Citation Nr: 21025122 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 17-47 024 DATE: April 27, 2021 ORDER Entitlement to service connection for hepatitis C is denied. FINDING OF FACT Hepatitis C was not manifest in service and is not otherwise attributable to service. CONCLUSION OF LAW The criteria for entitlement to service connection for hepatitis C have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from January1980 to January 1983. This case is before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 Regional Office (RO) rating decision. In that rating decision, the RO denied entitlement to service connection for hepatitis C. The Board remanded the appeal for additional development in November 2020. Since the November 2020 Board remand, the remand requirements have been substantially complied. Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131 (2012). To establish a right to compensation for a present disability, a Veteran must show: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); see also Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). HEPATITIS C The Veteran contends that service connection is warranted for hepatitis C. Specifically the Veteran contends that his Hepatitis C began in-service and is attributed to service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not caused by an in-service injury or disease. The Veteran has a current diagnosis of hepatitis C. The Veteran contends that his hepatitis C began during service and is related to service. Service treatment records (STRs) are associated with the claims file. As discussed further below STR’s document a single exposure to hepatitis; although it does not indicate what kind of hepatitis and gives only a date range of the exposure. The STR’s do not include any specific complaints or diagnoses of hepatitis C during service. In a January 1980 dental health questionnaire, the Veteran denied having diabetes or jaundice and denied having hepatitis. See April 2015 STR-Medical, p.26. An April 1981 STR noted, the Veteran was exposed to hepatitis on Board the ship Constellation between March 1st, 1981 to April 7th, 1981. Although, the type of hepatitis is not noted, the clinician stated the Veteran received 2.0 cc of gamma globulin intramuscularly as a prophylactic measure. The Veteran was also advised that the immunization did not guarantee complete immunity against hepatitis. The clinician also noted that the Veteran was advised of the symptoms of early onset of hepatitis. See May 2012 STR-Medical-Photocopy, p.3. In a December 1981 STR, a clinician diagnosed the Veteran with the sexually transmitted disease gonorrhea. The Veteran was seen on the USS constellation and reported that his last sexual contact was on December 1, 1981. See April 2015 STR-Medical, p.15. In a May 1987 report of medical reenlistment examination, the clinical evaluation revealed the Veteran had a tattoo. In addition, in the summary of defects and diagnosis section, the Veteran was determined to be a “healthy individual”. There was no mention of any kind of hepatitis during this examination. See April 2015 STR-Medical, p.23-24. In a March 2011 VA treatment note, the Veteran reported that when he was in prison, he was told that he had hepatitis C and asked for treatment. The clinician’s assessment was that there were high liver enzymes and hepatitis C; that would require testing/ evaluation in 1-2 months. See May 2013 Capri, p.109-110. In a March 2011 hepatology consultation note, a clinician noted that the Veteran was seen for an evaluation of chronic hepatitis C. The Veteran reported that he was diagnosed with hepatitis C in 2010, while in prison during a routine screening. The Veteran indicated that he received a hepatitis a/b vaccine while in prison, he denied any knowledge of liver disease; jaundice or signs/ symptoms of acute or chronic hepatitis. The Veteran stated that he was not treated for the condition in prison since he was only there for 3 months and was advised to get treatment once released. The Veteran had a history of tobacco use, and recreational drug use. The Veteran noted that he drank about a 6 pack a month for over 30 days; he denied history of alcohol (etoh) abuse; but noted that he used cocaine and meth from age 28-40. He also stated he snorted drugs from age 28-40 but denied occupational exposures; and high-risk sexual partners; blood transfusions. However, the Veteran did indicate the year he was diagnosed with hepatitis C he received 2 tattoos in prison, and he was given a tattoo by a friend in 1985. See June 2011 Capri, p.5-6. In a November 2012 VA treatment note, the Veteran reported that he last drank alcohol and used cocaine in 2004. See August 2017 C&P Exam, p.4. In a September 2016 VA treatment note, the Veteran was positive for cocaine and was not a candidate for hepatitis C treatment at that time, due to the recent substance abuse. See August 2017 C&P Exam, p.5. In August 2017, the Veteran was afforded a VA examination. The examiner reviewed the claims file; considered the Veteran’s accounts and conducted an evaluation. The examiner found that it was less likely than not that the Veteran had chronic hepatitis C in or caused by the hepatitis exposure on 4/07/1981. The rationale was that there was a single note in the Veteran’s STR’s indicating that he was exposed to hepatitis, however the exact date of exposure was not indicated or the type of hepatitis the Veteran was exposed to. The examiner indicated that hepatitis B and C were associated with infected body fluids and hepatitis A was associated with fecal/ oral transmission; and while in-service the Veteran had an administrative job, which would have made it unlikely he was exposed to blood or other bodily fluids routinely. And if the Veteran had accidentally been exposed to blood from an infected individual, it would have been highly likely that there would have been documentation of the exposure event and follow up testing while in-service. The examiner also noted during the date range of exposure the Veteran was on a ship, which included confinement and crowded conditions that could increase the risk of hepatitis A transmission. In addition, the examiner noted that the Veteran had risk factors for hepatitis C, after the military. He reported drug use from age 28-40 (onset 1988), tattoos in 1985, and 2010. Also, the Veteran was still using cocaine in 2016, which prevented him from receiving hepatitis C treatment. In September 2017, the Veteran submitted a form 9. The Veteran reported that he served on the USS Constellation, where he traveled to Kenya and was exposed to hepatitis C. The Veteran stated that his service treatment records indicated that his exposure may not affect him during the time he served but could affect him later in life. The Veteran stated that he had a diagnosis of hepatitis C. See September 2017 Form 9. In February 2021, the Veteran was afforded another hepatitis C examination. The examiner reviewed the claims file; considered the Veteran’s accounts and conducted an evaluation. The Veteran reported that he was diagnosed with hepatitis C in 2010 while in prison and received the hepatitis a/b vaccine at that time. The Veteran had a diagnosis of cirrhosis and denied a history of gastrointestinal bleeding. The Veteran stated he had an occasional drink since January 2019 and previously drank a 6 pack or less a month. He had a history of intermittent binge drinking, from the age 28-40 he used cocaine, meth, and snorted drugs. He denied high risk sexual partners, occupational exposures, and blood transfusions. The Veteran did report 3 tattoos, he had 2 in 2010 while in prison and 1 in 1985. The examiner found that it was less likely than not that hepatitis C was incurred in or caused by the claimed in-service injury, event, or illness. The examiner based his rationale off of the Veteran’s medical record (including the August 2017 medical opinion), off of medical literature and the historical context of the case. The examiner indicated that the August 2017 medical opinion was overall excellent and thorough. The examiner noted that the Veteran was competent to provide information indicating that he was exposed to hepatitis C while stationed in Kenya, and that, that information was not inconsistent with the Veteran’s service treatment records but offered more details. The examiner noted that the Veteran reported that he was told in-service he had been exposed to hepatitis C, but indicated if that had been true repeat testing would have likely been done and if there had been a known exposure event it would have been more likely to have been specifically documented than a month long range given. Furthermore, the examiner noted that if the Veteran’s job in-service was coming into contact with body fluids and exposure was discovered later, then it would be possible that only a range could be given unless a known exposure had been identified. In addition, the examiner stated that hepatitis C was not even known by its name until 1989 (after the Veteran left service), so in 1981 when the Veteran was exposed hepatitis, hepatitis C was an unknown disease entity. And was only known as non-A or non-B hepatitis, which meant that a clinician told him, he was exposed to hepatitis C was false. The examiner noted that the Veteran’s unprotected intercourse leading to gonorrhea could have been evidence of risk factors leading to hepatitis C but the treatment the Veteran received in April 1981 would not have been the kind of medical treatment given at that time. And at the time sexual intercourse was understood to not be a primary transmission of hepatitis C. The examiner stated that the Veteran’s cocaine, meth, and drug use (snorting drugs) from 28-40, as well as his incarceration with tattoos were significant risk factors for hepatitis C transmission, greater than sporadic high-risk sexual intercourse leading to gonorrhea in-service. However, the examiner did note that length of time elapsed did not prove or disprove time of infection, since chronic indolent hepatitis C infection was possible. Also, the examiner noted that the Veteran could have contracted hepatitis C from the 1981 gamma globulin injection he received. However, he stated that possible transmission was more likely than not the reported twelve years of intravenous and intranasal drug use, as well as incarceration with tattoos, which all occurred after service. After consideration of all the evidence of record the Board finds that the preponderance of the evidence is against finding that service connection for hepatitis C is warranted. The Board concludes that service connection is not warranted as the Veteran's current hepatitis C is not related to service. The Veteran's statements regarding his current symptoms and the in-service exposure to hepatitis are credible. While the Veteran reports that his current hepatitis C is related to service the record does not reflect that he has the requisite training or expertise to offer a medical opinion linking a current disability to service decades earlier and he is not competent to provide a nexus opinion in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board notes that the medical evidence is more probative and credible than the lay opinions of record. Based on the evidence of record there is no competent and credible evidence that the Veteran's hepatitis C began in-service or is related to service. Medical treatment records note a diagnosis of hepatitis C in 2010 while the Veteran was in prison, which was over 20 years after his separation from service. Further STRs at a reenlistment note a normal clinical evaluation and that the Veteran was a healthy individual. As noted above this claim shall be rated based on the evidence of record, and there is no competent and credible evidence that the Veteran's hepatitis C is related to service. As such the Board finds that service connection is not warranted as there is no relationship between the Veteran's current hepatitis C and service. As noted above, the sole evidence supporting the Veteran's claim of contracting hepatitis C while in service is one single documentation in service, and his assertions. The single documentation does not note what type of hepatitis he was exposed too and does not indicate that he had any type of hepatitis at the time. In that regard, he certainly can attest to factual matters of which he has first-hand knowledge, and his assertions in that regard are entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). In addition, the Board recognizes that lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Given the Veteran's lack of demonstrated medical expertise, the overall low probability of contracting hepatitis C by the means claimed by the Veteran as opposed to via other means, and the complexity of linking his exposure of being of the ship USS Constellation and traveling to Kenya, the Board concludes that in this case his statements regarding any such link between the in-service experiences and contracting hepatitis C to be of little probative weight. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (explaining in footnote 4 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). Further, the Veteran's contentions of transmission of the hepatitis C virus is not supported by any evidence of record and warrant's low probative weight. The Board gives high probative weight to the February 2021 VA examiner who reviewed the claims file, conducted an evaluation, and gave an adequate medical opinion. The examiner stated that it was less likely than not the Veteran’s hepatitis C was related to his time in service; she concluded that possible transmission was less likely than the reported twelve years of intravenous and intranasal drug use, as well as incarceration with tattoos, which all occurred after service. From the review of the Veteran’s claim file, it is not shown that he had intramuscular contact with any blood products such as to transmit the virus. Further, in addition to tattoos, the Veteran has been incarcerated after service and used drugs which are known risk factors of hepatitis C. In summary, the Board concludes that the preponderance of the evidence is against the claim for service connection, and the benefit of the doubt rule enunciated in 38 U.S.C. § 5107(b) is not for application. There is not an approximate balance of evidence. See 38 U.S.C. § 5107(b); see generally Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). R. Erdheim Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E.Long-Ellis, 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.