Citation Nr: 21031125 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 18-14 145A DATE: May 20, 2021 ORDER Entitlement to service connection for hepatitis C and its residuals is denied. FINDING OF FACT The Veteran's hepatitis C and its residuals were not shown in service or for many years thereafter and are not otherwise etiologically related to active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for hepatitis C and its residuals have not been met. 38 U.S.C. §§ 1110, 1131, 5103; 38 C.F.R. §§ 3.102, 3.159. 3.301, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from April 1972 to June 1975. This matter was previously denied by the Board of Veterans' Appeals (Board) in February 2020 and the Veteran timely appealed to the Court of Appeals for Veterans Claims (the Court). In a December 2020 Joint Motion for Remand, the Court remanded the matter for further adjudication after it was determined that the Board provided inadequate reasons and bases for its denial. The matter is now before the Board for further appellate consideration. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Service connection may not be granted if disability caused by service was the result of the Veteran's own willful misconduct or the result of his abuse of alcohol or drugs. 38 C.F.R. § 3.301(a). Entitlement to service connection for hepatitis C and its residuals The Veteran contends that his hepatitis C was caused by in-service immunizations, in-service removal of a ganglion cyst on his right wrist for which service connection is in effect, and in-service tooth extraction. Specifically, he contends that he may have been infected through the use of unsterile medical equipment during these procedures. After reviewing all the evidence of record, the Board determines that, while the Veteran was diagnosed with hepatitis C in January 2014 and has a current diagnosis of hepatic fibrosis, the preponderance of the evidence weighs against finding that these disorders began during service or are otherwise etiologically related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.303(a), 3.304; Holton v. Shinseki, 557 F.3d 1363. 1366 (Fed. Cir. 2009). First, the Veteran's service treatment records are silent as to any diagnosis for hepatitis C or related symptoms. While the Board acknowledges that this virus was not discovered until 1989, a blood test to detect it was not developed until 1992, and the Department of Defense did not begin testing recruits entering and exiting military service for hepatitis C until 2012, there is no evidence that the Veteran was exposed to common risk factors for hepatitis C in service as alleged by the Veteran throughout the record. Specifically, while the service treatment records contain evidence that the Veteran underwent several immunizations with an air gun, there is no evidence that this was performed using unclean or contaminated equipment. Furthermore, there is no evidence that the Veteran received a blood transfusion during either a December 1972 tooth extraction or a March 1974 ganglion cyst removal from his wrist, or that unsterile or infected equipment was used during these procedures. Furthermore, his June 1975 separation examination was normal, without any mention of symptoms related to hepatitis C or a history of receiving blood transfusions or being exposed to unsterile medical equipment. Additionally, the Veteran admitted to using intravenous and intranasal heroin and cocaine between 1972 and 1980, which overlaps with his periods of service. As indicated in the record, this is a risk factor for developing hepatitis C. While drug use is not noted in the Veteran's service treatment records, if he were infected while using intravenous drugs during service, service connection cannot be granted for abuse of drugs. See 38 C.F.R. § 3.101(a). Indeed, the medical records indicate that the Veteran was not diagnosed with hepatitis C until January 2014, which is approximately 39 years after separating from service. Therefore, continuity of symptoms has not been shown on a clinical basis. Furthermore, the Veteran does not allege that his symptoms have been continuous since service, but rather that he was infected in service and the virus was dormant until he was diagnosed nearly 40 years later. As such, continuity of symptoms is not shown based on either the Veteran's statements or the clinical evidence. Next, despite a lack of continuous symptoms, service connection may still be warranted if the evidence otherwise indicates a relationship between the Veteran's current disorder and his active duty service. However, the competent evidence fails to establish a nexus between active duty service and the Veteran's current hepatitis C and its residuals. The Veteran was initially diagnosed with hepatitis C in January 2014. Then a December 2016 ultrasound revealed he has hepatic fibrosis. Although June 2017 VA treatment records state that he was cured of hepatitis C, he continues to have fibrosis of the liver. VA examinations were scheduled to determine whether there is a nexus between the Veteran's current disorders and an event or injury that occurred in service. In a November 2017 VA examination report, the examiner opined that hepatitis C was at least as likely as not caused by the Veteran's drug use. The examiner noted that drug use was a major risk factor for hepatitis C. The drug use was the only risk factor for the disease which was documented in his records. As discussed, service connection cannot be granted for the Veteran's use of drugs. The Board notes that the Veteran submitted a statement in March 2014 stating that he did not use intravenous drug use during service. However, this is not consistent with other evidence in the record. VA treatment records from January 2014 state that the Veteran's risk factors for hepatitis C include intravenous drug use and intranasal cocaine use from 1970 to 1980, but that he has been clean and sober since. Furthermore, in a December 2014 Report of General Information, the Veteran stated that he used heroin and cocaine intravenously and admitted having a drug problem before discharge, for which he sought treatment. As such, the November 2017 VA examiner's opinion is consistent with the evidence of record, including the Veteran's statement. Additionally, the Veteran submitted an article in October 2016 that states hepatitis C is more prevalent in veterans than non-veterans and alleging several different causes, including jet/air gun injections for mass immunizations. The records indicate the Veteran received several immunizations during service. The examiner reviewed this evidence but opined that his hepatitis C was not caused by in-service immunizations because there was no evidence of any transmission of hepatitis C from air gun injectors. Again, the examiner noted that the Veteran's hepatitis C was caused by his drug use. The examiner examined the Veteran, reviewed the evidence of record, and considered the Veteran's statements before forming an opinion. Additionally, consistent with the examiner's statement, there is no evidence in the record that the Veteran was infected with hepatitis C by air gun injectors. As such, the Board finds these opinions highly probative. In March 2018, the Veteran submitted a copy of VA Fast Letter 04-13, which acknowledges that transmission of hepatitis C via air gun injectors "is biologically plausible," but states there is no scientific evidence documenting any such transmission. Based on the submitted evidence, an addendum opinion was provided in October 2019. The VA examiner opined that the Veteran's hepatitis C was not caused by service because there was no evidence of hepatitis while in service and he was not diagnosed with the disease until many years later. The examiner stated that vaccinations are not a risk factor for hepatitis C and the Veteran did not have any identified risk factors in service. Instead, his only documented risk factor for hepatitis C was inhalational use of heroin and cocaine. This is consistent with the VA Fast Letter 04-13 stating that there is no scientific evidence documenting hepatitis C transmission via air gun injectors. Additionally, the Veteran has asserted that he believes that he contracted hepatitis C during his in-service removal of a wrist ganglion cyst. The cyst removal is documented in the Veteran's service treatment records and he is service connected for right wrist sprain with osteoarthritis status-post ganglion cyst. The October 2019 VA medical opinion states that the Veteran could not have contracted hepatitis C during his in-service cyst removal because the procedure did not require a blood transfusion. The examiner further noted that to contract the disease, there must be exposure to contaminated blood. The examiner reviewed the evidence of record, including the articles submitted by the Veteran and his lay statements. The examiner's opinions are consistent with the lack of evidence in the record indicating that the Veteran was contaminated with hepatitis C via immunizations or ganglion cyst procedures because there was no evidence of blood transfusions or contaminated equipment noted in the record. As such, the Board finds these opinions highly probative. Next, and in specific response to the JMR, the Board notes the Veteran's belief that he contracted hepatitis C as a result of an in-service dental extraction. Service treatment records indicate the Veteran underwent a tooth extraction in December 1972. In his March 2019 VA Form 9, the Veteran indicated that he believes he may have contracted hepatitis C through blood exposure as a result of non-sterile dental instruments. Although he has submitted evidence that sharing and reusing dental equipment can result in the transmission of hepatitis C, the Veteran has provided no evidence that the dental equipment used in his tooth extraction was not sterile. The Board acknowledges that a VA examination or medical opinion has not been obtained concerning the Veteran's allegations that he was contaminated with hepatitis C during a tooth extraction in December 1972. In general, VA must provide a medical examination where there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability. McClendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). Despite his assertions, the Board considers the Veteran's theory of hepatitis C spread through dental tools to be far too speculative without any evidence to support his contention. Indeed, while his dental surgery occurred at a time prior to when hepatitis C was medically identified, the use of sterilized instruments during dental procedures was (and is) so universal that the spread of infectious disease would only be reasonably likely in cases where there was gross negligence in care. Here, while the Veteran has provided articles stating that veterans have higher rates of hepatitis C than non-Veterans, and dental procedures using drills, syringes, and reused vials are one of the possible transmission methods for hepatitis C, these articles are speculative at best to the Veteran's specific situation. Moreover, the Veteran provided no evidence that contaminated equipment or multi-dose vials were used during the dental procedure, despite VA obtaining the Veteran's service treatment records and military personnel files, as well as offering the Veteran multiple opportunities to submit evidence of such occurrence since he first filed his claim in June 2014. Furthermore, as VA Fast Letter 04-13 notes, hepatitis C is "spread primarily by contact with blood and blood products" with the highest prevalence of this infection occurring among those with "repeated, direct percutaneous (through the skin) exposures to blood (e.g., injection drug users, recipients of blood transfusions before screening of the blood supply began in 1992, and people with hemophilia who were treated with clotting factor concentrates before 1987)." In addition to there being no evidence of contaminated medical equipment or a blood transfusion occurring during the medical procedure, both the medical records and the Veteran's own testimony indicates that the Veteran used intravenous drugs between 1972 and 1980, indicating that he engaged in behavior that is indicated to be one of the most prevalent causes of infection of hepatitis C. Both the medical records and the VA examination reports indicate that the Veteran's intravenous and intranasal drug use was the major risk factor and most likely reason for the Veteran's contraction of hepatitis C, and there is no indication in the record that the Veteran's hepatitis C may have been related to his tooth extraction in service. Therefore, the Board finds no VA examination or opinion is required, and there is sufficient evidence to make a decision on the claim. In arriving at these conclusions, the Board has considered the statements made by the Veteran. Specifically, the Veteran asserted that he contracted hepatitis C from in-service immunizations, in-service removal of a ganglion cyst on his right wrist, and from an in-service tooth extraction. The Court has held that "[l]ay 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 this case, however, the Veteran is not competent to provide testimony regarding the etiology of hepatitis C and its residuals. See Jandreau, 492 F.3d at 1377, n.4. Because such disorders are not diagnosed by unique and readily identifiable features, it does not involve a simple identification a layperson is competent to make. Therefore, the Veteran's contentions linking these disorders to service are found to lack competency. In light of the above discussion, the Board concludes that the preponderance of the evidence is against his claim of service connection and there is no doubt to be otherwise resolved. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is denied. 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Veltri, Associate Counsel