Citation Nr: 21021146 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 13-04 727 DATE: April 9, 2021 ORDER Entitlement to service connection for hepatitis B and residuals thereof is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran’s hepatitis B and residuals thereof is related to the Veteran’s active duty service. CONCLUSION OF LAW The criteria for service connection for hepatitis B and residuals thereof, have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in active duty service from September 1962 to December 1971. This matter is on appeal from an April 2011 rating decision. The Board remanded this appeal in July 2017, August 2018, and June 2020 for additional development. The Board notes that in the June 2020 Board decision, the issues on appeal before the Board were entitlement to service connection for hepatitis B and residuals thereof, and whether the reduction of the Veteran’s service-connected sarcoidosis was proper. During the pendency of the appeal, a February 2021 rating decision restored the rating of the Veteran’s sarcoidosis. As such, the issue remaining before the Board is entitlement to service connection for hepatitis B. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Service Connection Service connection is granted on a direct basis when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d). Service connection may be presumed for certain chronic diseases which develop to a compensable degree within one year after discharge from service, even though there is no evidence of such disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. 3.307, 3.309(a). Where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has that chronic disability, service connection can be granted. That does not mean that any manifestations in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time as distinguished from merely isolated findings or a diagnosis including the word chronic. When the disease entity is established, there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303 (b). If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptoms after service may serve as an alternative method of establishing service connection. 38 C.F.R. § 3.303 (b). Continuity of symptoms may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post- service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. Continuity of symptoms applies only to those conditions explicitly recognized as chronic. 38 C.F.R. § 3.309 (a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). In relevant part, 38 U.S.C. § 1154 (a) requires that the VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim to disability. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The standard of proof to be applied in decisions on claims for Veterans’ benefits is set forth at 38 U.S.C. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The first requirement for all claims for service connection, however, is evidence of a disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Hepatitis B The Veteran claims that his hepatitis B is related to his active duty service. In a May 2018 VA examination, the Veteran denied an official diagnosis of hepatitis B and the examiner indicated that laboratory testing did not find the Veteran with a current hepatitis B infection. However, review of the Veteran’s medical treatment record shows the Veteran with active problems for Hepatitis B in September 2010; November 2010; and in November 2011 was noted with a low Hepatitis B viral count. A January 2020 VA addendum opinion noted that the Veteran did have evidence of a prior Hepatitis B infection in 2010 to 2011. The Board notes that the Veteran filed a claim for entitlement to service connection for hepatitis B in June 2010. As such, resolving doubt, the Board finds the Veteran did have a valid diagnosis of Hepatitis B during the pendency of his claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that current disability requirement is satisfied when a claimant “has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim,”); see also Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013) (holding that the Board must address recent pre-claim evidence in assessing whether a current disability exists, for purposes of service connection, at the time the claim was filed or during its pendency). Review of the Veteran’s service treatment records (STRs) do not show any complaints, treatments, or diagnosis for hepatitis B. In June 1964 the Veteran was seen for coughing and stomach pain and in December 1964, a chest x-ray finding were positive for sarcoidosis. In an April 1966 hospital report, it was noted the Veteran was diagnosed with sarcoidosis affecting his lung, liver and kidney based upon x-ray and biopsy of the liver; the Veteran has been treated with steroid therapy for the past 1.5 years and was now considered to be cured with no symptoms and ability to perform his duties normally. The report scheduled the Veteran for a 2-month followup, but the Veteran did not return for this visit. In a September 1966 evaluation the Veteran noted that he was told he had sarcoidosis but felt well now. In an October 1966 evaluation, the Veteran reported a history of stomach, intestinal and liver trouble; the Veteran clarified that from December 1964 to May 1965 he was treated for sarcoidosis and that “he was told he had sarcoidosis of the GI tract” with no trouble to himself. The Veteran further stated, “to the best of my knowledge, my health is good.” In September 1971 it was noted the Veteran reported liver trouble clariid as sarcoidosis with mild liver trouble and involvement. In December 2001 the Veteran reported that 10 years ago he was refused from donating blood due to hepatitis; the Veteran reported blood transfusion and exposure to other person’s blood but did not provide specific detail. In June 2002 the Veteran “questions [the] history of being told he had ‘hepatitis virus’ in the past when donating blood”. No diagnosis was made at this visit and serology was requested. In May 2010 following a recent hospital discharge for pneumonia and gallbladder removal, the treating provider noted the Veteran had hepatitis B. It is unclear whether the provider based this upon the Veteran’s reports as there is no reference to laboratory reports to confirm this finding. In a June 2010 followup, the Veteran’s active problems listed chronic viral hepatitis B without “mentioCholecystectomy”. The treating provider’s assessment noted a history of hepatitis B but requested the labs be checked. In August 2010 the treating provider stated that laboratory reports were reviewed and discussed with the Veteran; the provider assessed the Veteran with hepatitis B positive. In an August 2010 pulmonary consultation, the Veteran reported suffering a duodenal ulcer with severe upper and lower gastrointestinal (GI) bleeding in 1999; the Veteran stated his belief that he received blood transfusions with no other treatment. The Veteran reported that he was told he has “hepatitis B or C” but was not sure. The treating provider noted the Veteran has not received specific treatment. In a September 2010 infectious disease consultation; the Veteran claimed that he has hepatitis B positive. The treating provided noted the Veteran with positive hepatitis B surface antigen. The Veteran reported that he has not donated blood and also denied coming into contact with hepatitis B. The provider also noted that in 2002 the Veteran was negative for Hepatitis B. In a November 2010 infectious disease note, the Veteran stated that he was told in 1970 not to donate blood. The treating provider found the Veteran’s positive hepatitis B findings to be consistent with past exposure. In May 2011 the Veteran was found with a negative hepatitis B viral load and noted to continue observation if the Veteran continued to have a negative viral load. The Veteran stated that he underwent a liver biopsy the previous year when he underwent surgery to remove his gall bladder; however, the treating provider found this was not corroborated by the May 2010 operative note. In a July 2011 statement, the Veteran stated that he was discovered to have the hepatitis B virus as late as 1971 and that doctors had explained to the Veteran that he was “prone to the disease” and asked to not participate in any future blood drives. In November 2011 the Veteran was noted previously to have a low hepatitis B viral load; the provider found the Veteran continued to have a low viral load and observation was to continue. In a February 2013 form 9 statement, the Veteran stated that he was exposed to hepatitis B while on active duty. In February 2013 and June 2015, the Veteran’s active problems continued to list the Veteran with chronic viral hepatitis B without mentioCholecystectomy. In August 2015 the provider noted the Veteran underwent liver biopsy 40 to 50 years ago and reference to February 2015 imaging returned normal findings. The Veteran was afforded a May 2018 VA examination. The Veteran reported the onset of his hepatitis B in 1960; however, the examiner noted that at this examination the Veteran “denied an official diagnosis of hepatitis B” and therefore determined there was no current hepatitis B infection. The examiner also noted the hepatitis panel performed at the examination showed findings within normal limits and no current or active hepatitis B, indicating the Veteran was “adequately immunized from having hepatitis infection” and no diagnosis was warranted. However, the examiner did not address whether the past medical records in 2010 and 2011 showing the Veteran with hepatitis B as an active problem or observations for low viral load were considered valid or erroneous diagnoses for hepatitis B during the appeal period; the examiner also did not opine on whether the Veteran had any residual or functional impairments resulting from his hepatitis B. In an October 2020 VA addendum opinion, the examiner found it was less likely than not that the Veteran’s hepatitis B was incurred in or caused by the Veteran’s active duty service. The examiner noted that the Veteran’s entrance examination and physicals held in 1963, 1966 and 1969 were silent for hepatitis or GI concerns. The examiner noted the Veteran’s STRs showed a history of sarcoidosis affecting the lungs and GI tract that resolved after steroid therapy. The examiner next found that in October 2012 the laboratory testing found positive hepatitis B and diagnosed viral hepatitis B; the examiner also noted the Veteran reported a history of duodenal ulcer with severe upper and lower bleeding with blood transfusions. However, the examiner opined that there was no medical evidence provided to support the Veteran having or being diagnosed with hepatitis B during or within a year of separation from service. In January 2020, another VA addendum opinion was provided. The examiner noted that the Veteran “never manifested GI or liver symptoms in service, by his own admission” and did not suffer any liver or GI impairments due to his sarcoidosis in service. The examiner next noted there was no manifestation of hepatitis, viral or other, during the Veteran’s time in service; the examiner notes the STRs showed the Veteran with sarcoidosis that was treated and resolved, but did not show any mention of viral hepatitis B or any symptoms manifest of a liver disorder. The examiner noted in 2001 the Veteran reported that 10 years prior he was not able to donate blood due to hepatitis; the examiner found no symptoms of liver disease was documented at this visit. The examiner found the claims file did no include any evidence for chronic liver disease over time and noted that laboratory results showed generally normal levels throughout the years during and after service, with only slightly elevated levels “off and on…which is not definitive for or even necessarily suggestive of previous Hepatitis B viral infection.” The examiner stated that although the Veteran’s medical record showed “chronic hepatitis B infection” on the VA problem list, the examiner noted that those entries were made prior to the Veteran’s confirmed hepatitis B laboratory findings in 2011. The examiner noted that the Veteran’s hepatitis B viral loads were found to be low in 2011 and not detectable in 2014, therefore the examiner found the Veteran did not have verified evidence for chronic hepatitis B viral infection. The examiner noted that VA infectious disease found in 2011 the Veteran’s hepatitis B serology findings “represent PAST EXPOSURE to hepatitis B, not current or chronic infection.” As such, the examiner opined the Veteran did not have a liver condition in service due to hepatitis B and no evidence of hepatitis B infection until years after his service, unrelated to his active duty service. The examiner next found no evidence of chronic hepatitis B viral infection during service. The examiner noted testing done in 2011, 2014, and 2018 confirmed prior exposure to infection with Hepatitis B but did not establish chronicity. The examiner found the Veteran with evidence of a prior Hepatitis B infection in 2010 to 2011 but noted the low viral load at the time was insufficient to establish a chronic hepatitis B infection; the examiner further stated that there was no documentation to support a chronic hepatitis B viral infection since 2010, and no testing was done to confirm a chronic or active hepatitis B infection prior to 2010. The examiner noted the Veteran’s lay statements regarding hepatitis B infection were not consistent, noting the Veteran had initially reported exposure to hepatitis B in service but later reporting no known exposure to hepatitis B. The examiner also noted the Veteran had given different dates from 1970, 1971, and 1990s as possible date for his initial diagnosis for hepatitis B; but the examiner notes that the record is silent until 2010 or 2011 for a confirmation of prior exposure. As such, the examiner found the Veteran’s lay statements to be unreliable. The examiner found the Veteran with no evidence of a functional liver impairment or other impairment due to current or prior hepatitis B infection. The examiner found the record did not show “any persistence of liver function test abnormalities or recurrent jaundice, edema, liver enlargement, or other signs/symptoms of chronic liver disease.” The examiner noted the Veteran has never exhibited any chronic functional impairment of the liver, “even in service when the Veteran did have evidence for sarcoidosis involving the liver”. The examiner noted the Veteran’s liver function tests have remained normal or near normal long term, therefore the examiner did not find liver impairment to include as due to the history of sarcoidosis and previous hepatitis B infection. As the January 2020 VA examiner provided a review and examination of the Veteran’s claims file, made references to pertinent past records and statements consistent with the evidence of record, the Board finds that the VA examination report and medical records documenting the nature and extent of his hepatitis B, to be the most probative evidence of record. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board acknowledges the Veteran’s assertions that his hepatitis B was related to his military service. Certainly, he is competent to describe experiencing symptoms in service and recurring thereafter. Indeed, treatment records corroborate at least to some extent the Veteran’s history of symptoms. Nevertheless, a lay person, the Veteran does not have the training or expertise to render a competent opinion which is more probative than the VA examiner’s opinion on this issue, as this is a medical determination that is complex. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994)). Here, the January 2020 VA examiner considered the in-service clinical findings and the Veteran’s report of symptomatology. The examiner still found that it was unlikely that the Veteran’s in-service injury was related to any current disability. The Board finds that the Veteran’s opinion is outweighed by the competent opinions of the VA examiner. See id. ; see also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Furthermore, the Board notes that review of the claims record show several inconsistencies in the Veteran’s reported history and symptoms of his claimed disability. Such inconsistencies include the Veteran’s statements in in May 2018 that the onset of his hepatitis B symptoms was in 1960 conflicting with his July 2011 statement that he was discovered with hepatitis B as later as 1971; and his February 2013 statement that he was exposed to hepatitis B while on active duty conflicting with his September 2010 infections disease report where the Veteran denied coming into contact with hepatitis B. Given the inconsistencies of the statements made by the Veteran compared to the findings in the claims record, the Board affords the Veteran’s statements less probative weight and outweighed by VA examinations of record performed by professionals. After review of the evidence of record, the Board finds that the competent evidence on record is against a finding of service connection for hepatitis B. The Veteran’s STRs show no complaints, treatments or diagnosis for hepatitis B or for residuals or functional impairments of the liver or relating to hepatitis B. Review of the Veteran’s medical treatment record shows the Veteran complained of or received treatment for hepatitis B; however, the earliest documentation of hepatitis B was in 2010, years after the Veteran’s separation from service. The Veteran in December 2001 reported that 10 years prior he was refused from donating blood due to hepatitis; however, this would put the year at 1991, which would still be years from his separation from service. The Veteran has reported receiving blood transfusions in 1999 to treat bleeding of the GI; however the Veteran has not provided records of this treatment to be associated with the record and since then has not clarified or discussed how this would cause or result in hepatitis B. The January 2020 VA opinion considered the Veteran’s report of symptoms during intervening years but provided reasoned analysis of the case to support their opinion that the Veteran’s current hepatitis B was not related to or the Veteran’s active duty service and that there was no residual or functional impairment resulting from or relating to the Veteran’s hepatitis B infection. The Veteran has not submitted any other opinions to be weighed against the VA examiner’s opinion. As such, the Board finds that the weight of the competent and probative evidence is against a finding of service connection for the Veteran’s hepatitis B. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Yang, 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.