Citation Nr: 21014283 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 15-42 623A DATE: March 11, 2021 ORDER Service connection for Hepatitis C is denied. REMANDED Entitlement to service connection for peripheral neuropathy of the right lower extremity, to include as due to exposure to herbicide agents, is remanded. FINDING OF FACT The Veteran’s Hepatitis C did not manifest in-service and is not shown to be causally or etiologically related to an in-service event, injury or disease. CONCLUSION OF LAW The criteria for service connection for Hepatitis C have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 1967 to September 1969. He died in January 2018; the appellant is his surviving spouse and has been properly substituted in this case. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Manchester, New Hampshire. It was previously before the Board in January 2019, at which time it was remanded for further development, to include obtaining medical opinions regarding the claims. The Board finds that there has been substantial compliance with its remand instructions, as pertaining to the Hepatitis C claim, and that it may proceed with appellate review of that claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). To establish service connection, the evidence generally 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). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Hepatitis C The appellant asserts that the Veteran was inoculated with jet guns in service and was responsible for carrying soldiers off the battlefield, exposing him to tainted blood, and that this exposure caused him to develop Hepatitis C. In his April 1967 enlistment examination, the Veteran was noted to have no tattoos, jaundice, drug or narcotic habit, excessive drinking habit, or homosexual tendencies. See December 2014 Service Treatment Record (STR) – Medical. The Veteran did have a small scar on the left small finger. In a June 1969 STR, the Veteran was seen for problems with drug use and abuse. The Veteran stated that he was coming down from a four-day amphetamine and had not used lysergic acid diethylamide (LSD) for two weeks. No notes on needle use was noted. In fact, the examiner noted that except for chronic testicle problems the Veteran had no physical problem. In his September 1969 separation examination, the Veteran was negative for tattoos, jaundice, excessive drinking habit, and homosexual tendencies. However, the Veteran endorsed having a drug or narcotic habit. The record contains two VA medical opinions which address the appellant’s claims. In a November 2015 opinion, an examiner opined that the Veteran’s Hepatitis C was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner addressed the Veteran’s contention that air gun vaccine injections were a likely risk factor for contracting Hepatitis C, but noted that the VA training directs that there is no known instance of Hepatitis C infection occurring as a result of vaccination guns. The examiner explained that air gun injections were no longer being used due to theoretical concerns about the possibility of transmitting blood borne infections and potential liability rather than because of any evidence that there were, in fact, actual cases determined to be due to air gun injectors. The examiner also addressed the contention that the Veteran was exposed to potentially infected blood carrying wounded and dead soldiers off the battlefield. The examiner explained that accidental exposure to blood by healthcare workers (to include combat medics or corpsmen) is considered a risk factor for transmission of Hepatitis C virus. Generally, such accidental exposure is considered to be percutaneous (i.e., accidental needle sticks, cuts with a bloody scalpel, and other similar exposures). There is no evidence that the Veteran served in this capacity. Contact of infected blood with intact skin, such as would likely have occurred in this Veteran’s situation, is not known to be a risk factor for transmission of Hepatitis C virus. The examiner also addressed a possible drug-related Hepatitis C. The examiner noted that the Veteran persistently denied injection drug use which is felt by the CDC and other authorities to be the most common means of Hepatitis C virus transmission. The examiner noted that in a July 1969 STR the Veteran used amphetamines and LSD (both generally taken orally) with no notation of IV drug use. As the Veteran persistently denied injection drug use and the records do not indicate use of injection drug use the examiner determined that there is nothing in the VA treatment records to suggest any IV drug use or cocaine use after service. Regarding tattoos, the Veteran stated that he had a tattoo on his left hand and that it was done by a friend who ‘eventually developed some sort of hepatitis.’ The examiner explained that the record did not confirm any tattoos being present at the time the Veteran left service. Although a tattoo performed with unclean needles may transmit Hepatitis C virus, there is no confirmation that this in fact occurred during active duty service. Concerning sexual contact with a Hepatitis C virus-infected person, the examiner stated that this is an inefficient means of transmission. Further, there is no evidence of record to support that sexual transmission during active duty service is the likely mode of transmission of Hepatitis C virus nor has the Veteran claimed as such. The examiner concluded that other known risk factors for transmission of Hepatitis C virus do not apply to the Veteran. It is not possible to determine when he was exposed with any degree of certainty, but the available evidence does not support that this occurred during active duty service for reasons discussed above. In up to five percent of cases of Hepatitis C virus no specific risk factor or source of infection has been identified in many studies. In January 2019, the Board determined that the record was inadequate regarding whether or not the Veteran received a tattoo while in service, and remanded the claim for development, to include obtaining an addendum opinion. In a June 2020 opinion, a VA examiner opined that the Veteran’s Hepatitis C was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner explained in detail that according to the World Health Organization, the average risk for infection after a needlestick or cut exposure to Hepatitis C virus-infected blood is approximately 1.8 percent. The risk following a blood exposure to the eye, nose or mouth is unknown but is believed to be very small. The examiner noted that the medical records were silent for evidence of bloodborne exposures, needle sticks, exposure to infected partners from high-risk sexual activity, IV drug use or a positive Hepatitis C tests prior to 2001. The examiner cited the various risk factors for Hepatitis C development and explained how the Veteran did not meet them while in service. He cited multiple post-service VA treatment records in which the Veteran both admitted and denied obtaining a tattoo in service, and admitted and denied using intranasal drugs after service. The Board notes that, based on a statement from the Veteran’s son, and post-service treatment notes, it appears that the Veteran did not, in fact, have any tattoos. The examiner acknowledged this fact in his extensive, detailed explanation as to why the Veteran’s Hepatitis C was not of service origin. Ultimately, the June 2020 examiner concluded that it was not possible to determine precisely when the Veteran was exposed, but that the available evidence showed that it was less likely than not during service. He pointed out that many studies found that up to 5 percent of cases of Hepatitis C infection, no specific risk factor or source of infection had been identified. The Board assigns great probative value to the November 2015 and June 2020 medical opinions as they are well supported and based on a thorough review of the Veteran’s claims file. Moreover, the VA examiners each provided a detailed rationale in support of the opinions provided, with clear conclusions, supporting data, and reasoned medical explanations. Accordingly, they are entitled to great probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). Notably, there is no medical opinion of record to the contrary. To the extent that the appellant (and, before his death, the Veteran) asserts that the Veteran was infected with Hepatitis C during his military service, the Board does not question the sincerity of these beliefs. While the Veteran and appellant are certainly competent to provide information regarding symptoms and a medical history, there is no indication that they possess the requisite medical training or expertise necessary to render them competent to offer evidence on complicated matters such as a medical diagnosis or causation. See Layno v. Brown, 6 Vet. App. 465 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining 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). As such, the Board accords their statements regarding the nature and etiology of Hepatitis C no probative weight. Even if the Veteran and appellant were competent to provide an etiological opinion, which laypersons are able to do in some instances, the Board finds that the reasoned conclusions of the VA examiners are more probative than these assertions. The medical professionals have the training, experience, and expertise that the Veteran and appellant are not shown to have. As such, their opinions are outweighed by the opinions provided by the VA examiners. Accordingly, the Board finds that the preponderance of the evidence is against the appellant’s claim. Although a claimant is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. The claim is denied. REASONS FOR REMAND Entitlement to service connection for peripheral neuropathy of the right lower extremity, to include as due to exposure to herbicide agents The appellant asserts that the Veteran developed right lower extremity neuropathy due to his exposure to herbicide agents while serving in the Republic of Vietnam. The Board notes that in an August 2013 VA treatment record, a monofilament testing revealed peripheral neuropathy of the toes bilaterally with subjective numbness, burning and paresthesias. See August 2015 CAPRI. The Board further notes that the Veteran was stationed in Vietnam. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to a herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). Thus, the Veteran’s exposure to herbicide agents is conceded. Turning to the medical evidence, the Board finds that in the September 1969 separation examination the Veteran endorsed having cramps in his legs. See December 2014 STR – Medical. In the June 1984 Agent Orange Registry, the Veteran complained of nerves and lack of circulation. See February 1985 Medical Treatment Record – Government Facility. On examination, the Veteran exhibited normal peripheral nerves. The Veteran explained that he had experienced peripheral neuropathy prior to 1984 but dismissed it as he did not have health insurance. See December 2015 Third Party Correspondence. The Veteran further explained that when he was entered into the VA health system he inquired about his symptoms and was told that it was due to his boots or being on his feet all day. In response to its January 2019 remand, a VA medical opinion regarding the etiology of the Veteran’s neuropathy was obtained. In the resulting July 2020 report, an examiner opined that the Veteran’s peripheral neuropathy of the right lower extremity was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner explained that after a thorough review of the Veteran’s medical records, there was insufficient evidence to diagnose a peripheral neuropathy of the right lower extremity. The Board finds that an addendum opinion is warranted for several reasons. First, the examiner stated that a 2013 record noted of numb toes but that no diagnosis was rendered. This is incorrect. The August 2013 PCP diagnosed the Veteran with peripheral neuropathy as a monofilament testing revealed peripheral neuropathy of the bilateral lower extremities (toes). Second, the Board notes that the July 2020 examiner did not opine to whether the Veteran’s peripheral neuropathy of the right lower extremity is etiologically related to the Veteran’s exposure to herbicide agents. Third, the examiner did not address the September 1969 separation examination wherein the Veteran endorsed having cramps in his legs; the June 1984 Agent Orange Registry wherein the Veteran complained of nerves and lack of circulation; and the Veteran’s statement that he has had peripheral neuropathy prior to 1984 but dismissed it as he did not have health insurance. See December 2015 Third Party Correspondence. Based on the foregoing, the Board finds that an addendum opinion is warranted. The matter is REMANDED for the following action: Obtain an addendum opinion from an appropriately qualified examiner to determine the nature and etiology of the Veteran’s peripheral neuropathy of the right lower extremity. The claims file, including a copy of this remand, must be made available to be reviewed by the examiner. The examiner is asked to provide an opinion as to whether it is at least as likely as not (that is, a 50 percent probability or more) that the Veteran’s diagnosed peripheral neuropathy of the right lower extremity had its onset in service or is otherwise related to service, to include exposure to herbicide agents. The examiner should note that diagnosis of peripheral neuropathy of the right lower extremity is conceded as an August 2013 VA treatment record shows a monofilament testing that revealed peripheral neuropathy of the bilateral lower extremities. The examiner is asked to discuss the September 1969 separation examination wherein the Veteran endorsed having cramps in his legs; the June 1984 Agent Orange Registry wherein the Veteran complained of nerves and lack of circulation; and the Veteran’s December 2015 statement that he had peripheral neuropathy prior to 1984 but dismissed it as he did not have health insurance. A detailed rationale for all opinions must be provided. JEREMY J. OLSEN Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Noh, 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.