Citation Nr: 21042212 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 05-30 126 DATE: July 12, 2021 ORDER Service connection for hepatitis C is denied. FINDING OF FACT The Veteran's hepatitis C did not have its onset during and is not otherwise related to service, or secondary to service-connected disability. CONCLUSION OF LAW The criteria for service connection for hepatitis C are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1972 to April 1974. The case is on appeal from a September 2004 rating decision. In February 2021, the Board remanded the issue on appeal for additional development. The Board notes that, in August 2011, June 2015 and December 2020, the Veteran testified at Board hearings before the undersigned. Additional evidence was received subsequent to the most recent supplemental statement of the case (SSOC) issued in April 2021. As the evidence is not pertinent to the claim and/or duplicative of evidence already of record, see March, May, & November 2020 Logbooks, a remand for RO consideration of the evidence is not necessary. See 38 C.F.R. § 20.1305(c). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service connection for hepatitis C. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(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." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310. Analysis The Veteran maintains that he contracted hepatitis C during service, including as a result of intravenous (IV) drug use due to stress and immunizations administered by air inoculation mode that allowed for cross-contamination. See August 2011 & December 2020 Board hearing testimony. In the alternative, he asserts that hepatitis C is secondary to his service-connected psychiatric disorder. The Veteran's service treatment records (STRs) are negative for complaints, symptoms, or diagnosis of hepatitis C. Although the records reflect that immunizations were administered, see October 2007 STRs, the April 1974 separation examination was normal. Pursuant to the Board's February 2021 remand, a VA opinion was obtained in March 2021. In addition to the Veteran's STRs noted to be negative for symptoms or a diagnosis of hepatitis C, the initial diagnosis of hepatitis C was reported in approximately 2004, many years after service. Further, and although capable of worsening the effects of alcohol use, which in turn could interfere with treatment of hepatitis C, no support for alcohol abuse as an etiology of hepatitis C was noted. Additionally, no evidence to establish that in-service immunizations resulted in the Veteran contracting hepatitis C was reported. The opinion concludes that it is less than likely that the Veteran's hepatitis C was related to service, and more than likely related to post-service alcohol and drug use. The Board notes that, although a February 2012 Board decision granting service connection for a psychiatric disorder due to stress associated with service, including during service on board the USS Midway, references a February 2011 VA examination report reflecting the Veteran's substance abuse started during service and worsened both during and after service, a bare transcription of lay history, unenhanced by additional comment by the transcriber, does not become competent medical evidence merely because the transcriber is a health care professional. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995); see also Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). The Board notes that reasonable doubt was resolved in the Veteran's favor in awarding service connection for a psychiatric disorder. Moreover, and although the Veteran is competent to report having been told he tested positive for hepatitis C during service, in addition to the separation examination report showing that the Veteran's liver and hepatic system were normal, post-service VA and private medical records and examination reports, dated from 1986 to 2011, indicate that, when privately hospitalized for surgical treatment of an ankle fracture in September 1986, hepatitis C was not noted. The initial post-service evidence of hepatitis C is in February 2004, while hospitalized by VA for treatment for alcohol abuse. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (to the effect that a lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim). Further, as the Veteran has no known or reported medical expertise, his opinion as to causation lacks probative value. Equally important, competence and credibility are to be distinguished. In that respect, and although the Veteran maintains that drug and alcohol use began during service, see August 2011 and December 2020 Board hearing testimony, the March 2021 VA opinion reflects the Veteran's history of alcohol use prior to service, since age 12. Additionally, and although the Veteran denied a history of recreational drug use in August 2016, see July 2019 Medical Treatment Records Government facility, as reflected in the March 2021 VA opinion, the Veteran was discharged from a substance abuse rehabilitation program in 2004 when he tested positive for benzodiazepines. The Board notes that although the record reflects an assertion of service in Vietnam, the Veteran did not serve in Vietnam or within 12 nautical miles of Vietnam's shorelinethe. See April 2021 VA Memo; September 2015 Board decision. As noted in the Board's 2017 remand, the December 2015 VA opinion that the most likely etiology of the Veteran's hepatitis C was IV drug use based on the Veteran's self-reported IV cocaine and heroin use during service on board ship in late 1972 is of diminished probative value, if any, due to internal inconsistency. See also January 2020 VA examination report noting inconsistent statements. With respect to secondary service connection, and although the March 2021 VA opinion notes that medical literature supports the co-existence of a psychiatric disorder and hepatitis C, no support for a mental health condition being the cause of alcohol/drug use was reported. Further, the Veteran was noted to no longer have hepatitis C, and no cirrhosis or other comorbid conditions associated with hepatitis C, including renal disease and autoimmune disease. The opinion states that the Veteran's hepatitis C was less than likely aggravated by his service-connected psychiatric disorder. The Board has also considered a VA issued training letter, dated April 17, 2001, setting forth a list of recognized risk factors for contracting hepatitis C. The Board has accorded the greatest probative weight to the March 2021 VA opinion specially pertaining to the Veteran in this case. In that respect, the March 2021 opinion is unequivocally stated, consistent with the record, and supported by cited evidence of record. Thus, the Board finds that this medical opinion is probative evidence against the Veteran's claim. That is, the medical evidence outweighs the Veteran's report of a continuity of symptomatology and his lay opinion on the matter, even if such a theory is intuitively plausible to a lay person, as well as to a link between hepatitis C and service-connected disability. As the preponderance of the evidence is against the claim, there is no doubt to be resolved. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Therefore, service connection for hepatitis C is not warranted. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Taylor 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.