Citation Nr: 21070538 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 15-22 750A DATE: November 24, 2021 ORDER Service connection for hepatitis C is denied. Service connection for liver disease, to include cirrhosis of the liver, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's hepatitis C began during active service or is otherwise related service. 2. The preponderance of the evidence is against finding that the Veteran's liver disease began during active service or is otherwise related to service, including exposure to contaminated water at Camp Lejeune, and is not shown to be caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for hepatitis C have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.301, 3.303. 2. The criteria for service connection for liver disease have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1973 to April 1977, during which time he was stationed at Camp Lejeune, North Carolina. In August 2018, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. In May 2019 and May 2021, the Board remanded these issues for further development. Service Connection Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be also granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted on a presumptive basis for certain diseases associated with exposure to contaminants in the water supply at Camp Lejeune, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a veteran who had service of at least 30 days (consecutive or nonconsecutive) at Camp Lejeune during the period beginning on August 1, 1953, and ending on December 31, 1987. Persons residing or working at Camp Lejeune from August 1, 1953, to December 31, 1987, were potentially exposed to drinking water contaminated with volatile organic compounds trichloroethylene (TCE), perchloroethylene (PCE), benzene, and vinyl chloride that were in the on-base water-supply systems. 38 C.F.R. § 3.307(a)(7). If a veteran was exposed to contaminants in the water supply at Camp Lejeune during military service and the exposure meets the requirements of § 3.307(a)(7), the following diseases shall be service connected even though there is no record of such disease during service, subject to the rebuttable presumption provisions of § 3.307(d): kidney cancer; liver cancer; non-Hodgkin's lymphoma; adult leukemia; multiple myeloma; Parkinson's disease; aplastic anemia and other myelodysplastic syndromes; and bladder cancer. 38 C.F.R. § 3.309(f). As is the case here, if the claimed disability is not a listed disease under 38 C.F.R. § 3.309(f), a claimant may nevertheless establish service connection on a direct basis. The claimant then has "the difficult burden of tracing causation to a condition or event during service." Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In order to prevail on the issue of service connection, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). Generally, a claimant has the responsibility to present and support a claim for benefits. All information, lay evidence and medical evidence in a case is to be considered by the Board in deciding the claim. When there is an approximate balance of positive and negative evidence regarding any material issue, the claimant is to be given the benefit of the doubt. 38 U.S.C. § 5107 ; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Hepatitis C The Veteran claims service connection for hepatitis C. He alleges his hepatitis was caused by air gun inoculations in service. See August 2018 hearing transcript. Additionally, the Board identified the tattoos he received in service (see March 1977 separation examination report) as a potential risk factor. Likewise, the Veteran's post-service treatment records show evidence of illicit drug (meth and cocaine) use during the 31 years between separation from service in 1977 and 2008 (see February 2015 and January 2016 VA treatment records), which is an additional risk factor of hepatitis C. The Veteran's service treatment records do not show any complaints, findings, treatment, or diagnoses related to hepatitis C. There is no evidence showing a diagnosis of such for more than 30 years after active service. VA outpatient treatment records show the Veteran' hepatitis C was first noted in June 2010. There is no medical indication in the record that the condition is somehow related to his active service. In January 2020, the Veteran was provided a VA examination. The examiner diagnosed hepatitis C with a date of diagnosis in 2010. In listing the Veteran's risk factors, the examiner checked "other direct percutaneous exposure to blood" and described this as "immunization with same needles". The examiner provided a negative nexus opinion and for rationale indicated there was no documentation of gastrointestinal symptoms or jaundice in service, that the Veteran's separation examination did not note indigestion, malaise, weight loss or other symptom suggestive of hepatitis C infection, and that the first documentation was in 2010 when the Veteran had a routine blood test. The examiner opined it was likely that the same needles were used and proper precautions were not used, but the examiner could not say without speculation whether the Veteran's hepatitis C was due to improper needle usage during an inoculation in service. In an October 2020 addendum opinion, the examiner reiterated being unable to provide any opinion without resort to speculation, noting that the lack of specific findings in service did not confirm there was no hepatitis C, and that during the era of the Veteran's service, hepatitis was not as well understood as today, testing was less accurate, and there was less awareness than there is today. The examiner also noted that the Veteran reported immunizations were done at an Air Force base and that there was a possibility that the same needles were used and proper precautions were not used, but that to say the Veteran got hepatitis C from inoculation due to improper hygienic technique during inoculation would be resorting to mere speculation In May 2021, the Board found the January 2020 VA examination and October 2020 VA addendum opinion inadequate because the examiner not sufficiently address the Veteran's risk factors for hepatitis C and did not effectively consider whether he may have contracted hepatitis C through air gun inoculations in service. The Board noted that the examiner did not list as a potential risk factor the tattoos identified in the Veteran's service separation examination. The Board also noted that while the examiner listed "immunization with same needles" as a risk factor, this did not align with considering air gun inoculations which, by description, did not involve needles. For these reasons, the Board remanded for a new medical opinion. A new VA medical opinion was obtained in August 2021. The examiner reviewed the claims file, including the Veteran's contentions, and opined it was less likely than not that the Veteran's hepatitis C was incurred in or caused by his military service. In this regard, the examiner quoted medical statistics which show "The use of intravenous (IV) drugs and the sharing of paraphernalia used in the intranasal snorting of cocaine and heroin account for approximately 60% of new cases of [hepatitis C virus] infection. More than 90% of patients with a history of [intravenous drug use] have been exposed to [hepatitis C virus]." The examiner stated the "Veteran's history of a 31-year history of drug use post service makes it difficult to ascertain with 50% or greater probability that the [V]eteran's Hepatitis C can be isolated to the claimed air gun inoculations he received during service" or his "exposure to tattoo needles" or his "reported drug use since age 20 while in service." The examiner concluded the Veteran's hepatitis C was less likely than not incurred in or caused by active service, to include air gun inoculations, exposure to tattoo needles, and reported drug use since age 20. The Board finds the August 2021 VA medical opinion to be probative as it was based upon a review of the claims file, the Veteran's medical history, and medical expertise. The examiner also included a well-reasoned rationale for the opinion provided. There is no medical or other competent evidence to the contrary. Additionally, while the examiner found the Veteran's decades-long drug use to be the most likely cause of his hepatitis C, the Board also points out that, for the Veteran's apparent drug use in service, direct service connection may be granted only when a disability was incurred or aggravated in line of duty, and not the result of his own misconduct or the result of his abuse of alcohol or drugs. 38 C.F.R. § 3.301(a). Therefore, if, arguendo, the Veteran acquired hepatitis C by IV drug use in service, the claim would be denied because VA benefits may not be paid for disability resulting from willful misconduct. See 38 C.F.R. § 3.301(d). The Board recognizes the Veteran's statements and hearing testimony that his hepatitis C is related to his military service. However, he is a lay person and the nexus opinion for this diagnosis is a conclusion that must be rendered by a medical professional that has the requisite training and expertise to deliver a competent deduction. See Jandreau v. Nicholson, 492 F.3d 1372, 1733 n.4 (Fed. Cir. 2007). For that reason, as discussed above, the Board relies on the August 2021 VA examiner's medical opinion. As the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. As such, the claim is denied. Liver Disease, to Include Cirrhosis of the Liver The Veteran seeks service connection for liver disease, to include cirrhosis of the liver, contending that it is either related to his hepatitis C, or to his in-service exposure to contaminated water while stationed at Camp Lejeune. The Veteran's service treatment records are silent for any complaints or findings related to liver disease. His weight at the time of service separation in March 1977 was 170 pounds. See March 1977 separation examination report. There is no evidence, or allegation, that liver disease was manifested in service. Following service, VA treatment records dated in 2014 show diagnoses of fatty liver (steatosis), fibrosis and cirrhosis of the liver. VA treatment records show the Veteran's weight in December 2015 was 287 pounds. To the extent the Veteran may claim service connection for liver disease as secondary to hepatitis C, the Board notes he is not service connected for this disability. Therefore, although service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury, the minimum requirements for establishing service connection on a secondary basis are not met in this case. See 38 C.F.R. § 3.310 With regard to the Veteran's claim that his liver disease is due to exposure to contaminated drinking water at Camp Lejeune, review of the Veteran's service personnel file shows that he served at Camp Lejeune, North Carolina, for a period of more than 30 days; he is therefore presumed to have been exposed to contaminated drinking water. See 38 U.S.C. § 1710; 38 C.F.R. § 3.307. Although liver disease is not specifically recognized by VA as a residual of contaminated water at Camp Lejeune pursuant to 38 U.S.C. § 1710 and 38 C.F.R. § 3.309, this does not preclude a veteran from establishing service connection with proof of direct causation. See Combee, supra. In this case, a VA medical opinion was obtained in January 2015. The examiner reviewed the claims file and noted that chronic hepatitis C is a known risk factor for the development of liver disease, including cirrhosis and fibrosis, and obesity is a known risk factor for steatosis (fatty liver disease). She opined that the known risk factors of hepatitis C and obesity "outweigh the limited/suggestive evidence of association with contaminated water at Camp Lejeune. See January 2015 VA Medical Opinion Disability Benefits Questionnaire. There is no medical or other competent evidence to the contrary. Thus, the medical evidence of record indicates that the Veteran's liver disease is not related to active service, to include presumed exposure to toxins at Camp Lejeune, but instead, it is more likely related to nonservice-connected hepatitis C and obesity. The Board recognizes the Veteran's statements and hearing testimony that his liver disease is related to his military service. However, he is a lay person and the nexus opinion for this diagnosis is a conclusion that must be rendered by a medical professional that has the requisite training and expertise to deliver a competent deduction. See Jandreau, supra. Notably, the VA medical examiner's opinion was based upon a review of the claims file, the Veteran's medical history, and medical expertise. (Continued on the next page) As the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. As such, the claim is denied. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Fletcher, Kathleen 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.