Citation Nr: 21071098 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 15-26 159 DATE: November 29, 2021 ORDER Entitlement to service connection for hepatitis C is denied. FINDING OF FACT The Veteran was diagnosed with hepatitis A in the military; the Veteran's post-military diagnosis of hepatitis C is not related to his active duty service. CONCLUSION OF LAW The criteria for service connection for hepatitis C have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1969 to January 1972, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ); a transcript is of record. The Board remanded the appeal in March 2019 and April 2021 to the agency of original jurisdiction (AOJ) for further development. The Board's remand directives have been substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for hepatitis C The Veteran asserts entitlement to service connection for hepatitis C. Specifically, the Veteran asserts service connection is warranted because he was treated for hepatitis during his active duty service. See September 2018 Board hearing transcript. Upon review of all evidence of record, the Board finds that the Veteran's service connection claim must be denied. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, to establish service connection, there must be competent, credible evidence of 1) a current disability, 2) in-service incurrence or aggravation of an injury or disease, and 3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Turning to the evidence of record, a current diagnosis of hepatitis C is of record. See July 2021 VA examination. As such, the first element of service connection has been established. Next, as to the second element of in-service incurrence, the Board finds that this element has been met. The Veteran's service treatment records (STRs) show complaints of and treatment for hepatitis. See October 1971 STR. The Veteran was diagnosed with "epidemic" hepatitis. Id. The Veteran separated from active duty service in January 1972. On his separation examination, a diagnosis of and treatment for hepatitis was noted. Based on the foregoing, the Board finds that the second element of service connection has been satisfied. As to the nexus element, the Board finds that this element has not been met. In this regard, the initial VA examination report for the Veteran's hepatitis was issued in August 2013. The examiner opined that the Veteran's hepatitis C was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner based this opinion on the fact that although the Veteran was diagnosed with hepatitis in service, it was more likely than not hepatitis A or what used to be named "infectious hepatitis." The examiner explained that hepatitis A is typically passed through unsanitary conditions, which would have been common under the circumstances that the Veteran served in Vietnam. The examiner added that the hepatitis encountered in service is documented to completely have resolved. The examiner also noted that while in the Veteran's private treatment records there is a mention of drug use during in the military, it is likely based on his history because his STRs do not document it. Based on these facts, the examiner concluded that it is more likely than not the acquisition of hepatitis C was post-service. An October 2014 VA opinion with respect to the Veteran's hepatitis C is also of record. The examiner opined that it is less likely as not that the Veteran's hepatitis C is related to and/or caused by the hepatitis he was treated for in 1971 on active duty. The examiner based this opinion on the fact that the Veteran was diagnosed with infectious (viral) hepatitis while on active duty, which is currently called hepatitis A. The examiner explained that hepatitis A virtually always resolves completely with no residuals and it is not a known cause or a risk factor for hepatitis C. Pursuant to April 2021 Board remand's directives, a July 2021 VA opinion was issued. The examiner again opined that the Veteran's hepatitis C was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner based this opinion on the fact that the Veteran was diagnosed with "viral" or "epidemic" hepatitis due to exposure to similarly sick individuals. The examiner explained that the Veteran's sickness resolved with supportive treatment only on liver enzymes and he subsequently tested within normal limits, evidencing that hepatitis resolved without any residuals by the time the Veteran separated from the military. The examiner noted that in early 2003, more than 31 years after the Veteran's separation from active duty service, his liver enzyme tests were abnormal and his treating physician diagnosed him with a non-infectious toxic hepatitis. A conclusive hepatitis C diagnosis was rendered in December 2009. The examiner explained that although hepatitis A and C type may have overlapping symptoms, type A is generally acute and transient, rarely resulting in a chronic disease. The examiner further clarified that hepatitis A is transmitted through fecal matter oral ingestion, whereas, hepatitis C is transmitted through blood, body fluids and it is difficult to transmit in a group of people not sharing needles. The examiner noted that despite the Veteran's subjective verbal reports of IV drug use during the military, there is no objective evidence to support these reports. The examiner added that a hand-written note in the Veteran's STRs indicates that he abused hashish, which is usually smoked rather than administered through intravenous injection. The examiner pointed out that if the Veteran was abusing IV drugs during the military, the medical stuff would have noticed any IV drug/needle marks on his body at the time of his hospitalization for viral hepatitis. The Board accords great probative weight to the August 2013, October 2014, and July 2021 VA opinions. The examiners considered all of the pertinent evidence of record, to include the Veteran's statements, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiners offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The following objective evidence of record is also consistent with the examiners' conclusion. The Veteran's October 1971 STR shows a diagnosis of "epidemic" hepatitis. A November 1971 hospital transfer summary noted that during the first week of hospitalization the Veteran's symptoms persisted, but then gradually resolved. At that time, it was noted that the Veteran was feeling well, and he only had mild liver function abnormalities. His diagnosis was noted as viral hepatitis, resolving. A December 1971 STR noted that the Veteran's hepatitis resolved, and he was sent to duty. A January 1972 STR noted that the Veteran returned from convalescent leave and is asymptomatic regarding hepatitis. His liver enzymes were within normal limits at that time. As noted, the Veteran separated from the military in January 1972. On his separation examination, it was noted that he was treated for hepatitis, which resolved, and the Veteran was asymptomatic at the time of the examination. A review of the Veteran's post-service treatment records shows that during laboratory consultation in March 2003, he reported that he had jaundice of unknown type in military due to IV drug use. See private treatment records. He was diagnosed with a chronic hepatitis of unspecified type at that time. In December 2003, hepatitis of unknown type in the army due to drug use was noted as an inactive problem. In February 2010, the Veteran had an abnormal liver tests and it was noted that his antibody tests came back positive for hepatitis C but negative for hepatitis B. See private treatment records. The Veteran's treating physician at that time noted that his abnormal liver tests have been present for six years. The Veteran's VA treatment records show that he was treated for hepatitis C in 2018 and he requested a note documenting that his "infectious hepatitis" in the military is "the cause of the hepatitis C [he] is currently carrying." See October 2018 VA treatment record. In light of the foregoing, the Board finds that service connection for hepatitis C is not warranted. In reaching this decision, the Board has considered the arguments of the Veteran and his representative in support of his claim. See September 2018 Board hearing transcript; see also September 2021 Informal Hearing Presentation. The Board remains sympathetic with the Veteran's contentions and acknowledges that he is competent, as a lay person, to attest to factual matters of which he has first-hand knowledge. In addition, lay assertions may serve to support a claim for service connection by demonstrating the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Veteran is not competent to offer an opinion to establish an etiological nexus between his current disorder and service or any event of service. Such is a complex medical question that requires medical training and expertise. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). A diagnosis of a specific type of hepatitis requires laboratory testing and medical training and expertise. The Veteran does not have the required medical training or expertise to create a causal connection. Further, as noted, the evidence of record shows that his "epidemic" hepatitis diagnosis during the military is not related to his current diagnosis of hepatitis C. As detailed above, the objective, persuasive evidence substantiates the August 2013, October 2014, and July 2021 VA opinions. Thus, the Board finds the VA opinions more probative. The Board has also considered the Veteran's assertions that he had hepatitis C in service and has continued to have it since service. As noted, the highly probative medical evidence establishes that the Veteran did not have hepatitis C in service. The in-service and post-service medical evidence substantiates such. The Board finds that the evidence contemporaneous to the Veteran's service and following active service is more reliable in regard to the state of his health. Specifically, the August 2013, October 2014, and July 2021 VA opinions found that the Veteran's active service diagnosis of hepatitis was of type A that is acute and transitionary in nature, rather than type C. Additionally, the initial indication of the Veteran's hepatitis C infection is not evident until March 2003, more than 30 years after his separation from the military. The Board also acknowledges the Veteran's reports of IV drug use during his active duty service. Nonetheless, the contemporaneous evidence as to his then-existing physical condition, such as his medical examination report (as opposed to his later statements of memory or belief to prove the fact remembered or believed) is particularly probative. See Fed. R. Evid. 803(3); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (providing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate). Even though the Board remains sympathetic to the Veteran's assertions, the evidence of record does not support his assertion of contracting Hepatitis C in service and continuing to have symptoms since service. As noted, the August 2013, October 2014, and July 2021 VA opinions outweigh any lay assertions that the Veteran's current hepatitis C is related to his active military service, including continuity since service. In sum, the evidence weighs against a finding that the Veteran's hepatitis C was incurred in, or is otherwise related to, his active military service, to include his diagnosis of "epidemic" hepatitis in service. 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 Veteran's claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); Gilbert, supra. Thus, the appeal is denied. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Kuzniar, 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.