Citation Nr: 21075585 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 17-23 445 DATE: December 20, 2021 ORDER Entitlement to service connection of hepatitis C is denied. Entitlement to service connection of high blood pressure is denied. Entitlement to service connection of esophageal varices is denied. Entitlement to service connection of cirrhosis of the liver is denied. Entitlement to service connection of gall stones is denied. FINDINGS OF FACT 1. Presuming the Veteran was inoculated with a "jet injector" during active service, it is less likely than not that that his current hepatitis C is related to that incident; it is more likely related to his post-service social risk factors. 2. The Veteran did not sustain any in-service incident, illness or injury to which his present high blood pressure, esophageal varices, cirrhosis of the liver, or gall stones may be etiologically linked; there is no evidence of a nexus between his present high blood pressure, esophageal varices, cirrhosis of the liver, or gall stones and service; he is not service-connected for a primary disability to which any of the claimed disabilities may be etiologically linked or found aggravated thereby. CONCLUSIONS OF LAW 1. The criteria for service connection for hepatitis C are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for high blood pressure due to service or hepatitis C are not met. 38 U.S.C. §§1110, 1131, 5107; 38 C.F.R. §§3.102, 3.310. 3. The criteria for service connection for esophageal varices due to service or hepatitis C are not met. 38 U.S.C. §§1110, 1131, 5107; 38 C.F.R. §§3.102, 3.310. 4. The criteria for service connection for cirrhosis of the liver due to service or hepatitis C are not met. 38 U.S.C. §§1110, 1131, 5107; 38 C.F.R. §§3.102, 3.310. 5. The criteria for service connection for gall stones due to service or hepatitis C are not met. 38 U.S.C. §§1110, 1131, 5107; 38 C.F.R. §§3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in active duty from February 1977 to Mau 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2019, the Veteran testified before the undersigned Veterans Law Judge. A transcript of that hearing is of record. These issues previously came before the Board in October 2020, at which time the Board denied the claims. The Veteran appealed those denials, as well as a denial of service connection of sleep apnea to the United States Court of Appeals for Veterans Claims (Court). In April 2021, the Court granted a Joint Motion for Remand (JMR, in which the parties agreed to reverse the holdings of the Board with regard to the sleep apnea claim, and the claims addressed herein, for further appellate review. In August 2021, the Board issued a decision and remand in which it continued to deny the claim of service connection of sleep apnea, and remanded the immediate issues for further development. That development has been accomplished and the issues again returned to the Board for further appellate review. 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). In addition, certain chronic diseases may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). It is noted that none of the claimed conditions in this appeal are listed as "chronic" for presumptive purposes. However, regardless of whether a condition is listed as chronic for presumptive purposes, a continuity of symptoms from the time of service is a factor to consider in assessing any claim. A disability may also be found service connected on a secondary basis by demonstrating that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. See Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310. 1. Entitlement to service connection of hepatitis C The Veteran seeks service connection of hepatitis C. The Board continues to find that the claim should be denied. As an initial matter, as was previously noted, the Veteran has a confirmed diagnosis of hepatitis C, as documented in his VA treatment records. As was also previously noted, upon review of his service treatment records, there is no evidence of any in-service incident, illness or injury to which the present hepatitis C could be etiologically linked. He did not complaint of any liver-related illnesses or show symptoms which may be attributed to a hepatitis infection during active service. The Veteran asserts that he contracted hepatitis C during active service, specifically via inoculation with a "jet injector" gun. The Board previously denied the claim finding the Veteran's assertion that he was inoculated with a jet injector to be less than credible as there was (a) no medical evidence that such a device was used on the Veteran during active service, and (b) the Veteran had a history of significant post-service, high-risk activity for hepatitis C, to include drug and alcohol use. Because the possible use of a jet injector was the only possible in-service incident, of which there was no documented medical proof, the Board found no evidence of an in-service incident, illness or injury to which the present hepatitis C could be etiologically linked. The Veteran appealed the Board's denial to the Court, which granted the JMR, returning the appeal to the Board. In that JMR, the parties agreed that the Board erred in failing to provide adequate reasons and bases for finding the Veteran's lay statements regarding the use of a jet injector to be less than credible. As was noted in the August 2021 remand, the Board again noted that any testimony from someone other than the Veteran that he told them he was injected with a jet injector is neither competent, nor credible for purposes of establishing that such an injection took place, as there is no firsthand knowledge of the facts in testimony. Layno v. Brown, 6 Vet. App. 465, 471 (1994)("[c]ompetent testimony is thus limited to that which the witness has actually observed, and is within the realm of his personal knowledge"). Further, the Board again noted that the Veteran's service treatment records do not document any such use of a jet injector only that the Veteran had been inoculated during active service. Further, given that the Veteran's testimony of being injected with a jet injector was not supported by the record, and the testimony was given many years after the fact, in connection with the Veteran's own self-interest in the outcome of the matter, the Board did not find his testimony to be credible. See Caluza v. Brown, 7 Vet. App. 498 (1995). Nonetheless, the parties agreed in the JMR that this rationale was inadequate based on the specific facts of this case. Ultimately, the Board concluded that there was no proof that the Veteran was ever inoculated using a jet injector. However, there was no express proof to the contrary either. As such, the Board remanded the appeal so that a medical opinion could be obtained which assessed the Veteran's claim based on his lay statements. In September 2021, a medical expert opinion was obtained following a complete review of the Veteran's medical history and the claims file, to include the Veteran's own lay statements and lay medical history. The examiner took a detailed medical history and concluded that the claimed hepatitis C was less likely than not related to the claimed in-service inoculation with a jet injector. In support of the medical conclusion, the examiner stated that jet injectors could bring blood or other body fluids to the surface of the skin while a vaccine was being administered. Those fluids could contaminate the injector, creating the possibility that viruses could be transmitted to another person being vaccinated with the same device. Of particular concern as blood-borne viruses. However, even though the Veteran had a jet inoculation in service, he also has a significant social history of hepatitis risk factors. Specifically, he admits a past history of intranasal drug use from the 1970s until about 5 years earlier. He also admitted to having a tattoo in the late 1980s or early 1990s. He denied any past treatments for or symptoms of hepatitis C prior to 2012. Therefore, it was less likely than not that the Veteran's hepatitis C was proximately due to a jet inoculation, and more likely due to his documented social history risk factors. In further support of the conclusions reached, the examiner cited to published articles discussing the risk of using a jet injector. The Board finds this opinion to be persuasive. It was given by a medical specialist in contemplation of the specific facts of this case, to include the Veteran's own lay statements and medical and social history. It reached its conclusion by applying the facts of this specific case to known medical principles and included citation to published medical treatise evidence. Overall, the Board agrees with the VA examiner's assessment that the evidence reflects that the use of jet injectors could have led to the spread of viruses such as hepatitis. However, the mere fact that something could be a causative factor is fundamentally speculative, and is insufficient to meet the requirements for service connection. Moreover, unlike some other case, the examiner's contention that there were other causes of the Veteran's infection that were more likely, is also significant. Finally, and importantly, there is no medical opinions or evidence to contradict this opinion. The Board does recognize the Veteran's firmly-held belief that his hepatitis C is use to a jet injector inoculation during active service, but finds this of minimal probative value in this matter. 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 is a lay person without appropriate medical training and expertise, and thus, is not competent to make an etiological conclusion regarding the cause of his hepatitis C, especially in light of the VA specialist's conclusions to the contrary, the Veteran's significant post-service social history, and the fact that the evidence fails to demonstrate the onset of any liver-related or hepatitis-like pathology in service. See id. In sum, the Board finds that, even presuming the Veteran was inoculated with a jet injector during service, it is less likely than not that that his current hepatitis C is related to that incident, and far more likely related to his post-service behavioral risk factors. As such, the claim fails the third criteria of service connection and 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. 2. Entitlement to service connection of high blood pressure 3. Entitlement to service connection of esophageal varices 4. Entitlement to service connection of cirrhosis of the liver 5. Entitlement to service connection of gall stones The Board previously denied the claims of service connection of high blood pressure, esophageal varices, cirrhosis of the liver, and gall stones. At the time of the prior denial, the Board notes that there was no evidence of record that the Veteran sustained an in-service incident, illness or injury to which his present high blood pressure, esophageal varices, cirrhosis or gallstones may be etiologically linked, nor is there any competent and credible medical evidence linking those disabilities to any incident of active service. 38C.F.R. §3.159(c)(4)(i); McLendon v. Nicholson, 20Vet. App.79 (2006). The Veteran did not appeal this portion of the denial, and the Board will not disturb it. Indeed, the Veteran has not truly argued that any of these disorders are directly related to service. The JMR granted in April 2021 exclusively remanded these issues because the Veteran also claimed them as potentially secondary to his claimed hepatitis C, which required further development. As is discussed above, the Board has again denied service connection of hepatitis C. As such, there is no primary disability upon which to grant secondary service connection, the Board must also deny these claims on a secondary basis. In sum, the Board must deny the claims of service connection of high blood pressure, esophageal varices, cirrhosis of the liver, and gall stones because the Veteran did not suffer an in-service incident to which they may be etiologically linked, nor is there a primary disability to which they may be linked on a secondary basis. As such, the claims are again 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. 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Pryce, Counsel