Citation Nr: 21030846 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 16-02 777 DATE: May 19, 2021 ORDER Service connection for hepatitis C is denied. Service connection for residuals of a laparoscopic hernia repair, to include as secondary to hepatitis C, is denied. Service connection for post-traumatic stress disorder (PTSD), to include as secondary to hepatitis C, is denied. Service connection for liver cancer, to include as secondary to hepatitis C, is denied. FINDINGS OF FACT 1. The most probative evidence of record weighs against a conclusion that the Veteran has hepatitis C due to service. 2. As service connection is not warranted for hepatitis C, the claims for entitlement to service connection for a laparoscopic hernia repair, PTSD, and liver cancer as secondary to hepatitis C are without legal merit. 3. There is no evidence in the record indicating that a laparoscopic hernia repair, PTSD, or liver cancer may have been incurred in service; liver cancer was not shown within one year of separation from service. CONCLUSIONS OF LAW 1. The criteria for service connection for hepatitis C have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2020). 2. The criteria for service connection for a laparoscopic hernia repair have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2020). 3. The criteria for service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f), 3.310 (2020). 4. The criteria for service connection for liver cancer have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1969 to July 1971. This case was remanded by the Board of Veterans' Appeals (Board) in April 2019 and August 2020 and the development requested in the most recent remand has been substantially accomplished. The Veteran testified at a December 2018 videoconference hearing before the undersigned Veterans Law Judge and a copy of the transcript has been associated with the claims file. I. Legal Criteria When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims (Court) held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § § 3.303(d). Where a Veteran served for at least 90 days during a period of war or after and manifests certain chronic diseases, including cancerous tumors, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. § §§ 3.307, 3.309. Alternatively, service connection may be established under 38 C.F.R. § § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. The United States Court of Appeals for the Federal Circuit clarified that the law providing for awards of service connection on the basis of continuity of symptomatology is limited to "chronic" diseases listed under 38 C.F.R. § 3.309(a), such as cancerous tumors. Service connection for PTSD requires medical evidence establishing a diagnosis of the condition, credible supporting evidence that the claimed in-service stressor occurred, and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor, is required. 38 C.F.R. § 3.304(f). A disability which is proximately due to or the result of a service-connected disease shall be service connected. 38 C.F.R. § 3.310(a). A claimant is also entitled to service connection on a secondary basis when it is shown that a service-connected disability has aggravated a nonservice-connected disability. 38 C.F.R. § 3.310(b). II. Analysis The Veteran, to include in sworn testimony at the December 2018 hearing before the undersigned, has asserted that he developed hepatitis C due to an unsterilized gun injection coincident with being vaccinated during service. His claims for service connection for a laparoscopic hernia repair, PTSD, and liver cancer rest on the assertion that these conditions were caused by hepatitis C The service treatment reports (STRs), to include the reports from the June 1971 separation examination, are silent for hepatitis C and the other conditions for which service connection is claimed. Supporting the Veteran's assertion that hepatitis C was incurred in service is a December 2015 statement from a private physician who indicated that "based on a reasonable degree of medical certainty," the Veteran could have contracted hepatitis C as result of an unsterilized gun injection during service. A contrary opinion was rendered following a September 2019 VA examination. This opinion was based on the fact that STRs did not reflect evidence that the Veteran received a vaccination through an unsanitary air gun and the fact that the Veteran had had risk factors of intravenous drug use and of getting a tattoo. This opinion did not acknowledge the Veteran's competent report of a history of receiving a vaccination in service from an unsterilized air gun; as such, the August 2020 Board remand found this opinion to be inadequate. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Therefore, the August 2020 Board remand requested that the Veteran be afforded an addendum opinion as follows: The examiner is asked to offer an opinion as to whether it is at least as likely as not that the Veteran's hepatitis C had its onset in or is otherwise related to his service, including whether the Veteran's hepatitis C was a result of an unsterilized vaccination gun injection during service? In rendering an opinion, the examiner is also asked to specifically acknowledge that regarding the risk factors for hepatitis C of IV drug use and a tattoo identified by the September 2019 VA examiner that the Veteran has indicated in his hearing testimony that he never shared needles with anyone else as he was able to obtain clean needles and that he went to a reputable tattoo shop. The requested opiniondocumented to have been based on a review of the electronic claims file and consideration of the Veteran's lay assertions with regard to an in-service onset of hepatis C as set forth in the above remand instructionswas completed by a VA physician in November 2020. This physician concluded that it was less likely than not that the Veteran's hepatitis C had its onset in service or was otherwise related to service, to include as a result of an unsterilized vaccination gun injection therein. The rationale for the opinion was as follows. I concur with [the September 2019] opinion by [a VA physician], [that] although there is a small possibility of infection with the gun injection, it is unlikely. It is much more likely that this [V]eteran contacted the disease by his many years of IV drug use. He can testify that he went to a reputable tattoo shop, but [his] 20 year[] history of IV drug use [resulted in] the risk of infection escalat[ing] with every injection. In contrast to the positive opinion rendered in December 2015, which contained no if scant supporting rationale and is not documented to have been based on the clinical record, the November 2020 opinion is supported by rationale and is otherwise documented have been based on a review of the claims file, to include the Veteran's lay assertions with respect to an unsanitary in-service inoculation. In short therefore, the undersigned finds the November 2020 opinion to be more probative than the December 2015 opinion with respect to the question of the whether the Veteran developed hepatitis C due to an unsanitary in-service inoculation. To the extent the assertions of the Veteran and his attorney are advanced in an attempt to establish that the Veteran has hepatis C as a result of C due to an unsanitary in-service inoculation, such complex medical matters are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As neither the Veteran nor his attorney are shown to have the appropriate training and expertise, neither are competent to render a persuasive opinion as to such matters. While the Veteran is competent to describe any lay observable symptoms associated with hepatis C since service, the undersigned finds the silent STRs for hepatitis C and the more probative of the opinions with respect to the question of the whether the Veteran developed hepatitis C due to an unsanitary in-service inoculation to be outweigh the lay assertions made in connection with the claim for service connection for hepatitis C, and that these facts weigh against a finding of continuity of relevant symptoms associated with this condition since service. Given all of the above, the Board finds that the preponderance of the evidence is against the claim for service connection for hepatis C. As such, this claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. In light of the denial of service connection for hepatitis C, the claims for entitlement to service connection for a laparoscopic hernia repair, PTSD, and liver cancer as secondary to hepatitis C are without legal merit. There being no evidence in the record indicating that a laparoscopic hernia repair, PTSD, or liver cancer may have been incurred in service, VA examinations or opinions addressing these claims are not necessary to fulfill the duty to assist. Finally, as liver cancer was not shown to a compensable degree within one year of separation from service, service connection for such on the basis of chronic disease, to include by way of continuity of symptomatology, is not warranted. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Andrew Ahlberg, 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.