Citation Nr: 21015585 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 15-43 485 DATE: March 17, 2021 ORDER Service connection for hepatitis is denied. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran had hepatitis at any time during or approximate to the pendency of the claim which is related to service. CONCLUSION OF LAW The criteria for service connection for hepatitis are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from June 1977 to June 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded by the Board in June 2019 for further evidentiary development along with service connection for a lung condition. The service connection for a lung condition claim was granted in an August 2020 rating decision and is therefore not before the Board. The Board finds that there has been substantial compliance with the September 2019 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board’s remand directives is required under Stegall). Service connection for residuals of hepatitis Legal Criteria Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection on a direct incurrence basis, the 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The requirement for a current disability is satisfied if the disability is present at any point proximate to the claim, during the claim, or to the appeal period. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2014). If there is no evidence of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Additionally, there must be a demonstration of symptoms proximate to, or since, the time the application is filed. Gilpin v. West, 155 F.3d 1353, 1356 (Fed. Cir. 1998). Factual Background & Analysis The Veteran maintains that he contracted and was hospitalized for Hepatitis during service. The Veteran’s separation examination in May 1980 notes a viral hepatitis B diagnosis (non-reactive) and treatment in April 1980. The record also includes an October 2012 VA hepatitis examination report. The examiner specifically noted a prior hepatitis A and C diagnosis. No indication of a hepatitis B diagnosis was recorded. The examiner then opined that it was less likely than not that the Veteran’s hepatitis (A or C) was caused by or the result of active service. Specifically, the examiner explained that the Veteran was diagnosed and treated for hepatitis A while in service, which resolved without any residuals. He further reported a negative hepatitis B diagnosis, positive hepatitis C diagnosis in April 2005, and a negative hepatitis C diagnosis in September 2012, with a normal liver function test. The Board remanded this claim in June 2019 to clear up a discrepancy between the Veteran’s STRs and the October 2012 VA examination. Specifically, to determine whether the hepatitis B, diagnosed in service, has morphed into the Veteran’s currently diagnosed hepatitis A or C, or alternatively, the Veteran was misdiagnosed in service. On February 2020 VA examination, the examiner explained that the Veteran has no current diagnosis for hepatitis in any form. The prior diagnosis was made in April 1980 as viral hepatitis and resolved in 1980 (per August 1980 STR). Regarding the discrepancy between the Veteran’s STRs which showed a diagnosis for hepatitis B during service and the October 2012 VA examination report showed a diagnosis and treatment for hepatitis A and C, the examiner stated the October 2012 VA examination report documented SGOT (test for liver enzyme in the blood) of 24 which is normal, HAV-Ab antibody test was reactive (positive) for hepatitis A, HCV-Ab antibody test was nonreactive for hepatitis C (negative), and a past HCV-Ab reactive in April 2005. The examiner stated further that on December 2019 testing all tests were normal or non-reactive and that a lab error or better testing is a likely explanation for the discrepancy. The examiner indicated that the Veteran likely had contracted hepatitis A, but it is not active, and there is no sequelae. The initial threshold question for the Board is whether the Veteran had a diagnosis of hepatitis at any time during the pendency of the claim or recent to the filing of the claim, and if so, whether that disability began during service or is at least as likely as not related to an in-service injury, event, or disease. The February 2020 VA examination report and medical opinion explicitly refute that hepatitis was diagnosed during the period on appeal and that any such diagnosis was due to a lab error or inaccurate testing. Further, VAMC treatment records do not document a diagnosis for or treatment for active hepatitis. Moreover, the evidence of record does not show that any potentially existing symptomology related to hepatitis amounted to a functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). (Continued on the next page)   While the Veteran generally contends that he has had hepatitis during, or approximate to, the pendency of the claim, he has not been shown to have the requisite medical knowledge and expertise to be deemed competent to provide a diagnosis in this case. The issue of providing a diagnosis is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence, including the February 2020 VA examiner’s findings as discussed above. Thus, the most probative evidence of record fails to demonstrate that it is at least as likely as not that the Veteran had hepatitis at any time during or approximate to the pendency of the claim which is related to service. As such, service connection is not warranted. Brammer, 3 Vet. App. at 225. As the necessary element of a present disability with respect to hepatitis has not been satisfied further discussion of in-service incurrence, or nexus to service, is unnecessary. Furthermore, based on the reasons and bases discussed, as the preponderance of the evidence is against the claim, the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection is not warranted for hepatitis. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kyle McKone 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.