Citation Nr: 21013897 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 15-22 387 DATE: March 10, 2021 ORDER Entitlement to service connection for hepatitis C, to include as secondary to service-connected posttraumatic stress disorder with alcohol dependence is denied. REMANDED Entitlement to service connection for cirrhosis of the liver, to include as secondary to service-connected posttraumatic stress disorder with alcohol dependence is remanded. FINDING OF FACT 1. Hepatitis C did not manifest in service and is unrelated to service. 2. Hepatitis C is not caused or aggravated by a service-connected disease or injury. CONCLUSION OF LAW 1. Hepatitis C was not incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 2. Hepatitis C is not proximately due to, the result of or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1970 to April 1972. This matter was remanded by the Board in May 2019 for evidentiary development. 1. Entitlement to service connection for hepatitis C, to include as secondary to service-connected posttraumatic stress disorder with alcohol dependence The Veteran asserts that his hepatitis C is secondary to service-connected posttraumatic stress disorder with alcohol dependence. His primary argument is that his hepatitis C was incurred as the result of intravenous drug use secondary to his PTSD. Veterans are entitled to compensation if they develop a disability “resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty.” 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service). To establish entitlement to service-connected compensation benefits, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service -the so-called ‘nexus’ requirement.” Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Hepatitis C is not identified as a “chronic disease” under 38 U.S.C. § 1101 and 38 C.F.R. § 3.309 (a). Service connection is warranted on a secondary basis for “disability which is proximately due to or the result of a service-connected disease or injury.” 38 C.F.R. § 3.310 (a). Secondary service connection is also warranted for “[a]ny increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease.” 38 C.F.R. § 3.310 (b). The Board notes that 38 C.F.R. § 3.310 was amended, effective October 10, 2006. Under the revised § 3.310(b) (the existing provision at 38 C.F.R. § 3.310 (b) was moved to sub-section (c)), any increase in severity of a nonservice-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service connected. A review of service treatment records shows no relevant complaints, objective findings, treatment, diagnosis, or any other manifestations of hepatitis C. Clinical evaluation at the Veteran’s April 1972 separation examination did not reveal any relevant findings. The May 2019 Board Remand found various inadequacies with VA medical opinions issued in September 2013 and May 2015. As a result, the Board will largely refrain from discussing these opinions or relying upon their findings. However, an important finding from the May 2015 medical opinion issued by a VA psychologist was that the Veteran’s drug use was not due to his PTSD. The examiner determined that PTSD did not cause hepatitis C. The May 2019 Remand did not take issue with this finding, as it only found the opinion inadequate due to its failure to address aggravation under 38 C.F.R. § 3.310 (b). A September 2019 VA medical opinion was issued pursuant to the Remand. The examiner reiterated that the Veteran’s hepatitis C was likely the result of intravenous drug use and intranasal cocaine use. The Veteran was diagnosed with hepatitis C in 2003. The Veteran reported to the examiner that he used various drugs while in service and continued recreational drug use following separation. The Veteran reported sharing razors and performing first aid while stationed in Vietnam. The examiner notes a 2012 statement by the Veteran in which he reported living his life “in an alcohol and/or drug induced haze” for over 30 years after separation from service. This statement is in the file. Pursuant to a review of the file and the Veteran’s statements, the examiner concluded that the Veteran’s hepatitis C was more likely than not due to intravenous and intranasal drug use following separation from service, thus incurred at some point over the 30 plus years of recreational drug use after leaving service. Citing the date of diagnosis, the date that hepatitis C testing became medically available (1989), and the 30 plus years of post-service drug use in comparison to the 8 months of in-service drug use, the examiner concluded that the Veteran’s hepatitis C was less likely than not incurred during active service. In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The probative value of a medical opinion primarily comes from its reasoning; threshold considerations are whether a person opining is suitably qualified and sufficiently informed. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this case, the Board accepts the September 2019 VA examiner’s opinion that the Veteran’s hepatitis C is less likely than not related to his service as highly probative medical evidence on this point. The Board notes that the examiner rendered her opinion after thoroughly reviewing the claims file and relevant medical records. The examiner noted the Veteran’s pertinent history and provided a reasoned analysis of the case. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). To the extent that the Veteran asserts that his hepatitis C is directly related to service, the Board finds these statements are far less probative than the opinion of the VA medical professional, as it is far more detailed and reasoned. The Board finds that the probative value of the lay assertions is outweighed by the clinical evidence of record. The evidence of record suggests that the Veteran was not identified with hepatitis C until 2003, approximately 31 years after separation. Nothing at that time suggested a history dating back to service. There is no medical evidence of record documenting manifestations of hepatitis C in service. The Board finds that the contemporaneous medical records outweigh the post-service lay statements of the Veteran with respect to a direct link between his hepatitis C and active service. The medical evidence of record is afforded greater probative value than the more general after-the-fact lay assertions of the Veteran. In sum, there is insufficient competent and probative evidence linking the Veteran’s hepatitis C to service. The contemporaneous records establish that relevant systems were normal throughout service. The more probative evidence establishes that the Veteran did not have hepatitis C during service, that hepatitis C is not related to any event in service, and that hepatitis C is most likely related to post-service recreational drug use. The evidence establishes that the remote onset of hepatitis C is unrelated to service. The preponderance of the evidence is against the claim of entitlement to service connection for hepatitis C on a direct basis. As noted, the Veteran’s primary assertion is that his hepatitis C is secondary to his service-connected PTSD with alcohol dependence. As mentioned, the May 2015 VA examiner made clear that the Veteran’s drug use was not the result of his service-connected PTSD. There is no other probative medical evidence suggesting a link between the drug use and the Veteran’s PTSD. The September 2019 VA examiner opined that the Veteran’s hepatitis C was less likely than not caused by or secondary to the service-connected PTSD with alcohol dependence. The examiner notes that alcohol does not cause hepatitis C, the Veteran’s hepatitis C is most likely due to viral exposure from intravenous or intranasal drug use, and the Veteran’s drug use has not been medically linked to his PTSD. The examiner similarly concludes that the Veteran’s hepatitis C is not aggravated by the Veteran’s PTSD with alcohol dependence, noting that the Veteran is asymptomatic and currently has a non-detectable viral load of hepatitis C. The Board acknowledges that the Veteran is competent, even as a layperson, to attest to factual matters of which he has first-hand knowledge, e.g., an injury during his active military service. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, as a layperson, it is not shown that the Veteran possesses the medical expertise to provide a medical opinion linking his hepatitis C to his service-connected PTSD with alcohol dependence. The only medical opinions of record addressing the claimed relationship are negative. No competent medical opinion linking his hepatitis C to his PTSD with alcohol dependence has been presented. The VA examiners considered the Veteran’s lay assertions, but ultimately found that the Veteran’s hepatitis C was not caused by or aggravated by his service-connected PTSD with alcohol dependence. The Board finds that the Veteran’s lay statements are outweighed by the VA examiners’ medical opinions as they are based on consideration of the Veteran’s contentions, review of medical records, and medical expertise. We also note that the Veteran is service connected for other disabilities. However, there is no proof or allegation that hepatitis C is caused or aggravated by these other disabilities. The Board finds that the preponderance of the evidence is against a finding that the Veteran’s hepatitis C is directly related to service, or in the alternative, secondary to service-connected disease or injury, and the claim must be denied. REASONS FOR REMAND 1. Entitlement to service connection for cirrhosis of the liver, to include as secondary to service-connected posttraumatic stress disorder with alcohol dependence is remanded. The May 2019 Board Remand directed the examiner to issue an opinion (among others) as to whether service-connected PTSD with alcohol dependence aggravated the Veteran’s cirrhosis. The examiner states that it is her opinion that cirrhosis is not aggravated by the Veteran’s PTSD with alcohol abuse. However, in the first sentence of her rationale, the examiner states the following: “[t]his examiner cannot determine if Veteran’s alcohol use is aggravating his cirrhosis of the liver. Veteran has been referred to a civilian gastroenterologist who specializes in liver disease and that specialist could possibly offer some insight as to the current status of the Veteran’s cirrhosis.” The examiner makes clear that she is unable to offer an opinion specific to aggravation under section 3.310 (b), however, another medical professional would possess the expertise to issue such an opinion. As such, a new opinion addressing section 3.310 is appropriate. The matters are REMANDED for the following action: 1. Return the claims file to an examiner of appropriate expertise to determine the etiology of the Veteran’s cirrhosis. Based on a review of the record, the examiner(s) should: (a) Provide an opinion as to whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that cirrhosis was caused by service-connected PTSD with alcohol dependence. (b) Provide an opinion as to whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that cirrhosis is aggravated by service-connected PTSD with alcohol dependence. If PTSD with alcohol dependence aggravates cirrhosis, the examiner should identify the percentage of disability which is attributable to the aggravation. 38 C.F.R. § 3.310. A complete rationale for any opinion expressed should be provided in a report. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. R. Stephens 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.