Citation Nr: 21006035 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 15-02 706 DATE: February 3, 2021 ORDER Service connection for infectious hepatitis is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran has a current diagnosis of infectious hepatitis or residual liver disease. CONCLUSION OF LAW The criteria for service connection for infectious hepatitis are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1963 to June 1967 and from August 1967 to August 1973 in the U.S. Navy. This matter comes before the Board of Veterans’ Appeals (Board) from a March 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This case has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900. The Veteran testified before the undersigned Veterans Law Judge in May 2018. A copy of the hearing transcript is of record. This matter was previously before the Board in January 2019, at which time the issue on appeal was remanded for further development. This case has now been returned to the Board for appellate consideration. The Veteran contends that service connection is warranted for infectious hepatitis. 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). After review of the evidence of record, the Board finds that the preponderance of the evidence is against finding that service connection is warranted for infectious hepatitis or residual liver disease. VA treatment records do not show treatment or confirmed diagnosis of hepatitis or liver disease during the appeal period. In February 2015, VA treatment records noted mild right upper quadrant tenderness, liver edge just below costal margin, however the liver and spleen were noted to be normal. In May 2016, VA treatment records noted slightly elevated liver enzymes. In November 2016, a liver function panel noted elevated liver enzymes, however they were improved from the last test. In April 2017, VA treatment records noted no cirrhosis. In June 2018, the Veteran had normal liver function tests. In February 2019, VA treatment records noted that the Veteran had elevated liver enzymes. The Veteran was afforded a hepatitis VA examination in May 2014. The examiner opined that the Veteran’s in-service treatment for infectious hepatitis was clinically most consistent with hepatitis A, due to the pattern of illness described in the service treatment records (STRs) with a relatively rapid resolution of symptoms after about one week. The examiner noted that serology testing in 1980 indicated a prior hepatitis A infection and the Veteran had a negative hepatitis B serology test. The examiner opined that it is more likely than not that the Veteran had an acute hepatitis A infection during service, which does not cause chronic infection or long-term residuals in patients who recover from the acute infection. The examiner noted that the Veteran did not have a hepatitis C test and recommended further serologic testing. In June 2015, the Veteran underwent another hepatitis VA examination. The examiner noted that the Veteran had a diagnosis of hepatitis A during service that has since resolved. The examiner noted that the Veteran’s private treatment records show that he has had occasional minor transaminase elevations, however, the elevations were not enough to warrant a more formal liver evaluation. Diagnostic testing was completed which showed that and the Veteran does not currently have any evidence of chronic viral hepatitis as there is no evidence of hepatitis B or C infection, and therefore he likely had hepatitis A during service, which does not cause chronic liver disease. In June 2018, the Veteran’s physician opined that the claimed condition (history of hepatitis A) is at least as likely as not to have been incurred in or caused by the claimed in-service injury, event, or illness and it is still continuing today. Based on the medical evidence of record, the physician concluded that the Veteran had hepatitis A during service. Additionally, the physician stated that the Veteran had slightly elevated liver enzymes dating to at least April 2013, which has since resolved, but is likely caused by other medical conditions. The physician further stated that the Veteran’s liver tests are now normal and concluded that there are no residuals and clinically, hepatitis A does not cause chronic liver disease. Private treatment records noted that the Veteran had a history of hepatitis B. However, this is contradicted by the other medical evidence of record. Notably, the Veteran underwent multiple serology tests for hepatitis B, which had negative results. Accordingly, the Board finds that the Veteran does not have hepatitis B. Service connection is limited to those cases where an event, disease or injury has resulted in a disability. The Board acknowledges that the Veteran’s STRs show that he had hepatitis A during service. However, in the absence of proof of a present disability for which service connection is sought, there is no valid claim of service connection. Here, the greater weight of the evidence is against the conclusion the Veteran has a current diagnosis of infectious hepatitis or any residual liver disease. Regarding the Veteran’s documented elevated liver enzymes during the appeal period, the Board finds that this represents a finding or symptom and not a disability in and of itself for which VA compensation benefits are payable. The Court has held that “Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim.” Brammer v. Brown, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110, 1131; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). The term “disability” as used for VA purposes refers to impairment of earning capacity. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In this case, the Board finds there is no medical evidence that the Veteran’s elevated liver enzymes caused functional impairment and the Veteran has not presented any evidence this condition has resulted in diminished function or impairment of earning capacity. No underlying pathology relating to high liver enzymes has been diagnosed or identified, nor is there any objective evidence of an illness, disease, or injury causing elevated liver enzymes, or elevated liver enzymes causing a limitation of function. As such, elevated liver enzymes alone do not constitute a disability for which service connection may be granted. The Board notes that in May 2018, the Veteran testified that if he does not eat enough carbohydrates, his liver will swell up and get very painful and has learned to be careful about it, however sometimes it will put him down or he will not be as active as he would like to be. Additionally, the Veteran testified that he has had high bilirubin. The Veteran is competent to testify as to observable symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007.) In addition, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, unlike disorders that may be observable as to both their incurrence and their cause, liver disease or infectious hepatitis are not readily apparent to lay observation. As explained above, the most persuasive and probative evidence of record does not reflect that the Veteran currently has a diagnosis of hepatitis or residual liver disease. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993). The lay statements of the Veteran were considered but are found to be less probative than the VA examinations and opinions, as well as the remaining treatment records. The Board finds it significant that various testing was conducted throughout the appeal period and showed negative results, which further supports the finding that hepatitis or residual liver disease does not presently exist in this case. Thus, given the lack of probative and persuasive value of evidence demonstrating a current disability, the benefit-of-the-doubt rule does not apply, and service connection for infectious hepatitis is denied. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Kernen, 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.