Citation Nr: 21040267 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 16-58 450A DATE: July 3, 2021 ORDER Entitlement to service connection for cirrhosis of the liver as secondary to hepatitis C is denied. Entitlement to service connection for hepatitis C is denied. FINDINGS OF FACT 1. The evidence of record reflects that the Veteran's cirrhosis of the liver is proximately due to nonservice connected hepatitis C. 2. The preponderance of the evidence is against finding that hepatitis C began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for cirrhosis of the liver due to service or service-connected disease or injury are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for service connection for hepatitis C are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1971 to August 1973. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Board remanded this matter in December 2018 and August 2020 for additional development. Service Connection 1. Entitlement to service connection for cirrhosis of the liver as secondary to hepatitis C. The Veteran contends that his cirrhosis of the liver is secondary to his hepatitis C. Because the Veteran has not raised, and the record does not reasonably raise, entitlement to direct service connection, the Board's adjudication will consider only entitlement to secondary service connection. Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. The question for the Board is whether the Veteran has a current disability that is proximately due to or the result of or was aggravated beyond its natural progress by a service-connected disability. The Board concludes that, while the Veteran has a current diagnosis of cirrhosis of the liver, the preponderance of the evidence is against finding that it was proximately due to or the result of or aggravated beyond its natural progression by service-connected disability. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). The Veteran was afforded a VA hepatitis, cirrhosis and other liver conditions examination in October 2019. It was noted that the Veteran was diagnosed with hepatitis C in October 2012 and then with cirrhosis of the liver in January 2013. The Veteran reported being diagnosed with walking pneumonia while stationed in Germany and that he was placed in the hepatitis ward where he received injections every 6 hours, roughly 59 in total. He further stated that he was given experimental medicine in the military that now has warnings for the liver. He further reported drinking heavily (3 to 4 40-ounce beers per day) for many years. No history of intravenous drug use was noted. The examiner opined that the Veteran's cirrhosis of the liver is at least as likely as not due to hepatitis C, noting that chronic hepatitis C is a leading cause of cirrhosis in the United States. The examiner stated that hepatitis c causes the liver to swell which over time can lead to cirrhosis. It was also noted that drinking too much alcohol can also cause the liver to swell which can over time lead to cirrhosis. The examiner then stated that the Veteran's cirrhosis was likely multifactorial. The Board finds the October 2019 VA examiner's opinion is adequate because the examiner reviewed the Veteran's relevant medical history and offered a clear opinion regarding the relationship between cirrhosis and the Veteran's risk factors for cirrhosis. See, Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board acknowledges the Veteran's report that he received experimental drugs while in service that now have a warning for the liver. However, in addition to there being no indication of this in his service treatment records, the Veteran has not identified the drug beyond a vague description of it being an "experimental drug" with a warning for the liver. As such, the Board finds this statement to be of no probative value. Here, the evidence is at least in equipoise as to whether the Veteran's cirrhosis of the liver is secondary to his hepatitis C. However, as he is not service connected for hepatitis c, and has not reasonably raised service connection on any other basis, service connection for cirrhosis of the liver is not warranted. 2. Entitlement to service connection for hepatitis C. The Veteran contends that he contracted hepatitis C during service when he was hospitalized for pneumonia and was placed in a hepatitis ward. He further contends that he was given an experimental drug in the service that now has warnings for the liver. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 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 related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of hepatitis C, and evidence shows that he was hospitalized for pneumonia while in service, the preponderance of the evidence weighs against finding that the Veteran's diagnosis of hepatitis C began during service or is otherwise related to an in-service injury, event, or disease. A January 1973 service treatment record notes the Veteran had been hospitalized for 15 days for pneumonia. The Veteran was afforded a VA hepatitis, cirrhosis and other liver conditions examination in October 2019. It was noted that the Veteran was diagnosed with hepatitis C in October 2012 and then with cirrhosis of the liver in January 2013. The Veteran reported being diagnosed with walking pneumonia while stationed in Germany and that he was placed in the hepatitis ward where he received injections every 6 hours, roughly 59 in total. He further stated that he was given experimental medicine in the military that now has warnings for the liver. He further reported drinking heavily (3 to 4 40-ounce beers per day) for many years and using cocaine for 20 years. No history of intravenous drug use was noted. The VA examiner opined that the Veteran's hepatitis c was less likely than not incurred in or caused by his service, noting that the Veteran was not diagnosed until 2013 and that his separation examination indicated no history of hepatitis or jaundice. The examiner then noted that the Veteran received no blood transfusions while hospitalized in Germany and that he is a member of the baby boomer generation who are "5 times more likely to have hepatitis c than other adults" according to the Centers for Disease Control (CDC). VA obtained an addendum opinion in January 2021. The examiner reviewed the claims file and opined that, based on medical records reviewed, his hepatitis c is less likely than not incurred in or caused by his service and that he did not have a diagnosis of hepatitis C within 1 year of discharge. The examiner explained that hepatitis C is not transmitted by sharing a floor or even a room, that needles are not shared or reused in hospital settings, and that the Veteran did not have a blood transfusion while in service. The examiner noted that the Veteran used intranasal cocaine for 20 years and stated this is a known method of transmission for hepatitis C. The Board finds the October 2019 and January 2021 VA examiner's opinions adequate because the examiner reviewed the Veteran's relevant medical history and offered clear opinions regarding the relationship between the condition and the Veteran's period of service. See, Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board acknowledges the Veteran's account that he received experimental drugs while in service that now have a warning for the liver. However, in addition to there being no indication of this in his service treatment records, the Veteran has not identified the drug beyond a vague description of it being an "experimental drug" with a warning for the liver. As such, the Board finds this statement to be of no probative value. The Veteran believes his hepatitis C is related to an in-service injury, event, or disease. While the Veteran is competent to report having been placed in a hepatitis ward due to overcrowding, he is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of pathology. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the VA examiner's opinions. In light of the above, the Board finds that the weight of the evidence is against a finding that the Veteran's hepatitis C had its onset in or was otherwise caused by his service and that service connection is not warranted. The benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Keeley, Brian 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.