Citation Nr: 1302858 Decision Date: 01/25/13 Archive Date: 01/31/13 DOCKET NO. 08-15 659 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: Michelle S. Wolf, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from August 1972 to June 1973. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which denied the Veteran's claim. A Travel Board hearing was held at the RO in July 2009 before the undersigned. A copy of the transcript of that hearing is of record. In August 2010, the Court vacated the Board's November 2009 decision and remanded the issue to the Board for further consideration pursuant to a Joint Motion for Remand dated earlier in August 2010. In March 2011, the Board remanded the claim for additional development. In March 2012, the Board requested an opinion from an independent medical expert (IME) pursuant to 38 C.F.R. § 20.901(d) (2012). An IME opinion was received in May 2012 and incorporated into the record. The Veteran and his representative were provided a copy of the IME opinion and given a 60 day period to respond. In November 2012, the Veteran and his attorney responded separately with the submission of additional evidence and expressly waived his right to have the appeal remanded to the AOJ for review of such evidence. FINDING OF FACT The preponderance of the evidence is against a causal link between the Veteran's currently manifested hepatitis C and active service or any inservice risk factors, aside from intravenous drug use, which constitutes misconduct. CONCLUSION OF LAW Service connection for hepatitis C is denied. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. First, VA has a duty under the VCAA to notify a claimant and any designated representative of the information and evidence needed to substantiate a claim. In this regard, letters to the Veteran from the RO (to include letters in January 2007 and February 2007) specifically notified him of the substance of the VCAA, including the type of evidence necessary to establish entitlement to service connection on a direct and presumptive basis, and of the division of responsibility between the Veteran and the VA for obtaining that evidence. Consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VA essentially satisfied the notification requirements of the VCAA by way of these letters by: (1) informing the Veteran about the information and evidence not of record that was necessary to substantiate his claims; (2) informing the Veteran about the information and evidence VA would seek to provide; and (3) informing the Veteran about the information and evidence he was expected to provide. The United States Court of Appeals for Veterans Claims (Court) held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, to specifically include that a disability rating and an effective date will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the Veteran was provided with notice of this information in the January 2007 VCAA letter mentioned above. Second, VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claims. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2011). The information and evidence associated with the claims file consist of his service treatment records (STRs), VA medical treatment records, private post-service medical treatment records, VA examinations, and statements and testimony from the Veteran and his representative. Also obtained was an opinion regarding the etiology of the Veteran's hepatitis C from an IME. The Veteran and his representative have submitted numerous medical articles (or excerpts therefrom) from various sources, to include the internet and from medical treatises, regarding risk factors for requiring the hepatitis C infection. There is no indication that there is any additional relevant evidence to be obtained by either VA or the Veteran. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2011); 38 C.F.R. § 3.303 (2012). 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. § 3.303(d) (2012). Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however, remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2012). This rule does not mean that any manifestations in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time as distinguished from merely isolated findings or a diagnosis including the word "chronic". When the disease entity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). The Court has held that, in order to prevail on the issue of service connection, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed inservice disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v West, 12 Vet. App. 341, 346 (1999). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Background In this case, the Veteran is seeking service connection for hepatitis C, which, on initial argument, he attributed to IV drug use in service. In 2011, he argued that he gave false statements to authorities during service about his inservice drug use in order to remain in the Navy and to fit in with others. In the alternative, he asserts that he was infected with hepatitis C from an inoculation gun. He further states that he received his tattoo while being initiated and while under direct supervision of officers. Review of the STRs is negative for complaints of, treatment for, or a diagnosis of hepatitis C. A March 1973 intake evaluation showed that the Veteran was admitted to the Naval Drug Rehabilitation Center. He had been referred for treatment after being arrested for the possession of drug paraphernalia. While he stated that he did not want to use drugs, he saw nothing wrong with such use. During the intake evaluation the Veteran reported that he used speed weekly for the past two to three years, heroin by intravenous (IV) use two to three times weekly for the past six months, and cocaine by IV two to three times weekly for the past six months. He was diagnosed with drug dependence of heroin and drug abuse of cocaine and amphetamines. A June 1973 note found the Veteran suffered an apparent over-dose of methadone complicated by alcohol. A March 1973 examination noted that the Veteran had a tattoo. These records do show that he received at least 6 inoculations during service. Of record is an undated and hand written letter (that is, however, date stamped for receipt in September 1974) indicating that the Veteran had to terminate his enrollment at the "U of L" (University of Louisville) because he "came down with hypititis" one month after enrollment. The correspondence concerned the filing of benefits in the future. Also of record is a VA August 1974 education attendance certification letter in which the Veteran indicated that his school enrollment was terminated on January 21, 1974, because of "illness/hypititus." Private medical records include a November 2003 note that stated the Veteran was discovered to have hepatitis C during hip surgery. In June 2007 the Veteran was accorded a compensation and pension (C&P) liver, gall bladder, and pancreas examination. During the examination the Veteran reported that hepatitis C was discovered when he was preparing for hip replacement surgery in 2000. Risk factors included a history of chronic liver disease, a tattoo during service, and IV drug use during service. He reported that he experienced intermittent fatigue. The Veteran was diagnosed with hepatitis C. The examiner opined that it was most likely the result of the tattoo and IV drug use during service. A second opinion from a VA physician was offered in March 2008 based on a review of the claims file. The examiner, after a review of the Veteran's medical records found that the extended use and multiple injections of IV drug use was a dramatically greater risk factor for infection with hepatitis C. She also stated that the air gun used in inoculations has never been confirmed to have resulted in transmission of hepatitis C. Further, she found that the single tattoo would have put the Veteran at low risk for acquisition of hepatitis C, and is a dramatically lower risk than his IV drug use. She opined that the Veteran's hepatitis C is more likely than not the result of the Veteran's IV drug use and less likely than not due to his single tattoo. During the July 2009 hearing, the Veteran testified that he initially thought the use of the air gun used for vaccinations caused his hepatitis C. He further testified that he used IV drugs while in the Naval Rehabilitation Center in an effort to fit in and avoid ostracism from the group. He stated that the use was isolated and that it should not be considered willful misconduct. In statements dated in November 2011, the Veteran's mother and uncle attested that the Veteran was very sick after his return from military service. His mother indicated that he had stomach problems and fatigued easily. They both recalled that he was diagnosed with hepatitis C in 1974 by the family physician. He was prescribed antibiotics. The mother and uncle were unaware of the Veteran ever using IV drugs either in service or after service. In his own November 2011 statement, as related by his attorney representative, the Veteran claimed that he had given a false statement to Navy authorities regarding having a history of IV drug. In a September 2011 statement, the Veteran's attorney representative noted that records from the family physician regarding the diagnosis of hepatitis C in 1974 (as alleged by the Veteran and his family in statements above) were unavailable in that the doctor only saved records for 25 years. The injury alleged is exposure to hepatitis C virus through claimed mechanisms in-service, as detailed above. In this case, the evidence must show that the Veteran's hepatitis C infection risk factor(s), or symptoms were incurred in or aggravated by service. It must further be established by competent evidence that there is a relationship between the claimed in-service incident and the Veteran's current diagnosis of hepatitis C. Upon initial review of the claim by the Board in early 2012, it was concluded that the June 2007 and March 2008 VA reports (as summarized above) were inadequate inasmuch as there was no discussion as to the two documents dated (or date stamped) in 1974 where the Veteran refers to his illness of "hypititis." Accordingly, the Veteran's file was forwarded to an IME with increased familiarity in infectious diseases to address the etiology of the Veteran's hepatitis C. After examining the records and considering the Veteran's contested substance abuse history, as well as documents (without medical diagnosis) indicating possible hepatitis in 1974, the examiner was requested to provide an opinion, with supporting rationale, as to whether it is as least as likely as not that the Veteran's hepatitis C was caused or worsened by service. The expert examiner was to consider and discuss all evidence of record, to include 1974 documents as summarized above, as well as the available medical records which do not reflect actual medical diagnosis of hepatitis C until 2003. The expert examiner was to rank the documented risk factors relative to the probability that any current confirmed hepatitis C infection is etiologically related to the risk factor. Any opinion provided was to include an explanation of the basis for the opinion. The IME's response was added to the record in May 2012. In response to the question of whether it was at least as likely as not that the Veteran's hepatitis C was caused or worsened by service, the IME noted the following: It is not as least likely as not that the Veteran's hepatitis C was caused or worsened by service. The Veteran engaged in behavior that placed him at increased risk of contracting hepatitis C prior to his active duty. As his medical review, and statement regarding his March 1973 intake evaluation; some of these behaviors (heroin and cocaine by intravenous use) took place prior to his active duty. The Veteran stated that in March 1973, "heroin and cocaine by intravenous use was occurring two to three times weekly for the past 6 months." As such, these behaviors began approximately in September 1972 - which is before his active duty. IV drug use would be considered to be a very high risk behavior which more likely that [sic] not led to the Veteran's contraction of Hepatitis C. I also agree with the prior VA physician who stated in March 2008, "that the Veteran's hepatitis C is more likely than not the result of the Veteran's IV drug use and less likely than not due to his single tattoo." I do not believe the inoculation gun contributed any part of this Veteran's diagnosis of hepatitis C. Of note, hepatitis C remained undiagnosed in thousands of patients, many of them Veterans, as the virus was not discovered until 1989 - and no blood test was available for diagnosis prior to that time. In an addendum (dated by hand in August 2012 and added to the claims file that same month), the IME examiner provided the following: Regarding the Veteran's 1974 document: a. The undated and hand written letter stating that he "came down with hypititis" one month after enrollment at the University of Louisville has no bearing on my opinion. By "hypitis," I assume the Veteran is being described as having "hepatitis." Hepatitis is a non-specific description of liver inflammation with several possible etiologies (alcohol, medications, virus, trauma, ischemia), and it is not clear as to what extent the evaluation for this Veteran in 1974 actually was. Additionally, it would have required documentation of a history and physical examination, blood tests and further workup to confirm the diagnosis-these are not available to me. b. The August 1974 education attendance certification letter in which the Veteran indicated that his school enrollment was terminated on January 21, 1974 because of "illness/hypitis" also refers to the above-mentioned statement - it has no bearing on my opinion, and again refers to a non-specific illness and hepatitis. As already noted, recent submissions included various medical articles/excerpts obtained from medical treatises or from the internet regarding the risk factors for acquiring hepatitis infection. One article discusses the prevalence in selected groups of adults due to factors such as IV drug use. Analysis The injury alleged is exposure to hepatitis C virus through claimed mechanisms in-service, as detailed above. In this case, the evidence must show that the Veteran's hepatitis C infection risk factor(s), or symptoms were incurred in or aggravated by service. It must further be established by competent evidence that there is a relationship between the claimed in-service incident and the Veteran's current diagnosis of hepatitis C. Risk factors for hepatitis C include IV drug use, blood transfusions before 1992, hemodialysis, intranasal cocaine, high-risk sexual activity, accidental exposure while a health care worker, and various kinds of percutaneous exposure such as tattoos, body piercing, acupuncture with non-sterile needles, shared toothbrushes or razor blades. VBA letter 211B (98-110) November 30, 1998. The Veteran has acknowledged and STRs document that he used drugs including cocaine and heroin before and during service. Applicable regulations provide that no compensation shall be paid if the disability resulting from injury or disease in service is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C.A. §§ 105, 1110 (West 2002 & Supp. 2011). Direct service connection may be granted only when a disability or cause of death was incurred or aggravated in line of duty, and not the result of the veteran's own willful misconduct or, for claims filed after October 31, 1990, the result of his or her abuse of alcohol or drugs. 38 C.F.R. § 3.301 (2012). 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. Where drugs are used to enjoy or experience their effects and the effects result proximately and immediately in disability or death, such disability or death will be considered the result of the person's willful misconduct. Organic diseases and disabilities which are a secondary result of the chronic use of drugs and infections coinciding with the injection of drugs will not be considered of willful misconduct origin. (See July paragraph (d) of this section regarding service connection where disability or death is a result of abuse of drugs.) Where drugs are used for therapeutic purposes or where use of drugs or addiction thereto, results from a service-connected disability, it will not be considered of misconduct origin. 38 C.F.R. § 3.301(c)(3) (2012). An injury or disease incurred during active military, naval, or air service shall not be deemed to have been incurred in line of duty if such injury or disease was a result of the abuse of alcohol or drugs by the person on whose service benefits are claimed. For the purpose of this paragraph, alcohol abuse means the use of alcoholic beverages over time, or such excessive use at any one time, sufficient to cause disability to or death of the user; 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(d) (2012). "Willful misconduct" means an act involving conscious wrongdoing or known prohibited action. A service department finding that injury, disease or death was not due to misconduct will be binding on the Department of Veterans Affairs unless it is patently inconsistent with the facts and the requirements of laws administered by the Department of Veterans Affairs. (1) It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. (2) Mere technical violation of police regulations or ordinances will not per se constitute willful misconduct. (3) Willful misconduct will not be determinative unless it is the proximate cause of injury, disease or death. 38 C.F.R. § 3.1(n) (2012). In this case, as noted above, the Board has concluded that the June 2007 and March 2008 VA reports ( as summarized above), are inadequate as to etiology of hepatitis C inasmuch as these VA physicians did not discuss the two documents dated ( or date stamped) in 1974 upon which the Veteran referred to his "hypitis." Thus, additional opinion from an IME was requested for review of the entire claims file, to include discussion of the 1974 documents. The May 2012 IME report is entitled to great probative value as a definitive opinion with a supportive rationale was provided. The examiner noted that the Veteran engaged in behavior (heroin and cocaine by IV) that placed him at increased risk of contracting hepatitis prior to active duty. Moreover, this use was occurring often (two to three times weekly for a period of 6 months). This indicates that the Veteran's usage prior to service was not isolated or infrequent. The IME further opined that the Veteran's hepatitis C did not result from a "single" tattoo or due to the inoculation gun. Clearly, the obtainment of a single tattoo does not put one at risk as much as sustained IV drug use. This highly probative evidence outweighs the Veteran's July 2009 testimony. Moreover, as to the Veteran's contentions that his hepatitis C is related to in-service inoculations administered with a contaminated needle or air gun, according to the VA's Veterans Benefits Administration, while biologically possible, there have been no case reports of air gun transmission of hepatitis C. VA Fast Letter 04-13 (June 29, 2004). The Board finds that the lack of scientific evidence of hepatitis C transmission by air gun injections to be more probative on the issue than the Veteran's speculation that air guns cause hepatitis C. The representative argues that attempts should have been made to determine how many inoculations that the Veteran had during service, but the information summarized above, particularly the Fast Letter, makes such information irrelevant. In addition, it should be noted that according to medical records, the Veteran was first diagnosed with hepatitis C in 2003, about 30 years after his discharge from service. A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). As to the 1974 document regarding the Veteran having "hypitis," the IME found such to be little probative value. Specifically, it was pointed out that there was no evaluation report to review. Such a diagnosis would have required documentation of a history and exam, to include blood tests and further workup to confirm such a diagnosis. Also as to the letter in which the Veteran's enrollment was terminated in 1974 due to "illness/hypitis," the IME asserted that this had bearing on his opinion as it referred to a "nonspecific illness and hepatitis." The Board agrees that these documents are of little probative value. It would be speculation to assume that hepatitis was clinically diagnosed at that time based on the above notations in the 1974 documents. Actual medical documentation would be necessary. In short, the most probative medical opinion concerning the etiology of the Veteran's hepatitis C ascribes it to IV drug use, which as discussed, to the extent that this includes in-service IV drug use, constitutes misconduct. As for any drug use contemporaneous with service, the law clearly prohibits service connection for a disease (e.g., hepatitis C), resulting from willful misconduct due to the abuse of illegal drugs. 38 U.S.C.A. §§ 105(a), 1110 (West 2002 & Supp. 2011); 38 C.F.R. § 3.301(a) (2012). The Veteran and his attorney representative have maintained that the Veteran's use of IV drugs during service was isolated. As to this matter, the Board must assess his credibility. Recently, the Federal Circuit issued Davidson v. Shinseki, 581 F. 3d at 1313, which stated that 38 U.S.C. § 1154(a) requires that the VA give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability. See also Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Moreover, the VA may not simply disregard lay evidence because it is unaccompanied by contemporaneous medical evidence. The Board does not doubt the credibility of the Veteran in reporting his beliefs that his current hepatitis C was caused by use of IV drugs during his military service. The Board also believes that the Veteran is sincere in expressing his opinion with respect to the etiology of the disorder. However, the matter at hand does not involve medical assessments that require medical expertise, but a determination of whether the Veteran's actions constitute "willful misconduct." STRs show that the Veteran admitted to long-term (at least 6 months) IV use of cocaine and heroin in a March 1973 intake evaluation while admitted to the Naval Drug Rehabilitation Center. In fact, the admission had stemmed from his arrest for drug paraphernalia possession. However, in the July 2009 hearing the Veteran testified that such IV drug use was limited to the hospital setting and stated that he used in an effort to fit in and not be ostracized. These later statements are clearly inconsistent with his earlier accounts and the contemporaneous records, and are therefore of less credibility. Not only may the Veteran's memory be dimmed with time, but self interest may be playing a role in his recent statements. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (interest may affect the credibility of testimony); cf. Pond v. West, 12 Vet. App. 341, 346 (1999). As to this matter, the Board places far greater weight of probative value on the Veteran's earlier statements regarding the nature of drug use, than it does on the Veteran's more recent statements. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the veteran). The Veteran reported no other known risk factors for hepatitis C in service, competent (medical) evidence indicates that his disability is likely the result of IV drug use in-service. As the most probative medical evidence of record weighs against the Veteran's claim, and as a matter of law, he is not entitled to service connection for Hepatitis C due to his illicit drug use in service; service connection for Hepatitis C is not warranted. 38 C.F.R. §§ 3.1, 3.301 (2012). Further, it is noted that the medical treatise/internet submissions have been reviewed. These submissions, however, are very general in nature and do not address the specific facts of the Veteran's claim before the Board. As this generic medical journal or treatise evidence does not specifically state an opinion as to the relationship between the Veteran's current hepatitis, it is insufficient to establish the element of medical nexus evidence. See Sacks v. West, 11 Vet. App. 314 (1998). The Board has considered the doctrine of reasonable doubt, but for the reasons just expounded, finds it to be inapplicable, as the record does not provide an approximate balance of negative and positive evidence on the merits. 38 C.F.R. § 3.102 (2012). ORDER Entitlement to service connection for hepatitis C is denied. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs