Citation Nr: 21070449 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 16-59 227 DATE: November 24, 2021 ORDER Entitlement to service connection for hepatitis C is denied. FINDING OF FACT The competent evidence does not attribute the Veteran's hepatitis C to active duty service; the Veteran's hepatitis C was not incurred or aggravated in the line of duty during active duty for training (ACDUTRA) or inactive duty training (INACDUTRA). CONCLUSION OF LAW The criteria for service connection for hepatitis C are not met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from September 1975 to September 1978. The Veteran also had periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) between 1992 and 2005. This matter comes to the Board of Veterans' Appeals (Board) from a rating decision dated in April 2014 of a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) The Veteran testified at a Board hearing in March 2020. A copy of the transcript has been associated with the record. This appeal was most recently before the Board in June 2020, at which time it was remanded for additional development. The case has since returned to the Board. The Board finds that the AOJ substantially complied with remand directives and the case is ready for adjudication. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for hepatitis C A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110, 1131. 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-the so-called "nexus" requirement." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The term "active military, naval, or air service" includes active duty, any period of active duty for training (ACDUTRA) 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 (INACDUTRA) 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); 38 C.F.R. § 3.6 (a), (d). ACDUTRA includes full-time duty performed for training purposes by members of the Armed Forces Reserves or the National Guard of any state. 32 U.S.C.A. §§ 316, 502, 503, 504, or 505; 38 U.S.C. § 101 (22); 38 C.F.R. § 3.6 (c)(3). In the absence of evidence that the claimant died or became disabled in the line of duty during the period of training, the period of ACDUTRA would not qualify as "active military, naval, or air service." See 38 U.S.C. § 101 (2)-(24); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998). Active military, naval, or air service also includes any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred in or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. 38 U.S.C. § 101 (21) and (24); 38 C.F.R. § 3.6 (d) and (e). Accordingly, service connection may be granted for disability resulting from injury incurred or aggravated while performing INACDUTRA. The advantage of certain evidentiary presumptions provided by law that assist Veterans in establishing service connection for a disability 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); Smith v. Shinseki, 24 Vet. App. 40, 45-48 (2010) (holding that the presumptions of service connection and the presumptions of soundness and aggravation cannot apply to claimants whose claims are based only on a period of active duty for training); McManaway v. West, 13 Vet. App. 60, 67 (1999) (citing Paulson, 7 Vet. App. at 469-70, 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." (emphasis in McManaway)); see also Biggins v. Derwinski, 1 Vet. App. 474, 479 (1991). Thus, the evidentiary burden is on the claimant to show that he or she became disabled from an injury or disease incurred in line of duty during ACDUTRA or from an injury incurred in line of duty during INACDUTRA. In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C. § 7104 (a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran contends that his hepatitis C is related to service in two ways: (1) he contracted hepatitis C during dental procedures on active duty in 1978; and/or (2) he contracted hepatitis C around 1977 when air guns were used to vaccinate his entire battalion. For the reasons set forth below, the Board finds that the evidence is insufficient to grant the claim and it must be denied. Turning to the evidence, the Board initially notes that the Veteran's active duty service treatment records (STRs) are silent for any diagnosed hepatitis. At an enlistment examination in April 1975, clinical evaluation of all body systems was normal, except his shoulder and feet. Nevertheless, no diagnoses or defects were noted. The Veteran underwent a separation examination in August 1978. The Veteran reported he was in "excellent" health. Clinical evaluation of all body systems was normal, except for defective vision noted. The Veteran was noted to have had excessive bleeding after wisdom tooth extraction in 1978. At the time of National Guard enlistment in May 1991, the Veteran was not noted to have had hepatitis C. Medical records from Community Medical Center show that in April 1992, the Veteran tested positive for hepatitis C antibodies. He underwent a liver biopsy, which was suggestive of very mild or very early chronic aggressive hepatitis. The Veteran was evaluated for National Guard duty in September 1992. His hepatitis C was noted to have been controlled. In December 2012, the Veteran's treating physician, Dr. E.E., wrote a letter in support of the claim. Dr. E. wrote, "Based upon his history and current liver status; he most likely contracted Hepatitis C during the 1970s while on active duty." The Veteran testified at a Board hearing in March 2020. He testified that he never used intravenous drugs, shared razors, got any tattoos, or had any other risk factors. The Veteran reported that he was diagnosed with hepatitis around 1993 and he testified to why believed he was exposed in service. In March 2020, Dr. E. wrote another letter on the Veteran's behalf. He explained that the Veteran had cirrhosis of the liver unrelated to alcohol, but caused by hepatitis C. The diagnosis was made based on the Veteran's history, blood work, liver biopsy, imaging tests, and symptoms. In August 2020, the Veteran submitted another letter from Dr. E. He explained that the Veteran's diagnosis dated back many years, and the disease process had adversely affected his life. Dr. E. described the Veteran's symptoms, treatment, and side-effects. Dr. E. requested that VA "extend him every benefit." The AOJ obtained an opinion regarding the etiology of the Veteran's hepatitis C in December 2020. The VA examiner explained that hepatitis C can be transmitted through contact between mucous membranes, open wounds, and blood, tissue, or other bodily fluids of an infected person. The examiner addressed the Veteran's contention regarding in-service dental work, and explained that, while the universal precaution of wearing gloves was not in place in 1978, in order for the dentist to have transmitted hepatitis C to the Veteran, one has to assume that the dentist was infected and had an open wound on his hands that was bleeding. Additionally, while it is biologically plausible that air gun injectors could transmit hepatitis C, there is a lack of scientific evidence documenting such transmission. Finally, the Veteran's records showed that he had a civilian occupational risk factor for hepatitis, and in May 1992, his physician noted that the transmission likely occurred through work as a safety officer and exposure to raw sewage. The literature showed that contaminated water specifically, and water generally, can be a source of hepatitis C transmission. The Veteran's occupational risk factor outweighed the plausibility of air gun or dentist transmission. Therefore, it was less likely than not that the Veteran's hepatitis C was attributable to active duty service. Regarding the Veteran's National Guard service, the VA examiner concluded that the Veteran's hepatitis C was not incurred in or aggravated during a period of ACDUTRA or INACDUTRA. The examiner noted that in September 1992, a periodic physical examination showed no restrictions because of hepatitis C. In October 1992, the Veteran was noted to be positive for hepatitis C with no restrictions on activity in the Guard. In May 1994, the Veteran was asymptomatic with no contraindication for retention. Medical reports in 1996, 2000, and 2005 noted that the Veteran was in good health and documented no symptoms or complications from hepatitis C. After reviewing the evidence, the Board concludes that the Veteran's claim must be denied. The most probative competent medical evidence does not establish a nexus between the Veteran's active duty service and his hepatitis C, including transmission from air guns or a dentist. Additionally, the record does not reflect that the Veteran's hepatitis was incurred in the line of duty or aggravated in the line of duty during ACDUTRA or INACDUTRA. The Board acknowledges Dr. E.'s positive opinion and letters in support of the Veteran's claim. However, the Board affords the December 2020 VA opinion more weight and finds it more persuasive than Dr. E.'s letters. The Board may place greater weight on one medical professional's opinion over another's depending on such factors such as reasoning employed by the medical professionals, and whether or not and to what extent they review prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994). The opinion is considered probative if it is definitive and supported by a detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000; see also D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (holding that examination reports are adequate when they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion). The December 2020 opinion is based on a review of the Veteran's records, directly address his contentions, and provides a detailed rationale regarding why there is less likely than not a nexus to service. Therefore, it is adequate and highly probative evidence against the Veteran's claim. On the other hand, Dr. E.'s letters are less persuasive because he does not provide a rationale or explanation as to how it was concluded that the Veteran's hepatitis was incurred in the 1970s, or more specifically, in the three years the Veteran was on active duty. Additionally, Dr. E.'s letters essentially summarize the history of the Veteran's diagnosis, symptoms, treatments, and side-effects, and then provides a conclusion. In general, medical opinions containing only facts and conclusions are inadequate for rating purposes; supporting explanation must be provided. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). For these reasons, Dr. E.'s letters are afforded less weight than the December 2020 VA examination report. In concluding that the Veteran's hepatitis was not incurred or aggravated in the line of duty during a period of ACDUTRA or INACDUTRA, the Board notes that the Veteran's enlistment examination was silent for a diagnosis. Moreover, the December 2020 examiner explained that the Veteran had no restrictions, limitations, or symptoms of hepatitis C documented in his National Guard records. The Board emphasizes the more restrictive requirements applicable to periods of ACDUTRA and INACDUTRA as compared to active duty service. The law permits a grant of service connection by evidence establishing an etiological relationship between an injury or disease in the line of duty during ACDUTRA or INACDUTRA and a post-service disability. As the record shows that the Veteran's hepatitis C was not diagnosed during a period of ACDUTRA or INACDUTRA or incurred in the line of duty service connection is not warranted. While the Veteran believes that his hepatitis C is related to service, the Board concludes that the Veteran is not competent to make this determination. The issue is medically complex, as it requires the interpretation of symptoms and application of medical principles by a trained medical professional. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). There is no evidence that the Veteran has any medical training. See 38 C.F.R. §§ 4.125, 4.130. Therefore, the Board must rely on the competent evidence, particularly the VA examination report, in making its decision. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Smith, 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.