stated that while on active duty in 1975 he got a tattoo on his left arm and later got tattoos on his right arm and one on his back. The Veteran stated that one year later he got sick and then ended up in the civilian hospital with hepatitis. In a January 2003 statement, the Veteran stated that he contracted hepatitis C from exposure to blood while getting tattooed in service. The Veteran stated that he was very promiscuous and had many sexual partners and that he also had his ears pierced. The Veteran also stated that he used other service-member's razors while in service and indicate that he was hospitalized in late 1977 or early 1978. At the Veteran's March 2005 hearing, the Veteran testified that that he was 19 when he was diagnosed with hepatitis C and denied drug use until he was 29. The Veteran stated that the only exposure to hepatitis that he would had known of was from either "inoculations received in the Marine Corp" or from the three tattoos that he got overseas during training. In a submitted July 2011 statement, the Veteran contends that at the time of his wife's death in 1977, she had hepatitis C. The Veteran asserts that when he shot her, "there was blood everywhere and all over me from holding her in my arms every policeman and I had to get conglobing shots." The Veteran stated that one month later he was in the hospital with hepatitis C and "still in the Marine Corps." At the Veteran's January 2019 hearing, the Veteran testified that he didn't know that he had hepatitis C until his wife was killed. The Veteran stated that there was "blood all over me, all over the bed, the room" and that he was kept at the sheriff's department for two days until they told him that he had hepatitis C. The Veteran stated that when he entered service he was inoculated with "air guns" shooting into the side of his arm and that it wasn't too long afterwards that the sheriff's department found out the Veteran had hepatitis C. The Veteran stated that he did not receive treatment during this time until 2000. In an August 2020 submitted statement, the Veteran stated that he was sexually assaulted three times during boot camp and wondered if he contracted hepatitis C from these incidents. The Veteran's service treatment records reflect that he received numerous vaccinations from September 1975 to October 1975. The Veteran underwent a July 2019 VA examination. The examiner found the Veteran's claimed hepatitis C was less likely as not incurred in or caused by his active duty service as the Veteran's service treatment records were silent for diagnosis and treatment of this condition. In a submitted June 2020 VA opinion, the examiner noted that review of the claims record was performed to include the Veteran's statements, testimony, and Board decision. The examiner cited medical literature discussing the epidemiology and transmission of the hepatitis C virus infection and listed the odds ratio of hepatitis C transmission among several types of risk factors to include intravenous drug use, blood transfusion, piercings, and immunoglobulin injections. The examiner found that the Veteran did have a diagnosis for hepatitis C. The examiner further found there was no objective finding or diagnosis or treatment in the Veteran's service treatment records for hepatitis C until after separation from service. The examiner also found that the Veteran's service treatment records were silent for objective findings of medical records of exposure to hepatitis. In a February 2021 addendum opinion, a VA examiner opined that it was less likely than not that the Veteran's hepatitis C was incurred in service. The examiner noted that the Veteran's service treatment records were negative for a diagnosis or treatment of hepatitis C. Additionally, the Veteran reported diagnosis and treatment for hepatitis C in 1992 at the age of 35 which was 17 years after his service discharge. The examiner noted that the Veteran's risk factors were identified including that his first wife had hepatitis c when her blood got on the Veteran after he accidentally shot her and being sexually assaulted in boot camp. Notably on a July 2019 VA treatment report, the Veteran indicated that he had intravenous drug use or intranasal cocaine use and that he was unaware how he contracted hepatitis C but had used recreational drugs and had tattoos. The examiner noted that hepatitis C has an "incubation phase" where one may not experience symptoms of hepatitis C. This incubation period could last anywhere from 2 weeks to 6 months. However, the Veteran's service treatment records were negative for symptoms referrable for hepatitis C and so was the period of 12 months after his discharge from service. He was absent symptoms until his subjective report of hepatitis C treatment in 1992 which was 17 years after service. The report of the diagnosis in 1992 was notably reported by the Veteran as the records were silent for this consultation. Per the May 2021 Board remand instructions, a VA examiner provided an addendum opinion in August 2021. The examiner opined that it was less likely than not that the Veteran's claimed hepatitis was incurred in or caused by the claimed in-service event, injury or illness. The examiner noted that the Veteran incurred hepatitis B in 2000 which had resolved. It was also less likely than not that the hepatitis B in 2000 was related to any in-service injury, disease or event including high risk sexual activity, sharing razors, getting an earring, air-gun injections and getting tattoos. It notably only took an average of 90 days before hepatitis B antibodies were detected post hepatitis B infection and hepatitis B in the Veteran was diagnosed in 2000 which was 25 years after his military service. There was also insufficient evidence of a hepatitis B infection since 2011. The examiner also opined that it was less likely than not that the hepatitis C was related to any in-service injury, disease or event including high risk sexual activity, sharing razors, getting an earring, air-gun injections and getting tattoos. Although there was a history of the Veteran receiving several vaccinations in service and getting tattoos during ACDUTRA, the service treatment records were silent for a hepatitis C infection. The Veteran's personal report of initial diagnosis and treatment for hepatitis C was in 1992 at the age of 35 which was 17 years after his military discharge. The examiner also noted that the Veteran's subjective history as reported by the Veteran included an onset of hepatitis C in 1977 when he had blood drawn. However, the examiner noted that in several consultations with different care providers, the Veteran reported treatment for hepatitis C in 1998 which was 23 years after service. When considering the pertinent evidence of record in light of the above-noted legal authority, the Board finds that service connection for a hepatitis disability is not warranted. As there is a current hepatitis C disability, the first element of service connection is satisfied. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000). As noted above, the Veteran's service treatment records are negative for complaints, treatment or diagnoses related to a hepatitis disability. Furthermore, the only medical opinions addressing the etiology of the hepatitis disability weigh against the claim. As noted above, the VA examiner in an August 2021 opinion opined that it was less likely than not that the Veteran's hepatitis was incurred during the Veteran's active military service. The examiner also specifically addressed the Veteran's risk factors including high risk sexual activity, sharing razors, getting an earring, air-gun injections and getting tattoos. The examiner noted that despite these risk factors, the Veteran's personal report of initial diagnosis and treatment for hepatitis C was in 1992 at the age of 35 which was 17 years after his military discharge and in several consultations with different care providers, the Veteran reported treatment for hepatitis C in 1998 which was 23 years after service. Regarding hepatitis B, the examiner also indicated that there was insufficient evidence of a hepatitis B infection since 2011 and that hepatitis B in the Veteran was diagnosed in 2000 which was 25 years after his military service. Notably, in a September 2021 Written Brief, the Veteran's representative argued that the August 2021 VA examination was inadequate to decide the claim. The Veteran's representative specifically noted that while the examiner concluded that the Veteran's hepatitis was not related to service, the examiner did not recognize the Veteran's testimony that he was hospitalized in 1977 and further failed to consider whether the Veteran contracted hepatitis C at any time prior to his documented diagnosis and treatment. However, the Board notes that the August 2021 VA examiner accounted for the Veteran's symptomatology as she specifically noted that the Veteran's subjective history as reported by the Veteran included an onset of hepatitis C in 1977 when he had blood drawn. Additionally, the report of the August 2021 VA examination reflects that the examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate evaluations of the Veteran, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The examiner again specifically addressed the Veteran's claimed in-service risk factors and addressed each one specifically when finding that the Veteran's hepatitis was less likely than not incurred in service. Thus, the Board finds that the August 2021 VA examination report is adequate for purposes of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2 (2016); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board also affords the VA examiner's August 2021 opinions, which are supported by a detailed rationale and medical knowledge, great probative value. In forming her opinion, the VA examiner again specifically noted the Veteran's lay assertions regarding his hepatitis disability while clearly acknowledging his reported symptomatology. None of the competent medical evidence of record refutes these conclusions, and the Veteran has not presented or identified any such existing medical evidence or opinion. Thus, the Board finds the examiner's August 2021 opinions to be persuasive. The Board notes the Veteran's contentions regarding the etiology of his claimed hepatitis disability. To the extent that the Veteran contends that a medical relationship exists between his claimed hepatitis disability and his service, the Board acknowledges that the Veteran is competent to testify as to his observations. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). In the instant case, however, the Board finds that a hepatitis disability is not a disability subject to lay diagnosis as this diagnosis requires medical training. More significantly, the Veteran does not have the medical expertise to provide an opinion regarding the claimed hepatitis disability etiology. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). Additionally, the VA examiner provided detailed rationales in support of her opinions and cited to the relevant evidence. For this reason, the VA examiner's opinions are the most probative evidence of record. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (noting that a factor for assessing the probative value of a medical opinion includes the thoroughness and detail of the opinion). Thus, the Veteran assertions that there is a relationship between his claimed hepatitis disability and his service are not sufficient in this instance and are outweighed by other probative evidence of record. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In sum, the Board finds that service connection for a hepatitis disability must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James A. DeFrank, 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.