Citation Nr: 21012054 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 15-13 826 DATE: March 3, 2021 ORDER Entitlement to service connection for hepatitis C is denied. FINDING OF FACT The preponderance of the evidence is against finding that hepatitis C was incurred in or otherwise caused by service. CONCLUSION OF LAW The criteria for entitlement to service connection for hepatitis C have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty in the U.S. Navy from March 1969 to February 1971. This case comes before the Board of Veterans’ Appeals (Board) on appeal of a March 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office in Los Angeles, California which denied service connection for hepatitis C. The Veteran was scheduled to appear at a travel Board hearing before a Veterans Law Judge on February 28, 2019. However, ina February 2019 letter, the Veteran’s attorney withdrew his request for a hearing. Therefore, the Board considers the hearing request withdrawn, and will proceed to adjudicate the case based on the evidence of record. 38C.F.R. §20.704 (d) (2019). In July 2020, the Board remanded the claim for further development of the evidence. There has been substantial compliance with the remand instructions. Entitlement to service connection for hepatitis C The Veteran contends that he contracted hepatitis C during basic training in March 1969 while receiving air injection immunizations. He contends the same air-injected gun was used for each servicemember and that the air injector was never cleaned between immunizations. The Veteran also believes that he contracted a sexually transmitted disease in the Philippines. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110. To establish a right to compensation for a present disability, a Veteran must show: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); see also Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran’s service treatment records do not indicate that he sought treatment for hepatitis C or complained of symptoms related to hepatitis C. Private treatment records dated in January and March 1998 indicate a positive test for hepatitis C. One clinician noted a report from the Veteran of his participation in cardio-pulmonary resuscitation (CPR) training as a security guard from 1988 to 1993 while he had bleeding gums. The clinician hypothesized that the Veteran could have been infected from sharing mannequins during the training. There was no mention of activities in service. March 2014 post-service treatment notes indicate the Veteran has a diagnosis of hepatitis C. An October 2014 DBQ noted a diagnosis of hepatitis C in 1998 which the Veteran stated occurred during sexual contact in 1970 and resulted in symptoms which included aching joints, malaise, nausea, arthralgia, weight-loss, and fatigue. The examiner opined that the Veteran’s hepatitis C was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness, stating that there is documentation of gonorrhea but not documentation of hepatitis C during service. The examiner noted that hepatitis C was found in 1998, but that there is no medical documentation of hepatitis C symptoms. On a February 2015 DBQ, the examiner opined that the Veteran’s hepatitis C was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness, stating that while there is an association between high-risk sexual activity and hepatitis C, and multiple sexual partners are a risk factor for hepatitis C, there is no conclusive evidence that hepatitis C can be transmitted by sexual activity. The examiner also noted that while the Veteran was treated once for gonorrhea during service, there was no documentation of hepatitis C in service, therefore hepatitis C was less likely than not related to service. In an April 2015 statement and in his March 2016 Form 9 appeal, the Veteran asserted that he developed hepatitis C as a result of receiving injections from an air injector which was not cleaned between immunizations during service. After treatment he was informed that he had developed cirrhosis of the liver and a stiff heart, and he believes that these were caused by his hepatitis C and its treatment. June 2017 VA records indicate that the Veteran has a diagnosis of liver cirrhosis. The Veteran was afforded a VA contract examination in October 2020. The examiner noted a diagnosis of hepatitis C in 2000. In 2000, the Veteran reported that he had felt tired all the time so he sought medical treatment where testing showed hepatitis C. The examiner indicated that the hepatitis C was fully resolved and not detectable at the time of examination. Residual symptoms included that the Veteran got tired often. Following examination, the examiner concluded that the hepatitis C was less likely than not incurred in or caused by service. The rationale noted that service treatment records did not show any medical documentation that the Veteran contracted hepatitis C during service. The examiner noted that the Veteran could have contracted hepatitis C at any time after service, but before he was diagnosed in 1998 and 2000. The examiner again noted that there was no documentation of hepatitis C being contracted or treated in service. The examiner concluded, “Therefore, the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness to INCLUDE THE VETERAN[’]S ACCOUNT OF IMMUNIZATIONS WITH AN AIR INJECTOR WHICH HAD NOT BEEN STERILIZED.” (Emphasis in original.) An October 2020 abdominal ultrasound showed redemonstrations of cirrhotic liver morphology and cholelithiasis, with no hepatic lesion identified. Thus, the Veteran has or had hepatitis C or residuals thereof during the appellate time period. The crucial question, therefore, is whether this disability was incurred in or is otherwise caused by service. The Board concludes that it was not. The sole evidence supporting the Veteran’s claim of contracting hepatitis C while in service is his assertions. In that regard, he certainly can attest to factual matters of which he has first-hand knowledge, such as receiving inoculations with an air gun, and his assertions in that regard are entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). In addition, the Board recognizes that lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Given the Veteran’s lack of demonstrated medical expertise, the overall low probability of contracting hepatitis C by the means claimed by the Veteran as opposed to via other means, and the complexity of linking the use of air gun inoculations, the Board concludes that in this case his statements regarding any such link between the in-service experiences and contracting hepatitis C to be of no probative weight. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). Further, the Veteran’s contentions of transmission of the hepatitis C virus by air gun immunizations is not supported by any evidence of record and warrant’s low probative weight. The October 2020 medical examiner specifically considered the likelihood that the hepatitis C was due to this method of transmission and concluded that it was less likely than not. The examiner otherwise concluded that it was less likely than not that the Veteran’s hepatitis was incurred in or caused by service. The examiner discussed the absence of medical or lay evidence to support in-service onset and that it was more likely that the Veteran contracted hepatitis C at some point between his separation from service and his ultimate diagnosis with hepatitis C in 1998. The Board finds this evidence the most probative of record, in light of the examiner’s greater level of medical education, training, and experience and the fact that a full rationale for the opinion was provided. In summary, the Board concludes that the preponderance of the evidence is against the claim for service connection, and the benefit of the doubt rule enunciated in 38 U.S.C. § 5107(b) is not for application. There is not an approximate balance of evidence. See 38 U.S.C. § 5107(b); see generally Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. J. Houbeck, 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.