Citation Nr: 21073315 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 17-50 617 DATE: December 8, 2021 ORDER The claim for entitlement to service connection for hepatitis C and hepatic steatosis is denied. FINDINGS OF FACT The Veteran's hepatitis C and hepatic steatosis was not incurred in or aggravated by active service, or otherwise etiologically related to active service. CONCLUSION OF LAW The criteria for service connection for hepatitis C and hepatic steatosis have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309(f), 17.400. REASONS AND BASIS FOR FINDING AND CONCLUSION The Veteran had honorable active duty service in the United States Marine Corps from September 1968 to September 1970, including service at Camp Lejeune from December 1968 to March 1969. The Veteran served during the Vietnam Era. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2015 rating decision issued by a Department of Veteran's Affairs (VA) Regional Office (RO). In October 2015, the Veteran filed a Notice of Disagreement (NOD). The RO issued a statement of the case (SOC) in August 2017. The Veteran then filed a VA Form 9 appealing his claim to the Board in September 2017. The Board remanded the Veteran's claim in September 2019 for further development. This matter is now properly before the Board. SERVICE CONNECTION Service connection is warranted where the evidence of record establishes that an injury or disease resulting in a disability was incurred in the line of duty during active military service or, if an injury or disease pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Service connection may also be granted for any disease diagnosed after military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310. In order to prevail on the theory of secondary service connection, there must be evidence of a current disability; evidence of a service-connected disability; and evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Service connection may also be granted for any disease diagnosed after the military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service. 38 U.S.C. §§ 1113(b); 38 C.F.R. §§ 3.303(d). A Veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to certain herbicide agents (e.g., Agent Orange) during such service, absent affirmative evidence to the contrary. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). Service connection based on herbicide exposure will be presumed for certain specified diseases that become manifest to a compensable degree within a specified period of time in the case of certain diseases. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). Here, the Veteran served during the Vietnam Era, however there is no evidence of record indicating that the Veteran served in the Republic of Vietnam. Even if a Veteran is not entitled to presumptive service connection for a disease claimed as secondary to herbicide exposure, VA must also consider the claim on a direct service-connection basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for the evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the Veteran. Hepatitis C and Hepatic Steatosis The Veteran contends that he should be service connected for hepatitis C and hepatic steatosis. The Veteran did serve during a period of time known to be associated with contaminated water. Additionally, the Veteran did serve at Camp Lejeune for at least 30 days during the period of potential exposure, and therefore it is presumed that the Veteran may have been exposed to contaminated drinking water for VA compensation purposes. In February 2020, the Veteran was afforded a VA examination. The examiner noted that the Veteran had an ultrasound of the abdomen on July 31, 2014 that reported borderline liver size with steatosis and normal gallbladder and common bile duct. The examiner also noted the Veteran's August 2014 medical record which noted chronic hepatitis C and hepatic steatosis pursuant to an ultrasound of the abdomen. The Board finds that the August 2014 note indicated that the Veteran denied alcohol use and noted that he was treated 'years ago' by a private provider. The Board finds that the Veteran completed treatment for his hepatitis C in November 2014. The February 2020 examiner noted that the Veteran does have a current diagnosis of Hepatitis C and Hepatic steatosis. The examiner noted that the Veteran had lab results from February 2020 that indicated hepatitis C was reactive, but that a liver panel was normal. The examiner found that there are no risk factors for hepatitis C found in the medical records and that based on the Veteran's history, physical exam and records the Veteran's risk factor for hepatitis C is unknown. In May 2020, the RO sent the Veteran a hepatitis risk factors form, asking the Veteran to respond and provide information about the Veteran's risk factors for hepatitis. The Veteran did not provide information about risk factors as requested; however, the risk factors were identified during the July 2020 VA examination. In July 2020, a VA examiner provided an addendum opinion upon review of the Veteran's record and noted risk factors. The examiner discussed the Veteran's liver ultrasound dated September 2018. The Veteran's liver was determined to be normal and measured approximately 15.42 cm. The 2018 ultrasound did not show evidence of intrahepatic or extrahepatic biliary dilation. The examiner found that the Veteran does not now have nor has he ever been diagnosed with a liver condition. The examiner noted that the Veteran's history was that the Veteran was claiming Hepatitis C with subsequent liver steatosis due to service. The examiner noted that the endocrinology notes from 2017 were reviewed and the Veteran reported having hepatitis C, and that the prior diagnosis was based on the Veteran's reports. The examiner noted that the Veteran's lab results proved otherwise. The examiner emphasized that the Veteran has not been diagnosed with hepatitis C. The examiner noted that the Veteran does not have signs or symptoms of cirrhosis of the liver. The July 2020 examiner noted that there is insufficient evidence to warrant or confirm a diagnosis of an acute or chronic hepatitis C with steatosis condition or its residuals at this time. The examiner noted that a medical opinion cannot be rendered as no condition is diagnosed. The Veteran's liver was normal in 2018. The examiner noted that the Veteran's lab work for hepatitis C was negative in 2016. The Veteran also was negative for hepatitis C in 2020 lab tests. The examiner explained that a positive hepatitis C antibody alone is not diagnostic or indicative that the condition is present. The examiner referenced the medical literature which stated that a positive HCV antibody test followed by a negative HCV nucleic test is consistent with no laboratory evidence of active HCV infection. The Board finds the July 2020 examiner's explanation to be competent and credible. The Board assigns the July 2020 examiner's assessment of the Veteran's current diagnosis to be of greater probative weight as it explained the meaning of a positive antibody test. The examiner opined that it is less likely than not caused by a or a result of the Veteran's exposure to Camp Lejeune contaminated waters. The examiner provided an extensive discussion regarding cancer, and risk factors for the development of hepatocellular carcinoma. The examiner noted that gender, diabetes, and age are all risk factors. The examiner noted that fatty liver is a reversible condition, and risk factors include alcohol, overweight, diabetes, and elevated triglyceride levels. The examiner reviewed the Veteran's entire claims file and identified various medical records, particularly of interest the Veteran's Hepatology note which indicated that he was diagnosed with hepatic steatosis. The Veteran's reactive antibody test for hepatitis C from a July 2014 ultrasound which showed borderline liver with steatosis. The examiner provided rationale for the findings indicating that the Veteran was known to have hepatic steatosis in 2014. The examiner noted that the Veteran has risk factors for hepatic steatosis such as diabetes mellitus and obesity with his BMI greater than 32. The Veteran's medical history does not list hyperlipidemia, however on in July 2014, his medications included atorvastatin which is taken to control cholesterol levels. The claims file does not show Veteran used alcohol. The examiner also discussed the Veteran's hepatitis C diagnosis in 2014 when the Veteran was 64, The examiner noted that the Veteran's indicate that he was treated for hepatitis C, however the Veteran's claim file was silent for additional information. The examiner further noted that the Veteran has risk factors for hepatitis which include a tattoo noted on his military entrance and release examinations. The Veteran noted a possible short period of incarceration in 1975. The examiner also noted that the Veteran's other risk factor was service during the Vietnam Era. The examiner noted that the Veteran's military occupation was listed as retired chemical spray, which is possible source of exposure. The claims file does not indicate that the Veteran had a blood exposure or IV drug use. The July 2020 examiner concluded with the opinion that the Veteran's hepatic steatosis and hepatitis C is less likely as not caused by or related to his exposure of Camp Lejeune contaminated waters given the Veteran has diabetes mellitus, obesity, treatment for elevated lipids, history of hepatitis C, occupational exposure, older age at diagnosis, exposure period of 107 days at levels below those in the studies, latency to diagnosis (45 years post service) and limited scientific evidence. Having reviewed the VA examination reports in their entirety, the Board finds them to be both competent and credible evidence demonstrating that it is less likely than not that the Veteran has a present hepatic condition, such as hepatitis C or hepatic steatosis, that manifested during or as a result of active military service. The record does not contain competent medical evidence suggesting that there is in fact a link between the Veteran's conditions and his military service. The Board recognizes that the Veteran believes he suffers from hepatitis C and hepatic steatosis as a result of his military service - specifically, his exposure to contaminated water while at Camp Lejeune. However, the record does not contain any evidence to demonstrate or suggest that the Veteran has the requisite training or expertise to offer such a complex medical opinion. Also, while the Board acknowledges that the Veteran did have a diagnosis of hepatitis C and hepatic steatosis in 2014, the examiner of record has concluded that this condition has resolved. The examiners opined that it is less likely as not that the Veteran has any current residuals that are at least as likely as not related to active military service, instead identifying a number of other potential risk factors. When read together, the Board finds the VA medical opinions of record to be adequate and highly probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). During the pendency of the appeal, 38 C.F.R. § 3.307 and 3.309 were amended to add a list of diseases associated with contaminants in the water supply at Camp Lejeune from August 1, 1953 to December 31, 1987, to include liver cancer. The medical evidence does not include a diagnosis of liver cancer and therefore, this presumption is not applicable. The Veteran is not service connected for any other disabilities that may have aggravated or caused the Veteran's prior diagnosis of Hepatitis C. The Board has considered the Veteran's condition under all possible theories for service-connection and finds that the evidence of record does not support a grant of service-connection for hepatitis C and hepatic steatosis. In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Hailu, 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.