Citation Nr: 21024038 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 16-00 227 DATE: April 21, 2021 ORDER Service connection for a liver disorder, to include Hepatitis B, is denied. FINDING OF FACT The Veteran’s claimed Hepatitis B is not shown to be present in service or until many years thereafter and is not otherwise etiologically related to the Veteran’s active service. CONCLUSION OF LAW The criteria for service connection for a liver disorder, to include Hepatitis B, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1984 to April 1989. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2011 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned in April 2019. This case was remanded in May 2019 for additional development. In the Board’s May 2019 decision, the matter of service connection for drug and alcohol independence was also remanded for a VA examination. Subsequently, in a January 2021 rating decision, the Veteran was granted a 100 percent evaluation for posttraumatic stress disorder (PTSD) and depression with drug and alcohol dependence in early remission, effective December 23, 2009. Service Connection Service connection may be granted for a disability resulting in a disease or injury that is incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 U.S.C. § 3.303. To establish service connection for the claimed disorder, the following criteria must be met: (1) evidence of a current disability; (2) evidence of an in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and current disability. See 38 C.F.R. § 3.303; see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). Secondary service connection may be granted for a disability that is proximately due to, the result of, or aggravated by an established service-connected disability. 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995). Service connection for a liver disorder, to include Hepatitis B The Veteran asserts that he is entitled to service connection for hepatitis B, that may be related to service. Specifically, the Veteran asserts that he was subjected to the same injection apparatus that was being used on all of the inductees when he was inducted in January 194, and it may have exposed him to the virus at the time. See June 2007 Statement in Support of Claim. The Veteran further contends that he experienced flu-like symptoms in early 1993, alongside headaches and jaundice which prompted him to seek medical attention; he was informed that his liver enzyme levels were extremely elevated. After further tests, he was informed he had been exposed to the hepatitis B virus, which was active at the time. Id. The Veteran’s service treatment records show no evidence of any complaints, treatment, or diagnosis of hepatitis B or any other liver-related conditions. At his Board hearing in April 2019, the Veteran’s testimony again reiterated that he was not told the etiology of his hepatitis B diagnosis but believed the inoculations he received in active duty service were the cause of his condition. See April 2019 Hearing Transcript. As Veteran believed the air gun injections he received caused his hepatitis C virus, he stated that he was also had a drinking problem at the time, but he did not drink to the extent that he thought he would damage his liver. Id. In May 2019, the Board held that Veteran had been previously diagnosed with hepatitis B but has not been provided a VA examination for a diagnosis of his condition along with any liver-related disorder. The Board remanded the claim for an examination with the opportunity to obtain responsive etiological opinions. The remand directives directed the examiner to address direct service connection as well as secondary service connection caused by Veteran’s PTSD/depression and aggravation by any of his service-connected conditions. See May 2019 BVA Decision. In a December 2019 VA examination for Hepatitis and other Liver Conditions, the Veteran’s medical history noted he was never treated for hepatitis B, while the first documentation found for hepatitis B is in a problem list from 1995. The Veteran was not found to have any signs or symptoms attributable to chronic or infectious liver disease. The VA examiner held that the STRS do not show diagnosis or treatment for or complaints consistent with a diagnosis of hepatitis B. Post separation medical records noted a diagnosis of the condition in 1995, 6 years post separation. The Veteran also has a long history of substance abuse to include alcohol and cocaine use but denies intravenous drug abuse. Substance abuse in and of itself is a risk factor for contracting hepatitis B. Veteran also had a positive history for STDs, another risk factor for contracting hepatitis B. The VA examiner opined that the Veteran’s claimed hepatitis B was less likely than not incurred in or caused by his active duty service. As the December 2019 VA examination did not have a currently diagnosed liver condition as laboratory results were normal, and a review of the laboratory history did not show that the Veteran’s hepatitis B diagnosis was confirmed despite it showing on his problem list, the Veteran was afforded an additional VA examination in November 2020. The results of the November 2020 VA Hepatitis & Other Liver Conditions Examination showed no objective evidence of a chronic diagnosed liver condition to include hepatitis B or cirrhosis. Veteran’s laboratory results were normal and antibody testing was non-reactive. The medical evidence failed to show that Veteran has been objectively diagnosed with a chronic liver condition, to include hepatitis B. The VA examiner’s medical opinions regarding direct and secondary service connection to include aggravation held that the Veteran’s claimed hepatitis B was less likely than not caused by active duty nor was it proximately due to his drug and alcohol dependance and PTSD/depression as his condition has resolved and there is no pathology to render a diagnosis. See November 2020 C&P Exam. The most probative evidence shows that the Veteran does not have a current diagnosis of hepatitis B. No competent medical diagnosis of hepatitis B is of record. Hepatitis B is a complex disability for which lay evidence is not competent. See Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The evidence shows that the Veteran does not have a current diagnosis of hepatitis B nor functional impairment from that condition. “Functional impairment,” the Federal Circuit noted, is defined as the inability of the body or a constituent part of it “‘to function under the ordinary conditions of daily life including employment.’” Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The current disability requirement for a service connection claim is satisfied if the claimant has a disability at the time the claim is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). Additionally, when the record contains a recent diagnosis of disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Here, the most probative evidence of record demonstrates that the Veteran does not have a diagnosis of hepatitis B. In sum, the Board finds that the most probative evidence fails to link the Veteran’s claimed hepatitis B to service. Accordingly, the benefit of the doubt doctrine does not apply, and service connection for hepatitis B is not warranted. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Zarar Ahmed, 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.