Citation Nr: 21072834 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 16-53 512 DATE: December 6, 2021 ORDER Entitlement to service connection for hepatitis C is denied. FINDING OF FACT The Veteran's hepatitis C was not etiologically related to active service. CONCLUSION OF LAW The criteria for service connection for hepatitis C have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1975 to February 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This matter previously came before the Board on two occasions. In March 2019 this issue was remanded to the agency of original jurisdiction (AOJ) for additional development. It was then sent back to the Board in June 2021 and it was determined that the November 2019 VA examination did not comply with all of the remand directives from the March 2019 Board remand. Therefore, the issue was sent back down for an additional VA examination to focus on the Veteran's claims of the air gun being the cause of his hepatitis C. This case has now been returned to the Board for further appellate action. Service Connection The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). 1. Entitlement to service connection of hepatitis C The Veteran contends that his hepatitis C is the result of an in-service vaccination administered by a "jet-injector" air gun in February 1975. As an initial matter, the Board recognizes a post-service diagnosis of hepatitis C in 2005, satisfying the primary criterion of service connection. The Veteran's service treatment records (STRs) do not contain any complaints, treatment, or diagnoses of hepatitis C. There is no evidence contained therein of any viral infections or hepatitis-like or liver-related pathology. For his part, the Veteran has asserted that he was inoculated with an air gun in 1975. While there is no explicit proof in his personnel or medical records from the time indicating an air gun was used to carry out a vaccination or inoculation, the Board has previously found it reasonable that such an inoculation may have taken place. The Veteran also asserts that his hepatitis C may be the result of a shaving study he participated in during service, which is confirmed. Turning to the question of a nexus between the present hepatitis C and either the use of an air gun injector or the shaving study, the Veteran has undergone multiple VA examinations in connection with this appeal. The initial VA examination was conducted in April 2015. This examiner included a history of the condition including that the Veteran was diagnosed with hepatitis C in 2005. The Veteran denied any history of drug use. The examiner indicated that use of an air gun for the Veteran's vaccination could not be verified. The Veteran denied any known source of hepatitic C contact. Unfortunately, that examination did not include any express medical opinion regarding the possible cause of the Veteran's hepatitis C. The March 2019 Board remand required the VA examiner to discuss the Veteran's participation in a shaving study while in service and to provide an opinion on if this could have resulted in the Veteran's hepatitis C. Additionally, the examiner was requested to discuss more fully the risk factors of contracting hepatitis C. The Veteran was afforded a new VA opinion in November 2019. The examiner provided a full explanation of the shaving study. According to the Veteran's history he was involved in the shaving study but was a control subject. This meant that the Veteran only used his own razor and therefore there would be no risk of exposure to hepatitis C based upon being involved in this study. In June 2021, the Board again remanded the claim, noting that, while the November 2019 opinion did cover the question of the shaving study, it did not fully address the question of the air gun injector. As such, a new opinion was requested. The July 2021 VA opinion addressed the possibility of infection based upon the air gun vaccination process. The examiner found a lack of medical literature to support vaccination air guns transmitting the hepatitis C virus. The examiner noted that a risk factor for the Veteran would be multiple casual sexual partners, as well as a history of substance abuse that included smoking, intra-nasal cocaine use, marijuana use, alcohol use, and experimentation with other drugs (although the Veteran asserted that he had been clean and sober since 1992). There is literature that supports sexual encounters as a risk factor for hepatitis C. Further, during service there was no evidence of an acute hepatitis infection or elevated liver function tests. Based on this the examiner opined that it is less likely than not that the Veteran's hepatitis C was transmitted via air gun. Per the prior remand it was also assumed that the Veteran was treated with the air gun. The Board finds these opinions, when taken as a whole, to be generally persuasive. They were given my medical specialists, in contemplation of the Veteran's complete medical history, and applied the facts of this specific case to known medical principles and cited to medical treatise evidence (or lack thereof). The Board has reviewed the claims file, but finds no specific medical evidence or opinions to contradict the opinions of the VA examiners in this matter. The Board does recognize the Veteran's own firmly held belief that his hepatitis C was incurred in service, but finds this of limited to no probative value. While lay evidence may be competent on a variety of matters concerning the nature and cause of disability, etiology of dysfunctions and disorders is a medical determination and generally must be established by medical findings and opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed.Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). In the present case, the Veteran has a work history as a medical administrator, and therefore may have some medical knowledge beyond that of an average lay person. However, he is not a trained medical treatment provider, nor is there evidence that he has specific expertise on the subject of infectious viral diseases such as hepatitis, and thus, is less competent to make an etiological conclusion regarding the cause of his hepatitis than the VA examiners who provided the opinions discussed above, especially in light of the fact that the evidence fails to demonstrate the onset of any type of acute hepatitis or liver-related pathology in service, but rather that the condition did not manifest until many years following service. See id. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for hepatitis C is not warranted, and the claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. M. Pryce Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Andrew Ledman II 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.