Citation Nr: 21041385 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 16-28 246 DATE: July 9, 2021 ORDER Entitlement to service connection for Hepatitis C is denied. FINDING OF FACT 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. CONCLUSION OF LAW 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 FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from January 1977 to February 1978. This appeal comes before the Board of Veterans' Appeals (Board) from a February 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in November 2019 and was remanded to the Agency of Original Jurisdiction (AOJ) for further development. In a February 2020 rating decision, the Veteran was granted service connection for Hepatitis B. In an April 2021 Correspondence, the Veteran indicated he is only seeking service connection for Hepatitis C. As the Veteran has specifically limited the scope of his appeal to entitlement to service connection for Hepatitis C, the Board will not discuss the grant above. Entitlement to service connection for Hepatitis C The Veteran seeks service connection for Hepatitis C he contends he contracted in service either as a result of receiving vaccines in service or as a result of being beaten and sexually traumatized in service. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303 (d). Other specifically enumerated disorders, including a psychosis, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this regard, in order to establish service connection for the claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran has a current diagnosis of Hepatitis C. See July 2019 VA Examination. The Board also finds that the Veteran is competent to report on the events he experiences while on active duty as well as manifestations of Hepatitis C. See Davidson, supra. Moreover, service treatment records document that the Veteran was hospitalized for acute Hepatitis with serology positive for Hepatitis B, and was given a diagnosis in 1977 of Hepatitis B. No diagnosis of Hepatitis C was given during service. See Colvin, supra. Likewise, in his separation examination, the Veteran reported having Hepatitis (type unspecified) at age 9 and in April 1977. See February 1978 Separation Examination. Therefore, the Board finds that the most probative evidence of record shows that the Veteran did not sustain a disease or injury while on active duty that caused his current Hepatitis C. See 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303 (a). In this regard, the Board finds that the detailed service record, which documents the Veteran's complaints, diagnoses, or treatment for Hepatitis B, weighs against his current claims that he had Hepatitis C since service. See Owens, supra. The post-service record does not show the Veteran being diagnosed with Hepatitis C in the first year following service. Therefore, the Board finds that the presumptions found at 38 C.F.R. § 3.309 (a) do not help the Veteran establish service connection for Hepatitis C. See 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. § 3.307. More importantly, the record does not show that the Veteran had a continued problem with Hepatitis C in and since service. In fact, post-service records from 2001, 2002, and 2007, years after service, reflect negative serologies for Hepatitis C, providing highly probative evidence against the claims. As to the post-service record, the Board also finds it significant that the appellant's first post-service complaints, diagnoses, or treatment for Hepatitis C does not appear in the record until 2012; 34 years after the Veteran separated from active duty ended in 1978. The Board cannot ignore such a large gap between service and the first indication of this problem, even if the Board assumes it began several years earlier. The negative tests for this very condition also provide evidence against this limited claim. At this point, the service medical records and the post-service medical evidence provides evidence against the claims. Therefore, the Board finds that the most probative evidence of record shows that the Veteran did not have a continued problem with Hepatitis C in and since service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (b). The Board also finds that the evidence does not show that the Veteran's Hepatitis C is due to his military service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (d); also see Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein). In this regard, the Veteran underwent VA examinations in July 2019 and February 2020. The Board previously found the July 2019 VA examination inadequate in the November 2019 Board Decision. Therefore, the July 2019 VA examination is not probative and will not be discussed. The February 2020 VA examiner indicated it was less likely than not that that the Veteran's Hepatitis C had its onset in or is otherwise attributable to the Veteran's service to include vaccinations or sexual trauma in service. The examiner discussed the in-service treatment records noting treatment for Hepatitis, sometimes unspecified, but indicated they referred to a diagnosis of Hepatitis B and not C. In addition, the examiner considered the pre-existing reports of the Veteran of Hepatitis at the age of 9 on his Enlistment Examination and attributed that to Hepatitis A based on post-service serological testing which showed Hepatitis A antibodies from a prior infection. Finally, the examiner noted that given the Veteran's negative Hepatitis C tests in 2001, 2002, and 2007, there could be no continuity of symptoms it was less likely than not that that the Veteran's Hepatitis C had its onset in or is otherwise attributable to the Veteran's service to include vaccinations or sexual trauma in service. The Board finds the February 2020 VA examiner's opinion to be highly probative. The examiner considered the Veteran's lay statements and had an opportunity to review the record. Significantly, there is no probative competent medical opinion of record to the contrary. In addition, the Board finds that the Veteran is not competent to provide a nexus opinion because he does not have the required medical expertise to provide answers to these complex medical questions (i.e., what caused his current Hepatitis C). See Davidson, supra. Therefore, the Board finds that the most probative evidence of record also shows that the Veteran's post-service Hepatitis C is not due to his military service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (d); also see Rabideau, supra. It is important for the Veteran to understand that the most competent and thorough medical findings provide probative evidence against the claim that the Board cannot, unfortunately, ignore, outweighing the Veteran's belief that his condition was the result of service, providing a clear basis for the decision. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for Hepatitis C. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. (Continued on the next page) In reaching the above conclusions, the Board has also considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claims to the extent discussed above, the Board finds that this doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-56. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Holcombe, 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.