Citation Nr: 1134050 Decision Date: 09/12/11 Archive Date: 09/22/11 DOCKET NO. 09-08 084 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for hepatitis C. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Cryan, Counsel INTRODUCTION The Veteran served on active duty from June 1973 to May 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The Veteran testified at a hearing before the Board in August 2009. The Board remanded the Veteran's claim for additional development in January 2010 and May 2011. FINDING OF FACT The Veteran's hepatitis C is not attributable to his military service. CONCLUSION OF LAW The Veteran does not have hepatitis C that is the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.1(n), 3.303, 3.304, 3.655 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran claims that he is entitled to service connection for hepatitis C because he contracted hepatitis C while experimenting with intravenous drugs in service. He indicated that drug use was prevalent during his time in service and that the conditions and environment to which he was exposed during service caused him to use intravenous drugs. The Veteran's service medical records do not show any complaints, findings, or treatment for hepatitis C or liver problems. Private treatment reports from D. Bash, M.D., dated from July 2003 to September 2007 reflect that the Veteran was receiving treatment for a history of hepatitis C. A 1998 liver biopsy was noted to have revealed minimal activity of chronic active hepatitis with no fibrotic change and moderate fatty change. A May 2006 liver biopsy was noted to have shown Grade I hepatitis and Stage I fibrosis with minimal fatty change. An etiology opinion regarding the Veteran's hepatitis C was not included. At an August 2009 hearing before the Board, the Veteran testified that when he entered service he was eighteen years old and had never been exposed to any type of illicit drugs. He stated that he was exposed to marijuana initially but after being transferred to Germany he was exposed to intravenous drugs, namely heroine. He indicated that he believed that he contracted hepatitis C from sharing needles in service. The Veteran testified that hepatitis C was not named medically until 1990 and he was diagnosed with hepatitis C in 1993 after a physical examination. The Veteran reported that he does not have any tattoos but he reported that he had sexual relations without protection. He denied symptoms of hepatitis during service. He testified that he sold his plasma to get drugs following service in the 1970s and was initially told that he had gonorrhea. The Veteran reported that tests later indicated that he did not have gonorrhea. He testified that he was advised in 1993 that he had hepatitis following a physical examination. The Veteran indicated that his doctors did not tell him that his hepatitis C was related to service because it was not possible to state how he contracted the disease. A medical opinion was obtained from a VA physician in July 2010. At that time the examiner indicated that she was unable to provide the approximate date of onset of the Veteran's hepatitis C or the manner in which he likely contracted the virus because there was no conclusive evidence that the Veteran had hepatitis C during his military service. The Veteran was notified in correspondence dated in June 2011 that he was scheduled for a VA examination in June 2011. The Veteran failed to report for the examination. The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2010). The chronicity provisions are applicable where evidence, regardless of its date, shows that a Veteran had a chronic disability in service, or during an applicable presumptive period, and still has that disability. Such evidence must be medical unless it relates to a condition as to which lay observation is competent. 38 C.F.R. § 3.303(b) (2010). If chronicity is not shown, service connection may still be established if the condition is noted during service or during an applicable presumptive period, and if competent evidence relates the present condition to symptomatology experienced since service. 38 C.F.R. §3.303(b) (2010); Savage v. Gober, 10 Vet. App. 488 (1997). Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Pond v. West, 12 Vet. App. 341 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). Drug abuse means the use of illegal drugs (including prescription drugs that are illegally or illicitly obtained), the intentional use of prescription or non-prescription drugs for a purpose other than the medically intended use, or the use of substances other than alcohol to enjoy their intoxicating effects. 38 C.F.R. § 3.301 (2010). The controlling law provides that service connection may be established for disability resulting from personal injury or disease incurred in or aggravated by service, but no compensation shall be paid if the disability was the result of the person's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2010). With respect to alcohol and drug abuse, section 8052 of the Omnibus Budget Reconciliation Act (OBRA) of 1990, Public Law No. 101-508, § 8052, 104 Stat. 1388, 1388-351, prohibits, effective for claims filed after October 31, 1990, payment of compensation for a disability that is a result of a veteran's own alcohol or drug abuse. 38 U.S.C.A. §§ 1110, 1131 (West 2002). With respect to claims filed after October 31, 1990, an injury or disease incurred during active service will not be deemed to have been incurred in line of duty if the injury or disease was a result of the person's own willful misconduct, including abuse of alcohol or drugs. 38 U.S.C.A. § 105 (West 2002); 38 C.F.R. §§ 3.1(m), 3.301 (2010). The corresponding regulations provide that alcohol abuse and drug abuse, unless they are a secondary result of an organic disease or disability, are considered to be willful misconduct. 38 C.F.R. §§ 3.301(c)(2), 3.301(c)(3) (2010). The isolated and infrequent use of drugs by itself will not be considered willful misconduct; however, the progressive and frequent use of drugs to the point of addiction will be considered willful misconduct. 38 C.F.R. § 3.301(c)(3) (2010). The Veteran was scheduled for a VA examination in June 2011 in order to obtain an opinion as to the etiology of his claimed hepatitis C. However, he failed to report for the scheduled VA examination and good cause has not been shown. The Board observes that the duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). The failure to report to a scheduled examination, without good cause, may result in a denial of claims for service connection and for a higher initial rating. Original claims will be considered on the basis of evidence of record. 38 C.F.R. § 3.655 (2010). Therefore, because the Veteran has not shown good cause for his failure to report for his most recently scheduled VA examination, the Board will proceed based on the evidence of record. Wood v. Derwinski, 1 Vet. App. 190 (1991); Kowalski v. Nicholson, 19 Vet. App. 171, 180 (2005). In considering the evidence of record and the applicable laws and regulations, the Board concludes that the Veteran is not entitled to service connection for hepatitis C. Although the Veteran has attributed his hepatitis C to his military service, the record is silent for a competent medical opinion finding such a link. The only medical opinion of record indicates that the examiner was unable to provide an opinion as to the etiology of the Veteran's hepatitis C. The examiner noted that there was no conclusive evidence that the Veteran had hepatitis C during his military service. The private medical evidence of record does not include any opinion linking hepatitis C to the Veteran's military service and the Veteran acknowledged that none of his physicians found such a link. Moreover, the Veteran has testified that his hepatitis C resulted from intravenous drug use in service. Even assuming the Veteran's intravenous drug use in service caused his hepatitis C, service connection is prohibited for willful misconduct, including the use and abuse of illegal drugs. The Board acknowledges the Veteran's contention that his hepatitis C is related to his military service. Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67 (1997). The Veteran can attest to factual matters of which he had first-hand knowledge. However, the Veteran is not otherwise competent to provide a medical opinion linking his disability to service or another service-connected disorder. Washington v. Nicholson, 19 Vet. App. 362 (2005). Thus, while the Veteran is competent to report symptoms observable to a layperson, he is not competent to independently opine as to the specific etiology of a condition. Davidson v. Shinseki, 581 F.3d 1313 (2009). The evidence of record does not include any competent medical evidence linking the Veteran's hepatitis C to his service or to any event, injury, or disease during his service. The Board finds that the preponderance of the evidence is against the claim and service connection for hepatitis C is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2010). ORDER Entitlement to service connection for hepatitis C is denied. ____________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs