Citation Nr: 22017150 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 18-49 888 DATE: March 24, 2022 ORDER Entitlement to service connection for hepatitis C is denied. Entitlement to service connection for a liver disability, to include cirrhosis, as secondary to claimed hepatitis C, is denied. FINDINGS OF FACT 1. The evidence of record persuasively weighs against finding that the Veteran has had hepatitis C at any time during or approximate to the pendency of the claim. 2. The Veteran is not service connected for hepatitis C. CONCLUSIONS OF LAW 1. The criteria for service connection for hepatitis C have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a liver disability, to include cirrhosis, as secondary to claimed hepatitis C have not been 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 June 1977 to June 1981, to include two years of foreign service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in July 2018 by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared for a hearing before the undersigned Veterans Law Judge in July 2020. A transcript of the hearing is of record. This matter was previously remanded by the Board in October 2021 for additional development. The Board finds that there has been substantial compliance with the Board's previous remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). SERVICE CONNECTION Generally, to establish service connection there must be competent evidence showing: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the in-service injury incurred or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). 1. Entitlement to service connection for hepatitis C The Veteran asserts he is entitled to service connection for hepatitis C. More specifically, the Veteran asserts that he was exposed to hepatitis C from an unsterilized air gun used to administer immunizations during his military service. During the Veteran's July 2020 Board hearing, the Veteran testified that he first learned that he had contracted hepatitis C after a routine physical approximately 3 years prior. He stated that he could not confirm or deny that the needle used for immunizations during basic training were sterilized before he was given a shot; however, he reported that this was the only time in his life that he was exposed to someone else's blood to his recollection. Review of the Veteran's service treatment records do not document complaints, diagnosis, or treatment for hepatitis C. Private medical treatment records from November 2017 document the Veteran testing positive for a hepatitis C viral load. Then, in December 2017, it was noted that the Veteran tested positive for hepatitis C antibodies and negative for a viral load. No active treatment was provided for the Veteran except for observation. Private treatment records from December 2017 also noted that the Veteran was not experiencing abdominal pain, nausea or vomiting, or jaundice. The Veteran did report fatigue. The Veteran appeared for a VA examination in November 2021. The examiner confirmed that the Veteran had been diagnosed with hepatitis C in November 2017. The examiner opined that the Veteran's claimed hepatitis C was not related to his military service. The examiner explained that in November 2017 the Veteran's hepatitis C test was positive with a viral load of 339,255; a repeat test was performed 2 weeks later and the results were negative for a viral load (meaning the viral load count was less than 15), and subsequently negative thereafter. The examiner further stated that the Veteran did not have any risk factors for hepatitis C except for the remote possibility of contracting it from an air gun in service. The examiner determined that there was no evidence of a current diagnosis of hepatitis C and opined that the record of the positive hepatitis C test was likely a false positive or a mix up in patient charts. The Board finds that the November 2021 VA examiner's opinion is entitled to great probative weight as such considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Upon reviewing the pertinent evidence of record, the Board finds that entitlement to service connection for hepatitis C is not warranted. In this regard, the Veteran does not satisfy the first element of service connection (a current disability). Evidence of record shows that the Veteran had a possible diagnosis of hepatitis C in November 2017 based on a test given at the time showing a viral load of 339,255. Approximately 2 weeks later, the Veteran's blood test was negative for a viral load. Symptoms for hepatitis C were absent except for fatigue. Subsequent tests were also negative for hepatitis C. Further, the Veteran did not receive treatment for hepatitis C due to his subsequent tests being negative. The November 2021 VA examiner also noted that there was no evidence of a current diagnosis of hepatitis C. As such, the preponderance of the evidence weighs in favor of finding that the Veteran does not have a current diagnosis of hepatitis C. Thus, the first element of service connection is not satisfied. The Board is well aware of the caselaw establishing that a diagnosis in close proximity to the date of claim may nevertheless satisfy the current disability criterion. Here, the possible diagnosis of hepatitis C was issued some five months before the claim was filed. Despite that diagnosis, however, as summarized in the preceding paragraphs, there is no evidence that the Veteran had this diagnosis at any time during the appeal period, nor is there evidence of any residuals of the diagnosis during the appeal period. Whether the initial test was a false positive or, as suggested by the examiner, simply a mix-up is not clear. What is clear, however, is that during the course of this appeal, there is simply no diagnosis or evidence of any functional impairment that would satisfy the first element of service connection. The Board notes that even if the first element of service connection were satisfied, the Veteran's claim would fail on the second element of service connection (in-service incurrence or aggravation of a disease or injury). This is due to the lack of corroborating evidence of the Veteran's assertion that an unsterilized air gun was used to administer his immunizations during service. Therefore, the Board finds that entitlement to service connection for hepatitis C is not warranted. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the persuasive evidence of record is against the Veteran's claim; the evidence is not in approximate balance, and the benefit of the doubt doctrine is not for application. Accordingly, service connection for hepatitis C is denied. 2. Entitlement to service connection for a liver disability, to include cirrhosis, as secondary to claimed hepatitis C The Veteran asserts he is entitled to service connection for a liver disability as secondary to hepatitis C. As stated previously, in order to prevail on a claim for secondary service connection, a current disability must be proximately due to, or aggravated beyond its normal progression by, a service connected disability. Here, the Board has determined that the Veteran is not entitled to service connection for hepatitis C. Therefore, service connection for a liver disability cannot be granted as secondary to hepatitis C. There is no evidence or argument providing that the Veteran's claimed liver disability had its onset during or is otherwise directly related to his active service. Absent such evidence or argument, no further efforts under the duty to assist are warranted or required for this claim. (Continued on next page) Absent a primary service-connected disability, and with no evidence of a direct relationship to service, service connection for a liver disability must be denied. The persuasive evidence of record is against the Veteran's claim; the evidence is not in approximate balance, and the benefit of the doubt rule is not for application. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. K. Hall, 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.