Citation Nr: 21076971 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 17-52 008 DATE: December 28, 2021 ORDER Entitlement to service connection for hepatitis C is denied. Entitlement to service connection for cirrhosis, to include as secondary to hepatitis C is denied. Entitlement to service connection for a right ankle disability, to include as secondary to cirrhosis is denied. Entitlement to service connection for a left ankle disability, to include as secondary to cirrhosis is denied. FINDINGS OF FACT 1. The weight of the evidence is against finding that hepatitis C began during active service or is otherwise related to an in-service injury or disease. 2. The Veteran's cirrhosis, right ankle disability, and left ankle disability are not secondary to any service-connected disability and are not otherwise related to an in-service injury or disease. 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 cirrhosis, a right ankle disability, and a left ankle disability due to service or any service-connected disability 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 on active duty from October 1973 to October 1975. This appeal is before the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). These issues were previously before the Board in April 2019, at which time they were remanded for further development to obtain outstanding treatment records and obtain an addendum opinion concerning the Veteran's hepatitis C claim. Those remand instructions since have been completed as directed. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Service Connection 1. Entitlement to service connection for hepatitis C The Veteran asserts that he has hepatitis C as a result of exposure to hepatitis C infected blood during service, including especially on a pneumatic injection gun, also known as a jet injector. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of hepatitis C, and evidence shows that he received vaccinations during service, the preponderance of the evidence weighs against finding that the Veteran's diagnosis of hepatitis C began during service or is otherwise related to an in-service injury, event, or disease. The Veteran's service treatment records (STRs) show that he received multiple vaccinations during service. The September 1975 separation examination shows that he has a tattoo on his right shoulder. VA treatment records show the Veteran was not diagnosed with hepatitis C until 2008, 33 years after his separation from service. In September 2008, the Veteran presented to the emergency room on referral from a methadone clinic due to elevated liver function tests and a positive hepatitis C test. A December 2008 VA treatment record shows that the Veteran was seen by the substance abuse treatment program and reported taking methadone but refused further substance abuse treatment. In October 2013, the Veteran submitted an August 2013 letter from treating VA doctor Dr. L.J.J. In this letter, Dr. L.J.J. stated that the Veteran has a current diagnosis of hepatitis C and as a result, has developed cirrhosis. Further, the Veteran had never sought treatment for hepatitis C because his chances of responding to then available medicines were very slim due to his advanced liver disease. Dr. L.J.J. then stated, "[the Veteran] was in the Army from 1973 to 1975 where he was exposed to hepatitis C infected blood during multiple vaccinations. I strongly believe that he was infected with the hepatitis C virus while in the military." Dr. L.J.J. did not provide a rationale or supporting evidence for this opinion, nor did he address the Veteran's history of intravenous (IV) drug use, cocaine use, tattoo, or alcohol use disorder. In October 2014, the Veteran underwent a VA hepatitis examination. The examiner noted that the Veteran's risk factors for hepatitis C include his history of IV drug use and alcohol use disorder. This examiner opined that it was less likely than not that the Veteran's hepatitis C was the result of receiving vaccinations via jet injector during service, and rather, it was more likely due to his history of IV drug use - a well established risk factor for hepatitis C. A May 2015 VA treatment record, signed by Dr. L.J.J. shows that when establishing treatment for hepatitis C, the Veteran denied having any tattoos and having any history of IV drug use. In the April 2019 remand, the Board found the October 2014 opinion to be inadequate because the examiner failed to address the Veteran's lay statements that he contracted hepatitis C through use of a jet injector for vaccinations. In November 2019, a VA examiner conducted a file review and provided an updated opinion concerning the Veteran's hepatitis C. This examiner opined that it was less likely than not that the Veteran's hepatitis C was the result of his service, including vaccinations via jet injector. The rationale was that medical literature has not documented a case of hepatitis C transmitted by a jet injector, although it is biologically possible. However, the examiner explained that based on the Veteran's available medical history, it is well documented that the Veteran's greatest risk for hepatitis C is his history of IV drug use, along with history of cocaine and severe alcohol use disorders. The examiner further stated that IV drug use is the most efficient way to transmit hepatitis C. The Board finds the November 2019 examiner's opinion to be highly probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board points out that VA practitioner Dr. L.J.J. opined that the Veteran's hepatitis was likely the result of exposure to infected blood during service, however his opinion lacked any rationale. As such, the Board finds this opinion to be less probative than the November 2019 VA examiner's opinion. There is no indication that Dr. L.J.J. reviewed pertinent medical evidence in the claims file, including especially the Veteran's lengthy history of IV drug use, cocaine use, and alcohol use. Instead, the opinion appears to be based on the Veteran's self-reported medical history of no IV drug use or tattoos, which is inconsistent with his STRs and VA treatment records that show he has a tattoo and has an extensive history of IV drug use. Nieves-Rodriguez, 22 Vet. App. at 304; Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). Consequently, the Board gives more probative weight to the November 2019 VA examiner's opinion. Since the November 2019 VA examiner did not find that the Veteran's hepatitis C is attributable to his service, the preponderance of the evidence is against this claim. Because the Veteran is a layman, he does not have the competence to give a probative opinion concerning the etiology of his hepatitis C. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, the VA medical examiner's opinion against this claim is more probative and, in fact, determinative of the ultimate disposition. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). For these reasons and bases, the preponderance of the evidence is against this claim for service connection for hepatitis C. In denying this claim, the Board finds the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to service connection for cirrhosis, a right ankle disability, and a left ankle disability The Veteran contends that his hepatitis C is the cause of his cirrhosis, and that his cirrhosis in turn, causes right and left, so bilateral, ankle edema and pain. The theory of entitlement for the Veteran's claims for service connection for cirrhosis, a right ankle disability, and a left ankle disability is that of secondary service connection. Service connection may be granted on a secondary basis for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Here, though, as the Board already has concluded that service connection is not warranted for the Veteran's hepatitis C, there necessarily can be no secondary service connection for his cirrhosis, right ankle disability, or left ankle disability because the hepatitis C, itself, has not been determined to be service-connected. By logical deduction, any additionally claimed disability, so including his cirrhosis and bilateral ankles, cannot be secondarily related to his service in this circumstance. Further, the Veteran is not service connected for any other disability. The Veteran has not argued, and the evidence of record does not suggest, that his cirrhosis or bilateral ankle disabilities are the direct or even presumptive result of his military service. Certain diseases, including cirrhosis, also may be presumed to have been incurred in service if they manifested to a compensable degree (generally meaning to at least 10-percent disabling) within a year after the Veteran's separation from service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Here though, the record shows that the Veteran separated from service in October 1975 but was not diagnosed with cirrhosis until around 2012, 37 years after his separation from service. As such, service connection for cirrhosis on a presumptive basis is not warranted. Thus, while the Veteran has a current diagnosis of cirrhosis with medical documentation of bilateral ankle edema owing to his cirrhosis, the preponderance of the evidence is against finding that these are directly, presumptively or secondarily related to his service (the latter by way of a service-connected disability). 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Consequently, the Board finds that entitlement to service connection for cirrhosis, a right ankle disability, or a left ankle disability, including secondary to a nonservice-connected disability, namely, his hepatitis C, is not warranted. James Springer Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Pak 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.