Citation Nr: 21023883 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 14-32 493 DATE: April 21, 2021 ORDER Entitlement to service connection for hepatitis C is denied. FINDING OF FACT The Veteran’s hepatitis C was not manifested in service or for many years thereafter; and is not shown to be etiologically related to his service. CONCLUSION OF LAW Service connection for hepatitis C is not warranted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from June 1970 to August 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision. In October 2015, a Travel Board hearing was held before the undersigned, a transcript is in the record. In March 2018 and March 2020 this claim and a claim of service connection for hepatitis B were remanded for development. An October 2020 rating decision granted service connection for hepatitis B, assigning a disability rating and an effective date for the award, resolving the appeal in that matter. Entitlement to service connection for hepatitis C is denied. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To substantiate a claim of service connection, there must be evidence of (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A disease first diagnosed after discharge may be service connected if all the evidence establishes that it was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran asserts that he contracted hepatitis C from being exposed to blood products in a surgical procedure and sexual contact in service. See Hearing Transcript pg. 12, 14. The Veteran’s STRs are silent for complaints, findings, treatment, or diagnosis of hepatitis. On June 1970 service enlistment examination clinical evaluation, his abdomen and viscera were noted to be normal. On August 1973 release from active duty, his abdomen and viscera were “normal”; a bilateral hernia scar was noted. A July 2002 VA treatment record notes that an HCVAb test was ordered to be drawn that day for a hepatitis C risk assessment. A June 2003 VA treatment record notes that on a hepatitis C risk assessment, the Veteran was found to have no risk factors for hepatitis C. A June 2008 VA treatment record notes that hepatitis B antigen status was diagnosed that month. VA treatment records further document that the Veteran’s hepatitis C was diagnosed in September 2013. The treatment records also show that he has received treatment for hepatitis C from the initial diagnosis to the present. On July 2019 VA examination, of the Veteran, following interview and examination of the Veteran and review of his claims file, the examiner opined that he has a diagnosis of hepatitis C that less likely than not was incurred in or caused by service. The examiner explained, The Veteran has the diagnosis of hepatitis C. The Veteran denies any risk factors for exposure to hepatitis B other than surgery (orchiectomy) in 1971 when in service. The OR records show that no transfusion of blood product was given to the Veteran. It is highly unlikely that the Veteran contracted hepatitis B during the surgery. The Veteran had no symptoms of hepatitis when in service. The diagnosis of hepatitis was made after separation from service. Pursuant to the March 2020 Board remand, the examiner was asked, in part, to identify the most likely etiology for the Veteran’s hepatitis C. The examiner was asked to specifically address whether it is at least as likely as not that the Veteran’s hepatitis C resulted from the alleged risk factors to which he was exposed in service (blood products in a surgical procedure and sexual contact), or whether it is more likely that the hepatitis C resulted from a post-service exposure. If a post-service risk factor was determined to be the more likely etiology for the Veteran’s hepatitis C, the examiner was asked to identify such risk factor(s), and the evidence of record that supports that conclusion. In an April 2020 VA addendum opinion, the examiner opined it is at least as likely as not that the Veteran’s hepatitis B and hepatitis C resulted from a risk factor to which he was exposed in service (blood products in a surgical procedure and sexual contact). The provider stated, The Veteran related that he was diagnosed with hepatitis B when on active duty. The Veteran denies having any known risk factors for [hepatitis B] and [hepatitis C]. No [IVDA], tattooing, [or] multiple sexual partners. As the Veteran was diagnosed with [hepatitis B] when in service, and [hepatitis C] was not diagnosable at the time of the Veteran’s military service and [hepatitis C] may not result in liver disease for decades, and [hepatitis B] and [hepatitis C] have similar risk factors for transmission, it is likely that the Veteran developed the claimed hepatitis B and hepatitis C conditions when in service. In September 2020, the RO requested another addendum opinion, finding that the April 2020 VA examiner’s opinion was inconsistent with his prior July 2019 opinion [regarding an in-service diagnosis of hepatitis B]. That same month a VA consulting provider opined, It is less likely than not that the Veteran’s hepatitis C was incurred in or caused by (the) risk factor to which he was exposed (sexual contact) during service. The Veteran had negative tests for hepatitis C in 2002 and 2008. He had a positive test for hepatitis C in 2013. The Veteran incurred hepatitis C between 2008 and 2013. The RO requested a final addendum opinion as the September 2020 VA examiner had not been asked to identify the post-service etiology of the Veteran’s hepatitis C pursuant to the March 2020 Board remand instructions. In an October 2020 addendum opinion the consulting provider stated, The etiology of the Veteran’s hepatitis C remains cryptic. The Veteran denies having any risk factor for the development of hepatitis C after service. The Veteran has been treated in the Hepatitis Clinic at CMC VAMC since 2013, and the Hepatitis Clinic has been unable to determine the cause of the hepatitis C. Without speculation, I cannot render an opinion [regarding] the likely etiology for the Veteran’s hepatitis B or Hepatitis C. It is not in dispute that the Veteran has hepatitis C. However, the probative (medical, as it is a medical question), evidence in the matter shows that he was not seen or treated for hepatitis C in service. His post-service treatment records do not show a positive hepatitis C test until 2013 (approximately 40 years after service). The overall record does not show or suggest that the Veteran’s current hepatitis C is, or may be, due to an event or risk factor in service. Whether a current hepatitis C is etiologically related to remote service/a risk factor noted therein is a medical question. It requires medical expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Veteran does not profess to have any medical expertise in infectious diseases or their etiology, and does not cite to supporting medical opinion or treatise. There is conflicting medical opinion evidence in the record regarding whether the Veteran’s hepatitis C was incurred in service. In July 2020 a VA provider opined that the hepatitis C was as likely as not incurred in service, citing to the premises that the Veteran reported exposure to blood products, and that he received a diagnosis of hepatitis B, in service, and that the risk factors for acquiring hepatitis B and hepatitis C are similar. However, the opinion reflects a less than complete familiarity with the entire factual record. The provider did not address the July 2019 observation that the Veteran’s surgery in service was not shown to have involved blood transfusion or that hepatitis B was manifested or diagnosed in service; the provider also did not address the observations by the subsequent (September 2020) consulting VA provider that the Veteran’s 2002 and 2008 tests for hepatitis C were negative, and that the hepatitis C was therefore likely incurred between 2008 and 2013. Therefore, the opinion merits lesser probative value, and is not persuasive. The September 2020 VA examiner opined that the Veteran’s current hepatitis C is less likely than not related to an injury, disease, event, or risk factor in service. The examiner is a medical professional with appropriate expertise and the opinion is probative evidence in this matter; it reflects familiarity with complete accurate medical history and includes rationale that cites to supporting factual data (that the hepatitis C was acquired sometime after the two negative tests for hepatitis C in 2002 and 2008 and before its diagnosis in 2013). The Board finds the opinion to be the most probative evidence in the record regarding the etiology of the hepatitis C, and persuasive. The Board acknowledges that the October 2020 VA examiner declined to identify the specific postservice etiology of the Veteran’s hepatitis C (beyond indicating that it was likely one after the 2008 negative test) because it would require resort to mere speculation. However, the Board finds that such is not critical to the nexus question that is dispositive in this matter, as it is clear the Veteran’s hepatitis C was acquired many decades after service. Although the Board has no reason to question the Veteran’s sincerity in his belief that his hepatitis C is related to service, he is a layperson and lacks the requisite expertise (and does not cite to supporting factual data, treatise evidence, or adequately probative medical opinion); therefore, his opinion in the matter is not competent (and probative) evidence. Considering the foregoing, the Board finds that the preponderance of the evidence is against this claim, and that the appeal seeking service connection for hepatitis C must be denied. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Griffith 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.