HEPATITIS

Summary

The veteran, who served from January 1967 to October 1975 and again from May 1980 to January 1993, appeals the denial of service connection for residuals of hepatitis B. The veteran tested positive for hepatitis B in June 1988 during service, but subsequent examinations, including one in March 1993, found no current active hepatitis B or residuals, indicating a resolved infection. The veteran failed to report for a scheduled VA examination in May 2024 and did not provide good cause or request rescheduling, though his representative argued the case should be decided on existing evidence. A subsequent VA examination in December 2024 opined that the hepatitis B was less likely than not incurred in or caused by service, as the in-service finding indicated a resolved infection with no subsequent manifestation. The Board found the evidence persuasively weighed against a current disability, citing the consistent findings of no active hepatitis B or residuals from multiple examinations and the lack of competent evidence of symptoms or functional impairment. Therefore, service connection for residuals of hepatitis B was denied.

Rationale

No current active hepatitis B or residuals found; In-service finding indicated resolved infection; No evidence of chronic hepatitis or subsequent manifestation

Full Decision Text

Citation Nr: 25009583
Decision Date: 07/23/25	Archive Date: 07/23/25

DOCKET NO. 19-07 236A
DATE: July 23, 2025

ORDER

Service connection for residuals of hepatitis B is denied.

FINDING OF FACT

The Veteran does not exhibit current active hepatitis B or any residuals thereof.

CONCLUSION OF LAW

The criteria for service connection for residuals of hepatitis B are not met.  38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from January 1967 to October 1975 and from May 1980 to January 1993, with additional Reserve service.

This appeal is before the Board of Veterans' Appeals (Board) from an August 1993 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah.

In his December 1993 substantive appeal, the Veteran requested a hearing before the Board.  Before such a hearing could be scheduled, he withdrew his hearing request via a March 1994 letter from his representative.  The agency of original jurisdiction (AOJ) construed ambiguous language in this letter as a full withdrawal of his appeal, and development ceased.

In September 2022, the Veteran testified during a Board hearing before the undersigned Acting Veterans Law Judge via videoconference.  A transcript is included in the claims file.  At this hearing, which was initiated in relation to appeals no longer before the Board, the Veteran testified that he never intended to withdraw his appeal in March 1994, and gave testimony as to the issues of the August 1993 rating decision.

In March 2023, the Board remanded the issue on appeal with instruction to readjudicate the appeals and issue a supplemental statement of the case.  A supplemental statement of the case was issued in October 2023.  In May 2024, the Board again remanded with instruction to provide VA examinations and to obtain a medical opinion.  The Veteran was scheduled for a VA examination in May 2024, but he failed to report.  While the record does not include copies of notification letters sent to the Veteran, he was notified that he had failed to report to scheduled examinations by the June 2024 supplemental statement of the case.  Moreover, in a July 2024 informal hearing presentation, his representative did not argue that he had missed the examination for good cause or that the examination should be rescheduled via remand.  Rather, the representative argued that failure to report to an examination does not require denial of initial claims of service connection under 38 C.F.R. § 3.655(b), and that the appeal should be adjudicated based on the record evidence.  In November 2024, the Board remanded with instruction to obtain a medical opinion based on review of the record.  Such an opinion was obtained in December 2024.  The Board is therefore satisfied that the AOJ has made sufficient attempts to comply with the instructions in its remands of March 2023, May 2024, and November 2024.  See Stegall v. West, 11 Vet. App. 268 (1998).

The January 2025 Board decision also remanded the issues of entitlement to service connection for bilateral hearing loss and for high arches of the bilateral feet.  Upon completion of the ordered development, an April 2025 rating decision granted service connection for bilateral hearing loss and for foot drop of the left and right feet.  The diagnosis of bilateral foot drop is consistent with the findings of the VA examinations that the Veteran attended by the Veteran in June 2018 and April 2023 to address his claims of high arches.  The Board thus finds that these awards constitute full grants of these remanded issues, and they are therefore no longer before the Board.

Entitlement to service connection for residuals of hepatitis B

The Veteran claims service connection for residuals of hepatitis B.

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection requires:  (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.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Calu
 B

The Veteran claims service connection for residuals of hepatitis B.

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection requires:  (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.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995).  Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether the evidence is persuasively against the claim, in which case the claim is denied.  38 U.S.C. § 5107; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.

Service treatment records reflect that the Veteran tested positive for hepatitis B in June 1988.  A September 1992 retirement report of history notes that the hepatitis was found when he attempted to donate at a blood drive.  Etiology was unknown.

The Veteran underwent a VA examination in March 1993.  The examiner found no current disability, explaining that his service treatment records included a 1988 positive result for hepatitis B during a routine blood test, compatible with old resolved hepatitis.  The examiner found no evidence or history of chronic hepatitis and stated that the Veteran was in excellent health currently.  His serologic status confirmed a past infection, but he had no active ongoing liver disease.

As discussed above, the Veteran was scheduled for another VA examination in May 2024.  He failed to report.  He has not shown good cause for his failure to report, nor has he requested that the examination be rescheduled.  In a July 2024 informal hearing presentation, his representative acknowledged his failure to report but did not request the Board remand for a rescheduled examination.  Rather, the representative argued that the appeal should be decided on the evidence already of record under 38 C.F.R. § 3.655(b).  

VA obtained an opinion from a medical examiner in December 2024 based on review of the record.  The examiner opined that the Veteran's claimed hepatitis B was less likely than not incurred in or caused by service.  This opinion was based on the rationale that in service the Veteran tested positive for hepatitis B antigen, not active infection.  The examiner explained that this was indicative of an infection that had resolved.  He never had any evidence of chronic hepatitis.  Records thereafter failed to show any evidence of recurrence of the condition, and he remained asymptomatic.

The Board finds that the evidence persuasively weighs against a finding of a current disability of active hepatitis B or residuals thereof.  The December 1993 VA examiner and the December 2024 VA examiner both found no evidence of hepatitis B and identified no current residuals.  They explained that the Veteran's in-service laboratory finding was incidental and represented a prior infection that had resolved with no evidence of manifestation in service or after separation.  There is no evidence to contradict these findings.  Moreover, the Veteran has not presented competent and credible evidence of hepatitis symptoms or residuals or functional impairment of earning capacity from hepatitis symptoms or residuals during the pendency of the claim or recent to the filing of the claim. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018).  Where the evidence does not support a finding of current disability upon which to predicate a grant of service connection, there can be no valid claim for that benefit.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013).  As such, the Board finds that the evidence persuasively weighs against a finding of a current disability
 or recent to the filing of the claim. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018).  Where the evidence does not support a finding of current disability upon which to predicate a grant of service connection, there can be no valid claim for that benefit.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013).  As such, the Board finds that the evidence persuasively weighs against a finding of a current disability and service connection must therefore be denied.

 

 

C. BOSELY

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Gallagher, 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.