Citation Nr: 21073451 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 18-02 212 DATE: December 8, 2021 ORDER Service connection for hepatitis C is denied. Service connection for liver damage, claimed as secondary to hepatitis C is denied. FINDING OF FACT The weight of the evidence of record is against a finding that the Veteran's hepatitis C and liver damage began during the Veteran's military service, to include as a result of a blood transfusion during a splenectomy. CONCLUSIONS OF LAW 1. The criteria for a service connection for Hepatitis C have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303. 2. The criteria for a service connection for liver damage, to include as secondary to Hepatitis C, have not been met. 38 U.S.C. §§ 1110; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from July 1970 to January 1972. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision rendered by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2021 the Veteran provided testimony before the undersigned Veterans Law Judge. A transcript of that hearing is included in the record. In July 2021, the Board remanded the appeal to have a VA examiner provide an addendum opinion that addressed the etiology of the Veteran's hepatitis C and liver damage. A VA examiner provided the requested opinion in August 2021. See August 2021 VA opinion. Thus, the requested development has been accomplished, and the matters have returned to the Board for further appellate consideration. The Veteran seeks service connection or hepatitis C and liver damage, as secondary to hepatitis C. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain chronic diseases will be rebuttably presumed if manifest to a compensable degree within one year after separation from active service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Moreover, for such diseases, an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology. See 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As hepatitis C is not a chronic disease, the theory of presumptive service connection and continuity of symptomology are not applicable to the Veteran's claim. The Veteran was diagnosed with active hepatitis in 1979, and he contends that his current hepatitis C and secondary liver damage are the result of a tainted blood transfusion received during a 1971 splenectomy. He acknowledges that he tried intravenous (IV) drugs in approximately 1978, but he believes the timeframe between that usage and the diagnosis of active hepatitis in 1979 was too short for the IV drug use to have been responsible for the contraction of the disease. He thus believes that it was the blood transfusion he received in 1971 that resulted in his contracting of hepatitis C. He maintains that his liver damage is secondary to his hepatitis C. Service Connection for Hepatitis C is denied. The Veteran has been diagnosed as having hepatitis C. See November 2016 examination. Thus, Shedden element number (1), evidence of a current disability, has been met with respect to the claim for service connection or hepatitis C. Concerning Shedden element number (2), evidence of inservice disease or injury, the Veteran's service treatment records (STRs) were silent as to any findings, complaints, or diagnosis of hepatitis, to include hepatitis C. These records, however, disclose that the Veteran received three (3) units of blood during a 1971 splenectomy. Thus, as the Veteran has maintained that his hepatitis C is the result of the in-service transfusion during the 1971 splenectomy, Shedden element number two (2), evidence of inservice disease or injury, has been met. Thus, the determinative factor with respect to the Veteran's claims hinges on Shedden element number three (3), nexus of the diagnosed Hepatitis C and the in-service blood transfusion during the 1971 splenectomy. Post-service VA treatment records reflect that the Veteran had abnormal liver tests in May 1978. At that time, he provided a history of drinking three (3) beers a day that had increased to six (6) to 12 a day. He also reported that 10 days prior to admission to the facility, he had occasionally used drugs, including mescaline and for lysergic acid diethylamide (LSD). Over a period of a month ending several weeks previously, he took morphine and Dilaudid intravenously, but stated that he used Insulin syringes that were sterilized with alcohol. The Veteran indicated that the syringe had been used on more than one occasion and that one of his syringes had also been used previously by a friend who had jaundice and hepatitis one year previously. In August 1979, the Veteran was seen for an infection under the arm. It was noted that he had liver disease. A March 1980 report reflects that the Veteran had a history of chronic active hepatitis since October 1979. There are several VA opinions that are against the relationship between the diagnosed hepatitis C and the in-service blood transfusion that he received during the 1971 splenectomy. In November 2016, a VA examiner provided a negative nexus as to the relationship between the Veteran diagnosed hepatitis C (which was noted to have been diagnosed after 1992), and the blood transfusion received during the 1971 splenectomy. After a review of the above-cited STRs and post-service records, the VA examiner reasoned that although blood products were not screened for hepatitis during 1971 and that it is a possible source of hepatitis, the Veteran's chronic hepatitis was much more likely (more than 50% probability) to have been contracted through his intravenous drug use. The examiner stated that this was particularly noteworthy since there was medical documentation that indicated that the needles, he had used were previously used by his symptomatic friend who was Hepatitis positive. See November 2016 VA opinion. In July 2021, the Board remanded the claim in order to obtain an addendum opinion that addressed the Veteran's theory that the time period from his IV drug use in 1978 and diagnosis of active hepatitis in 1979 (and resulting diagnosis of hepatitis C) was too short not to have been the result of the 1971 blood transfusion, especially considering the slow-moving progress of the disease. Pursuant to the Board's July 2021 remand, a VA examiner provided the requested opinion in August 2021. The VA examiner reviewed the evidence of record, notably the above-referenced STRs and post-service VA treatment and examination reports, as well as the Veteran's testimony at his Board hearing, the VA examiner opined that it was less likely than not (less than 50% probability) that the Veteran's current Hepatitis C was incurred in or caused by the claimed in-service, injury, event, illness or transfusion. The examiner reasoned that the odds ratio for hepatitis C was 49.6 for IV Drug Use, and 10.9 for transfusion prior to Hepatitis C blood products prior to 1990. The examiner noted that the Veteran had a reported history of saying "Yes" to any drug or narcotic habit on his November 1971 separation examination and May 1978 report reflecting that he had occasional use of other drugs, including mescaline and LSD, took morphine and dilaudid intravenously, had used the same syringe on more than one occasion and that one of his syringes had also been used previously by a friend who had jaundice and hepatitis one year previously. The examiner also noted that the Veteran had also taken cocaine and heroin intravenously on perhaps 10-15 occasions. The examiner related that there were no available tests to identify Hepatitis C before 1990, acute infection symptoms/signs for Hepatitis C only occur 25 percent of the time, and that the incidence of Hepatitis C was found to be between 32 to 59 percent of users after one year of intravenous drug use (IVDU). Thus, it was his opinion that for the Veteran or other intravenous drug user, Hepatitis C chronic infection more frequently occurred within a year after exposure than for persons who had transfusions prior to 1990. See August 2021 opinion. After weighing all the evidence, the Board finds the greatest probative value in the VA examiner's November 2016 and August 2021 opinions. These opinions are sufficient to satisfy the statutory requirements of producing an adequate statement of reasons and bases where the expert has fairly considered material evidence which appears to support the Veteran's position. Wray v. Brown, 7 Vet. App. 488, at 492-93 (1995). These opinions in particular provided substantial reasoning and explanation as to why the Veteran's hepatitis C was not due to his active service, notably to his in-service blood transfusion during the 1971 splenectomy. The Veteran has not submitted any competent evidence supporting his assertion that his Hepatitis C was due to the blood transfusion during the 1971 splenectomy. Therefore, after weighing all the evidence, the Board finds great probative value in the VA examiners' opinions. Consideration has been given to the Veteran's assertion that his hepatitis C was due to the blood transfusion during the 1971 splenectomy. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, namely the etiology of the Veteran's hepatitis C, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Hepatitis C is not the type of condition that is readily amenable to mere lay diagnosis or probative comment regarding etiology, as the evidence shows that physical examinations that include objective medical tests, are needed to properly assess and diagnose this disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). That is, although the Board readily acknowledges that Veteran is competent to report perceived symptoms of hepatitis C to the extent they are identifiable by observation (symptoms such as lethargy), he has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that he received any special training or acquired any medical expertise in evaluating arthritis. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value. Thus, service connection is not warranted, and the claim is denied. Service Connection for Liver Damage, claimed as secondary to Hepatitis C Here, as the Board has denied service connection for hepatitis C, secondary service connection cannot be granted for liver damage secondary to hepatitis C as a matter of law. See 38 C.F.R. § 3.310 (a); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Carole Kammel, 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.