Citation Nr: 21066252 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 15-43 276 DATE: October 29, 2021 ORDER Entitlement to service connection for a liver condition other than Hepatitis C is denied. Entitlement to service connection for Hepatitis C is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had a liver condition other than Hepatitis C at any time during or approximate to the pendency of the claim. 2. The preponderance of the evidence is against finding that the Veteran's Hepatitis C began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a liver condition other than Hepatitis C have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for Hepatitis C have not been 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 on active duty in the United States Army from June 1961 until October 1963. In February 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The Board remanded the claims in July 2021 for further development. There has been substantial compliance with its prior remand directives and the Board will proceed to adjudication. Stegall v. West, 11 Vet. App. 268, 271 (1998). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.902 (c). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Entitlement to service connection for a liver condition The Veteran asserts that he has a liver condition other than Hepatitis C that is etiologically related to service. The first step when determining if a Veteran has a service-connected disability is to decide if the Veteran has a present disability for which service connection may be granted. A present disability is one that is present at any point during the pendency of the claim even if it was diagnosed prior to the filing of the claim for service connection or resolves during the appeal period. McClain v. Nicholson, 21 Vet. App. 319 (2007). The Board has thoroughly and sympathetically reviewed all evidence of record and concludes that the preponderance of the evidence is against finding that the Veteran had a liver condition other than Hepatitis C at any point during the pendency of the claim. For the reasons below, the claim for entitlement to service connection for a liver condition other than Hepatitis C is denied. In August 2012, the Veteran filed a claim for "liver condition" that began in 1961. This was listed separately on the application from the claimed Hepatitis C. Therefore, VA has liberally construed the claim to be for a liver condition other than Hepatitis C. VA treatment records from April 1991 to the present were obtained and reviewed. They do not show any liver condition other than Hepatitis C since 1991. Private treatment record from Minor and James Medical dated April 2012 and submitted by the Veteran in February 2015 was reviewed and does not list any liver condition other than Hepatitis C. Private treatment records from Harborview Medical Center dated May 2016 through April 2017 were obtained and reviewed. The records do not show any liver condition other than Hepatitis C. Records from the Social Security Administration were received and reviewed. However, they do not show any disability or medical condition. The Veteran's testimony from the February 2021 Board hearing was also considered. However, the Veteran did not assert that he had a liver condition other than Hepatitis C at that hearing. A VA clinician completed a VA Hepatitis, Cirrhosis, and other Liver Conditions Disability Benefits Questionnaire (DBQ) and offered a medical opinion in August 2021. After reviewing all medical evidence of record, the clinician opined that there was no diagnosis other than Hepatitis C. While the Veteran believes he has a current liver condition other than Hepatitis C, he is not competent to provide a diagnosis in this case. The diagnosis and etiology of a disability affecting the liver is outside the realm of common knowledge of a lay person because it involves complex medical issues that go beyond a simple and immediately observable cause-and-effect relationship. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372(Fed. Cir. 2007). As the preponderance of the evidence is against the claim, entitlement to service connection for a liver condition other than Hepatitis C is denied. The benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for Hepatitis C The Veteran asserts that his diagnosed Hepatitis C is etiologically related to his active military service, to include vaccination by air gun. The Board has thoroughly and sympathetically reviewed the evidence of record. VA treatment records show an active diagnosis of Hepatitis C during the appeal period and the Veteran alleges that his Hepatitis C was caused by air gun vaccination in service. The question for the Board is if there is a nexus between the Veteran's Hepatitis C and his military service. For the reasons below, the Board concludes that the preponderance of the evidence is against the claim and service connection is not warranted. The Veteran's partial service treatment records (STRs) were obtained and reviewed. The agency of original jurisdiction (AOJ) attempted to obtain in-service in-patient treatment records from the Silas P. Hayes Army Hospital, Fort Ord, California and General Dispensary 544 APO-20 Korea but those records were not able to be located. VA has a heightened obligation to assist the claimant in the development of her case, and to explain findings and conclusions, as well as carefully consider the benefit of the doubt rule when records in the possession of the government are lost or destroyed. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991) The Veteran's pre-induction medical examination was reviewed and shows no pertinent defects related to the liver. The Veteran's separation medical exam also shows no pertinent defects. The Veteran's self-reported medical history completed at discharge does not note any liver defect and the Veteran described himself as in "very good health." Additionally, the STRs noted that the Veteran was hospitalized at Fort Ord for treatment of a "URI" (upper respiratory infection) from November 16 until November 20, 1961. STRs also showed treatment for a condition affecting the neck and back, gastroenteritis, URI, corn on the left foot, and cauliflower lesions at General Dispensary 544 in Korea between May 1962 and August 1963. VA treatment records from April 1991 to the present were obtained and reviewed. They show that the Veteran was first diagnosed with Hepatitis C in January 2008 following an abnormal liver function test. A February 2008 VA Primary Care Note states that the Veteran reported being diagnosed with hepatitis while hospitalized in Korea. The note also states that the Veteran reported a history of IV drug use that began after he returned from Korea. In June 2013, a VA Hepatology Outpatient Clinic Note states that the Veteran reported being seen in Hepatology at a private facility one year prior and had a liver biopsy which "looked like I still had half my liver." There was no follow up treatment undertaken and the Veteran was now at VA. A May 2016 ultrasound report does not describe any missing portion of the Veteran's liver. A private treatment record from Minor and James Medical dated April 2012 and submitted by the Veteran in February 2015 was reviewed and reports an active diagnosis of Hepatitis C. In an April 2013 statement, the Veteran asserted that he contracted Hepatitis C while stationed in Korea in 1961 and that he was first diagnosed while hospitalized there for "hemorrhage." At a March 2014 hearing before RO personnel, the Veteran testified that he was first diagnosed with hepatitis when hospitalized for approximately two days in Korea. He repeated that information on February 2015 form submitted to his Senator and on his July 2015 Notice of Disagreement (NOD). On the NOD he added that his Hepatitis C was due to air gun vaccination. Private treatment records from Harborview Medical Center dated May 2016 through April 2017 were obtained and reviewed. The records show an active diagnosis of Hepatitis C and treatment with Harvoni. A November 2018 statement submitted by the Veteran's representative states, "Mr. Dennis wishes to state that he had no idea when he was diagnosed in service with hep. C. However, if he had been notified, he would have lived his life with more caution." At the February 2021 Board hearing, the Veteran testified that he was first diagnosed with hepatitis in Korea. When asked specifically what he was told, the Veteran testified that he was told, "I had half of [my liver], because hepatitis had ate up half..." Later in the hearing, the Veteran testified that he was first told he had hepatitis when he began going to the VA in Seattle. The Veteran then testified that he had been told he had hepatitis while in Korea and that the Seattle VA had told him that he had the disease in Korea. Records from the Social Security Administration (SSA) were received and reviewed. However, they do not show any disability or medical condition. Pursuant to the Board remand, a VA clinician completed a VA Hepatitis, Cirrhosis, and other Liver Conditions DBQ and offered a medical nexus opinion in August 2021. The clinician opined that it is less likely than not that the Veteran's Hepatitis C was related to his military service. To support their conclusion, the clinician stated that the Veteran was treated for a URI while hospitalized at Fort Ord and that the hospitalization was not consistent with a hepatitis diagnosis as it was too short a duration and the diagnosis at the time was listed as URI. Additionally, the clinician stated that there was no indication of hepatitis after air gun injection, that there was no indication of a liver issue on the Veteran's separation exam, liver function tests were initially normal post service, and that the Veteran had a history of intravenous drug use, which the clinician identified as the most likely etiology. Because the clinician's opinion is clear and supported by the clinical record and facts, the Board assigns it significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). The Veteran's report that he was diagnosed with hepatitis in Korea is given less probative weight than the medical evidence of record because the Veteran has given inconsistent statements regarding his first diagnosis over the course of the appeal. He has variously said he was first diagnosed in Korea, that he was first diagnosed at the VA in Seattle, and that he "has no idea when he was first diagnosed in service with Hepatitis C. Additionally, the statements of the Veteran are inconsistent with the medical evidence of record including service treatment records showing treatment for URI, rather than a hepatitis infection, and normal liver function tests prior to diagnosis in 2008. While the Board understands that it is the Veteran's steadfast and sincere belief that his Hepatitis C was caused by or began during his active military service, he is not competent to provide an opinion as to the etiology of his condition. The etiology of Hepatitis C is outside the realm of common knowledge of a lay person because it involves complex medical issues that go beyond a simple and immediately observable cause-and-effect relationship. See Kahana, 24 Vet. App. at 428; Jandreau, 492 F.3d at 1372. Accordingly, the Board finds the Veteran's statements regarding the etiology of his Hepatitis C to be air guns used for vaccination nonprobative. As the preponderance of the evidence is against the claim, entitlement to service connection for Hepatitis C is denied. The benefit of the doubt doctrine is not for application. See Gilbert, 1 Vet. App. at 49. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. Collins, 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.