Citation Nr: 21041926 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 16-58 433 DATE: July 10, 2021 ORDER Entitlement to service connection for hepatitis C is denied. Entitlement to service connection for major depressive disorder (MDD), claimed as secondary to hepatitis C, is denied. Entitlement to a total disability rating based upon individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran's hepatitis C did not manifest in service or for many years thereafter, and the evidence does not show that his hepatitis C is related to or may be associated with service. 2. The Veteran's MDD is neither caused nor aggravated by a service-connected disability. 3. The Veteran is not service connected for any disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hepatitis C have not been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for MDD have not been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to a TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1974 to September 1976. This case comes to the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to service connection for MDD, hepatitis C, and a TDIU. In September 2014 the Veteran filed a notice of disagreement (NOD) and in September 2016 the RO issued a statement of the case (SOC). In November 2016 the Veteran filed a substantive appeal (via VA Form 9). In December 2018 the Board remanded the Veteran's claim for further evidentiary development, specifically, to obtain an opinion as to the etiology of his hepatitis C and MDD. For the reasons stated in the discussion below, the Veteran was afforded adequate VA opinions and the RO substantially complied with the remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). As a final preliminary matter, in the September 2014 NOD and November 2016 VA Form 9 the Veteran's representative requested to temporarily suspend his claim for MDD and a TDIU pending the outcome of his claim for hepatitis C. However, he did not specifically request to withdraw his claim and the RO and Board continued to adjudicate his claim. In his November 2016 substantive appeal, the Veteran requested to appeal all issues, which would include his claim for MDD and a TDIU. Therefore, the Board finds the claim for MDD and a TDIU remains in appellate status despite his request to suspend his claim. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after 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). 1. Hepatitis C An April 2006 private treatment note indicates that the Veteran was diagnosed with hepatitis C in the late 1980s. Also, an April 2012 private physician diagnosed the Veteran with hepatitis C. Thus, a current disability has been demonstrated. On the March 2012 Veterans Application for Compensation and/or Pension (VA Form 21-526) the Veteran stated that he likely contracted hepatitis C while in the military as he did not encounter any risk factors while in civilian life. In August 2012 the Social Security Administration (SSA) furnished the VA with medical treatment records. While SSA records are not controlling for VA determinations, they may be "pertinent" to VA claims. Collier v. Derwinski, 1 Vet. App. 412 (1991). These records include an August 2018 treatment note in which the Veteran reported that he believed that he contracted hepatitis C while being immunized in the Army as he stood in a line and the medical professionals did not change the needle. On the September 2014 NOD, the Veteran's representative stated that he suffered a nose laceration in service which indicates blood exposure and treatment within a medical facility. The Veteran's service treatment records (STRs) are negative of complaints, treatment, or findings of liver problems or any variant of hepatitis C. However, an April 1976 STR indicates that the Veteran suffered a superficial laceration to the right side of his nose. The injury was cleaned with hydrogen peroxide and Neosporin. Thus, the in-service injury or disease requirement is met. The remaining question is whether a nexus exists between the Veteran's current hepatitis C and an in-service injury or disease. A June 2013 VA examiner opined that the Veteran's hepatitis C is less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner explained that while his STRs revealed improper use of amphetamines, there was no mention of IV drugs or crack cocaine. The VA examiner noted that there were no known risk factors in the Veteran's STRs. A September 2019 VA examiner opined that the Veteran's hepatitis C is less likely than not incurred in or caused by the claimed in-service injury, event or illness. The VA examiner explained that from standard medical text books air gun inoculation or contusions are not one of the etiologies of hepatitis C. Taken together, the June 2013 and September 2019 VA examiners explained the reasons for their conclusions based on an accurate characterization of the evidence of record, his opinion is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). Moreover, there is no contrary medical opinion in the evidence of record. The Board notes that medically recognized risk factors for hepatitis C include: (a) transfusion of blood or blood product before 1992; (b) organ transplant before 1992; (c) hemodialysis; (d) tattoos; (e) body piercing; (f) intravenous drug use (with the use of shared instruments); (g) high-risk sexual activity; (h) intranasal cocaine use (also with the use of shared instruments); (i) accidental exposure to blood products as a healthcare worker, combat medic, or corpsman by percutaneous (through the skin) exposure or on mucous membrane; and (j) other direct percutaneous exposure to blood, such as by acupuncture with non-sterile needles, or the sharing of toothbrushes or shaving razors. See VA Training Letter 01-02 (April 17, 2001). During the pendency of the appeal, all VA Fast and Training Letters were rescinded, however, FL 01-02 can provide some guidance on how to evaluate possible causes of hepatitis C. In the present case, there is no evidence that the Veteran required a blood transfusion, received a tattoo or body piercing, engaged in high-risk sexual activity, used intranasal cocaine, was a healthcare worker, or had direct percutaneous exposure to blood at any time during his military service. It was noted that the Veteran used amphetamines while in service, however, there is no indication that he shared instruments. The Veteran's July 1976 separation examination report is negative for any diagnosis of hepatitis C or liver related complaints and a report of medical history is not included in the Veteran's STRs. In addition, the absence of any clinical evidence of hepatitis C or a liver related condition for decades after the Veteran's separation from active service is one factor, along with the separation examination report, weighing against a finding that his current disability was present in service or in the year or years immediately after service. See Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (the Board may consider in its assessment of a service connection claim the passage of a lengthy period of time wherein the veteran has not complained of the malady at issue). The Veteran's statements may be competent on a variety of matters concerning the nature and cause of disability. However, the dispositive question presented in this case (i.e., whether any relationship exists between the Veteran's current hepatitis C and his injury in service) is a question as to internal medical processes which extend beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. See Jandreau v. Nicholson, 492 F.3d 1372 at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). An opinion as to whether there is a link between the Veteran's current hepatitis C and service, where there is no evidence of any problems for many years after service, is one requiring specialized knowledge and testing to understand the complex nature of the body systems. The Veteran has not indicated that he has such experience and his opinion on the question of nexus is therefore not competent. For the reasons set forth above, the preponderance of the evidence is against the claim of service connection for hepatitis C. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. MDD Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a),(b). A May 2013 VA examiner diagnosed the Veteran with MDD, and the Veteran claimed service connection as secondary to his hepatitis C. Because the Board herein denies service connection for hepatitis C, there is no legal basis for granting service connection for MDD. As service connection for the primary disability has been denied, the Veteran cannot establish entitlement to service connection for a secondary condition. See 38 C.F.R. § 3.310. Thus, the matter of service connection for MDD as secondary to hepatitis C is without legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). For the foregoing reasons, the preponderance of the evidence is against the claim for entitlement to service connection for depression on a secondary basis as a matter of law. The benefit of the doubt doctrine is thus not for application, and the claims must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. TDIU A service-connected disability is a basic threshold eligibility requirement for a TDIU claim. 38 C.F.R. § 4.16. In this case, the Veteran is not service connected for any disability. Since the Veteran's TDIU claim does not meet the threshold eligibility criteria, it lacks legal merit or legal entitlement and the claim must be denied as a matter of law. See Sabonis, 6 Vet. App. 426 at 430. B. G. LeMoine Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James R. Miller, 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.