Citation Nr: 21010650 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 08-08 428 DATE: February 25, 2021 ORDER Service connection for hepatitis C is denied. REMAND The issue of service connection for diabetes mellitus type 2 is remanded. The issue of service connection for bilateral lower extremity (LE) diabetic peripheral neuropathy (PN) is remanded. The issue of service connection for myositis (myopathy) is remanded. The issue of service connection for hypertension is remanded. The issue of service connection for erectile dysfunction is remanded. The issue of service connection for prostate cancer is remanded. FINDING OF FACT There is no probative medical evidence that the Veteran’s hepatitis C disability was incurred in service. CONCLUSION OF LAW The criteria to establish service connection for hepatitis C have not been satisfied. 38 U.S.C. §§ 1110, 5107 (b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from April 1968 to April 1971. This matter was last before the Board of Veterans’ Appeals (Board) in January 2019 and remanded for further development. Service Connection – Hepatitis C Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310 (b). See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). VA treatment records confirm the Veteran tested positive for hepatitis C in September 2004 and began treatment in 2005. The Veteran contends he contracted hepatitis C during service when he was inoculated with an air gun, or alternatively when a fellow service member’s blood was splattered on him unsuspectingly, or alternatively as secondary to chronic chemical exposure, or finally as secondary to his in-service venereal disease diagnosis and treatment. STRs do not indicate any complaints, diagnoses or treatments for hepatitis C during service. In April 1970 the Veteran screened positive for syphilis. In a June 2005 statement, the Veteran reported that a fellow service member was assaulted in the middle of night, that the victim was hit in the face with a heavy metal entrenching tool, and that when the Veteran awoke from the commotion he saw the victim’s blood all over him. The Veteran does not contend that he received medical treatment and STRs and military personnel records do not corroborate any treatment or discipline related to the incident. At the September 2009 Board hearing, the Veteran could not recall if he had open sores when the incident occurred. At a May 2006 VA medical examination for infectious, immune and nutritional disabilities, the Veteran reported being diagnosed and treated for syphilis during service. The examiner noted the Veteran did not report a blood transfusion before 1992, a known risk factor, and that he did not have any IV drug use, tattoos or accidental needle punctures. The examiner opined the Veteran’s contention that he incurred hepatitis C during service due to air-gun inoculation “very, very unlikely” because everyone, including the examiner, at the time received inoculations and medication via air-gun and there was no evidence of an outbreak of venereal disease and/or hepatitis C in the military. In an April 2010 addendum opinion, the same May 2006 examiner reviewed the Veteran’s claims file and opined the Veteran’s hepatitis C disability was not related to his in-service venereal disease diagnosis and treatment. The examiner noted that the Veteran’s venereal disease was successfully treated during service with penicillin and antibiotics, that the Veteran did not have hemodialysis, but the Veteran did have chronic hepatitis with cirrhosis. The examiner explained that the Veteran’s hepatitis C disability was not related to his in-service bout with a venereal disease because his venereal disease was treated and resolved during service. The preponderance of the evidence is against finding service connection for hepatitis C. The Veteran’s disability does not warrant presumptive service connection based on the provisions of 3.307 and 3.309 as a disease associated with herbicide exposure and the Veteran has not produced any evidence that his hepatitis C is etiologically related to any other chemical exposure. Furthermore, there is no probative medical evidence that indicates the Veteran’s hepatitis C disability was incurred in service because STRs are silent for any diagnosis or treatment, and probative medical evidence does not indicate that he contracted hepatitis C due to his in-service inoculation with an air-gun or his in-service diagnosis and treatment for a venereal disease. The Veteran has continuously asserted throughout the appeal that his current hepatitis C disability is a result of in-service incidents of air-gun inoculation, possible accident blood transfusion, or his in-service treatment for a venereal disease. As noted above, the Veteran is competent to report observable symptomatology of his condition and to relate a contemporaneous medical diagnosis, but he is not competent to render a nexus opinion or attempt to present lay assertions to establish a nexus between his current hepatitis C diagnosis and its relationship to his service. Since the Veteran’s hepatitis C disability was not incurred in service, the claim for service connection is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. REMAND The issue of service connection for diabetes mellitus type 2 is remanded. The issue of service connection for bilateral lower extremity (LE) diabetic peripheral neuropathy (PN) is remanded. The issue of service connection for myositis (myopathy) is remanded. The issue of service connection for hypertension is remanded. The issue of service connection for erectile dysfunction is remanded. The issue of service connection for prostate cancer is remanded. The Board has determined that additional development is required as to the remaining claims and they are remanded. 1. BACKGROUND FOR THE RO ADJUDICATOR The Veteran contends that he was exposed to herbicides while posted to Korea and stationed at the Area Support Command (ASCOM) depot, APO (Army Post Office) 96220 from January 1969 to February 1970. Among his specific contentions, he reports that as a supply specialist, he was tasked to deliver supplies to various locations specified as having been treated with the herbicide Agent Orange. 38 C.F.R. § 3.307 (a)(6). Although the question of whether the ASCOM depot stored or transported herbicides has been developed, the Board is unable to determine whether the Veteran traveled to the locations known to have been treated by herbicides, such as Camp Casey and Red Cloud. The Board’s remand directive DOES NOT PREVENT THE VETERAN FROM SUBMITTING ADDITIONAL EVIDENCE TO SUPPORT HIS CONTENTION THAT THE ASCOM DEPOT CONTAINED OR OTHERWISE HAD IN ITS LOCATION ANY OF THE SPECIFIED HERBICIDES. The RO will review its earlier findings in this respect after the directed development. The remand directives follow. 2. Contact the Veteran and determine if he has any further competently-rendered information or evidence as to whether herbicides were stored at the ASCOM depot during his assignment between January 1969 to February 1970; and/or any other competent information supporting his contention that he made deliveries to those locations specified that VA has noted were treated with Agent Orange. 3. Return this matter to the Joint Services Records Research Center (JRSSC), and any other appropriate Government records depository to determine if the Veteran’s unit (Company A, ASCOM depot, APO San Francisco 96220) DELIVERED OR RECEIVED SUPPLIES to any of the areas, installations or units noted to have been treated with Agent Orange, and if so, attempt to corroborate whether the Veteran’s duties as a supply specialist would have caused him to participate in these deliveries or retrievals. (Continued on the next page)   4. If the JRSSC cannot substantiate the Veteran’s assertions of deliveries to or receipts from these areas, and if feasible through research of its archives, the JRSSC or any other appropriate government records depository should clarify if any other SUPPLY OR TRANSPORTATION units in ASCOM would have been tasked to deliver Class I (food, rations, water), Class II (clothing, tools, tents, administrative supplies) and Class IV (fortification and barrier materials) to the units or locations exposed to herbicides. Stated alternatively, during the Veteran’s assignment to ASCOM, would there have been any other unit exclusively tasked to deliver supplies to the effected areas? 5. Readjudicate the claim in accordance with appellate procedures. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Anwar, Attorney-Advisor 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.