Citation Nr: 1431423	
Decision Date: 07/14/14    Archive Date: 07/22/14

DOCKET NO.  11-00 474	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUE

Entitlement to service connection for hepatitis C.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

James E. Carsten, Associate Counsel



INTRODUCTION

The Veteran served on active duty in the U.S. Army from August 1976 to August 1982.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota.  


FINDINGS OF FACT

1.  The Veteran's hepatitis C did not manifest during active service.  

2.  The Veteran's hepatitis C is due to intravenous drug use.  


CONCLUSION OF LAW

1.  The criteria for service connection for hepatitis C have not been met.  38 U.S.C.A. §§ 101(16); 105(a), 1110, 1112, 1131, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.1(n), (m), 3.102, 3.301, 3.303 (2013).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Due Process

VA has a duty to notify and assist claimants in substantiating claims for VA benefits.  See e.g. 38 U.S.C.A. §§ 5103, 5103A and 38 C.F.R. § 3.159.  Upon receipt of a substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information and evidence necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  This notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  For service-connection claims, this notice must address the downstream elements of disability rating and effective date.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Here, VA's duty to notify was satisfied by a letter sent to the Veteran in April 2009.  

VA has a duty to assist a claimant in the development of a claim.  This duty includes assisting the claimant in the procurement of service and other pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The RO has obtained the Veteran's service and all identified post-service private treatment records.  

VA provided an examination in March 2011 to address the nature and etiology of the Veteran's hepatitis C.  38 C.F.R. § 3.159(c)(4).  To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Board finds that the March 2011 examination was adequate.  The VA examiner considered all of the pertinent evidence of record, to include the Veteran's service treatment records, and personal statements and history.  38 C.F.R. § 3.159(c)(4).  The examiner also described the Veteran's condition in sufficient detail for the Board to make an informed decision, and the examiner provided an analysis to support his conclusions.  See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007) (explaining that an opinion is adequate where it includes a detailed description of the disability, takes into consideration the relevant history of the disability, and is supported by an analysis that the Board can weigh against other evidence).  

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  In sum, there is no evidence of VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication.  38 C.F.R. § 3.159(c).

II.  Service Connection

In April 2009, VA received the Veteran's claim of entitlement to compensation for disability due to hepatitis C.  He has stated that he does not know how he was exposed to hepatitis C but that it might have been contracted during medical care following two in-service lacerations or during in-service dental care.

Law and Regulations

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.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  "To establish a right to compensation for a present disability, a Veteran must show: '(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'-the so-called "nexus" requirement."  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 

Certain chronic disabilities, such as cirrhosis of the liver or encephalitis, if manifest to a degree of 10 percent or more within one year after separation from active duty, may be presumed to have been incurred in, or aggravated by, active service.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a).  

Irrespective of the presumptive provisions, service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.309(d).  

With respect to disability, the term "service-connected" means that such disability was incurred or aggravated, in line of duty in the active military, naval, or air service.  38 U.S.C.A. § 101(16).  Direct service connection may be granted only when a disability was incurred or aggravated in line of duty, and not the result of the veteran's own willful misconduct.  38 U.S.C.A. § 105(a).  A disease or injury that is the result of the Veteran's own willful misconduct is not one incurred or aggravated in the line of duty.  38 C.F.R. § 3.1(n).  Willful misconduct means an act involving conscious wrongdoing or known prohibited action.  38 C.F.R. § 3.1(n).  

Direct service connection for a disability that is a result of a claimant's own abuse of alcohol or drugs is precluded for purposes of all VA compensation benefits for claims filed after October 31, 1990.  38 U.S.C.A. §§ 105, 1131; 38 C.F.R. § 3.1(m)-(n), 3.301; VAOPGCPREC 7-99 (1999), 64 Fed. Reg. 52,375 (1999); VAOPGCPREC 2-98 (1998), 63 Fed. Reg. 31,263 (1998).

In general a Veteran is presumed to have been sound upon entrance into active service if the condition at issue is not noted on an examination report at the time of entrance into active service.  38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b).  The presumption is not applicable unless there is a manifestation of the claimed condition during service.  See Gilbert v. Shinseki, 26 Vet.App. 48 (2012).  

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 appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. (1990).

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 VBA Training Letter 01-02 (April 17, 2001). 

VA Fast Letter 04-13 (June 29, 2004) concluded that the large majority of hepatitis C infections can be accounted for by known modes of transmission, primarily transfusion of blood products before 1992 and injection drug use.  

Factual Background

The Veteran was diagnosed post-service with hepatitis C.  The earliest diagnosis of record is 1993.  

In March 2003 one of the private medical doctors who was treating the Veteran examined him during a progress appointment.  In the notes Dr. T.G., M.D. noted that the Veteran "was an IV drug abuser years ago [and that h]e has not used for quite a long time."  In March 2008, Dr. J.C., M.D., indicated that the Veteran "probably got his hepatitis C through IV drug use in the 1970s."

The Veteran asserts that his hepatitis C could have been caused during service because safeguards to prevent infection were not as stringent while he was in the service.  The Veteran points to two lacerations in a sheet metal shop that required stitches as well as dental work to include two root canals, two crowns, and extraction of his four back molars as potential causes of his hepatitis C.  

The Veteran also notes that a friend with whom he served on the same ship was also recently diagnosed with hepatitis C.  The Veteran indicates that his friend does not know how he became infected, but his friend suspects it involved his military service.

The Veteran also stated that shortly after discharge he was seen at Lawrence & Memorial Hospital in Connecticut and that he recalls a lab test result that indicated he had an impaired liver function.  

Records obtained from that facility indicate that the Veteran was seen in January 1989 for a laceration over his eye.  In the course of treatment, urine and blood samples were taken and laboratory results obtained upon these samples.  

The VA examination was conducted in March 2011.  The VA examiner indicated that she had reviewed the Veteran's claims file.  The VA examiner noted the Veteran was found "to have Hepatitis C in 1993" and that he had subsequently been treated "unsuccessfully with interferon and ribavirin."  The examiner noted that the Veteran "states that he used i.v. drugs in the 1970s for less than a year by his report.  No blood transfusions."  

The VA examiner indicated that it is likely the Veteran contracted hepatitis through IV drug use and thus it would not be due to military service.

Analysis

Review of private and VA medical records shows a diagnosis of hepatitis C.  The Board concludes there is a current disability. 

The Veteran has self-reported that he was an intravenous drug user in the 1970s.  The Veteran commenced service in 1976 and was separated in 1982.  In March 2008, Dr. J.C., M.D., indicated that the Veteran "probably got his hepatitis C through IV drug use in the 1970s."  The VA examiner concurred in this opinion, additionally noting that the Veteran reported that he never had a blood transfusion, the other significant risk factor.  The Veteran's current diagnosis of hepatitis C has essentially been related to intravenous drug abuse.  Without knowing a precise year, the Veteran's intravenous drug use either was pre-service or in-service.

Service treatment records do not show a diagnosis or treatment of hepatitis C or any other chronic liver disorder.  The Veteran has never stated or inferred that his hepatitis C, or any symptoms of hepatitis C, manifested during his active service.  Additionally, there is no evidence of a manifestation of hepatitis C during service or within the applicable presumptive period.  The Veteran was diagnosed in 1993 and the earliest evidence of record of any potential liver condition is in January 1989, more than six years after separation.

The Board acknowledges the in-service risk factors reported by the Veteran (lacerations requiring stitches and dental work) of which he is competent to report the occurrence.  To the extent that the Veteran asserts that his hepatitis C resulted from any other incident during service including the noted lacerations and dental work, the Board observes that he does not have the medical training or expertise to render a competent opinion as to whether he may have contracted hepatitis C in another manner, as this is a determination that is too complex to be made based on lay observation alone.  

The opinions of Dr. J.C. and the VA examiner are the most probative evidence regarding the etiology of his hepatitis C.  The Board acknowledges that the Veteran referred to blood and urine tests from 1989.  Those results were of record and reviewed by the VA examiner, who opined that his hepatitis C was likely due to the intravenous drug abuse.  The competent evidence of record shows that the most likely etiology of his hepatitis C is his intravenous drug use.  See Davidson v. Shinseki, 531 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  

To the extent that the Veteran incurred hepatitis C in the "1970s" due to intravenous drug use in-service the use of illegal drugs during service constitutes willful misconduct, and therefore he did not contract the disease in the line of duty.  38 U.S.C.A. §§ 105, 1110, 1131; 38 C.F.R. §§ 3.301, 3.1(m)-(n); VAOPGCPREC 7-99 (1999), 64 Fed. Reg. 52,375 (1999); VAOPGCPREC 2-98 (1998), 63 Fed. Reg. 31,263 (1998).

To the extent that the Veteran incurred hepatitis C due to intravenous drug use in the "1970s" which includes a period of time prior to service, there is no in-service event and the presumption of soundness is inapplicable.  Gilbert v. Shinseki, 26 Vet.App. 48, 55 (2012)(presumption of soundness relates to the second element, the showing of an in-service incurrence and "the presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service.").  

Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for hepatitis C, the doctrine of reasonable doubt is not for application, and the claim must be denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Service connection for hepatitis C is denied.



____________________________________________
GAYLE E. STROMMEN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs