Citation Nr: 1329291 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 10-19 733 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Veteran represented by: Catholic War Veterans of the U.S.A. ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty from April 1970 to May 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in October 2009 of a Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In October 2012, the Board remanded the appeal for further development, and it now returns to the Board for appellate review. FINDING OF FACT Hepatitis C did not have its onset during service and is not the result of disease or injury incurred during the Veteran's military service. CONCLUSION OF LAW The criteria for service connection for Hepatitis C are not met. 38 U.S.C.A. §§ 1101, 1110, 1137, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.301, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Stegall Considerations This case was remanded by the Board in October 2012. The United States Court of Appeals for Veterans Claims (Court) has held "that a remand by this Court or the Board confers on the Veteran or other claimant, as a matter of law, a right to compliance with the remand orders." See Stegall v. West, 11 Vet. App. 268, 271 (1998). The purpose of the October 2012 remand was to obtain an additional opinion as to the etiology of the Veteran's hepatitis C. This opinion was received in February 2013. Therefore, the Board determines that the RO/AMC substantially complied with the Board's orders in the prior remand, and that the Board may now proceed with adjudication of the claim. II. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes certain duties upon VA to notify the claimant of the shared obligations of the claimant and VA in developing his or her claim and to assist the claimant by making reasonable efforts to obtain relevant evidence in support of the claim. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). VA must inform a claimant about the information and evidence not of record that is necessary to substantiate the claims, the information and evidence that VA will seek to provide, and the information and evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Additionally, in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that VCAA notice requirements also apply to the evidence considered in determinations of the degree of disability and effective date of the disability once service connection has been established. VCAA notice must be provided before the initial unfavorable AOJ decision on the claim for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was provided with a VCAA notification letter in July 2009 with regard to the service connection claim, prior to the initial unfavorable AOJ decision issued in October 2009. This letter informed the Veteran of the evidence necessary to establish service connection, of how VA would assist in developing the claim, and of his and VA's obligations in providing such evidence for consideration. Additionally, it addressed the evidence necessary to substantiate disability rates and effective dates. Thus, the Veteran received all necessary notice under the VCAA prior to initial adjudication of the claim. Accordingly, the Board determines that the content requirements of VCAA notice have been met and the purpose of such notice, to promote proper development of the claim, has been satisfied. See Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). Based on the above, the Board finds that further VCAA notice is not necessary prior to the Board issuing a decision. VA has also fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claim. The Veteran's service treatment records, private treatment records, and the report of a September 2009 VA examination with February 2013 addendum were reviewed by both the AOJ and the Board in connection with adjudication of the claim. The Board notes that the Veteran identified treatment within the Battle Creek VA Medical Center (VAMC) during the year 1992, but a request for the records yielded a negative response. The Veteran was advised that the records were not available and asked to submit them himself in April 2007. No records were received. The Board further notes that records for the year 1992 were received from the Ann Arbor VAMC, including records for inpatient treatment for several months. In light of the above, the Board finds that no further efforts to retrieve records from the Battle Creek VAMC for the year 1992 are necessary. With regard to the VA examination and opinions, the Board notes that once VA undertakes to obtain a VA examination when developing a service connection claim, even if not statutorily obligated to do so, VA must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In this case, the examiner reviewed the claims file, noting relevant documents in treatment evidence, documented the Veteran's subjective complaints and medical history, and examined the Veteran. Although the Veteran was provided a VA examination related to his hepatitis C in September 2009, the Board concluded that the associated opinion did not adequately contemplate all of the Veteran's potential risk factors for hepatitis C infection. Thereafter, in February 2013, the same examiner provided an opinion that considered all of the Veteran's risk factors and their likelihood of resulting in hepatitis C infection in the Veteran. There is nothing to suggest that the examiner's opinion is not sufficiently based on the facts of the case or that he reached an arbitrary conclusion. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159 (c)(4). In light of the above, the Board concludes that the medical evidence of record is sufficient to adjudicate the Veteran's claim without further development and additional efforts to assist or notify the Veteran in accordance with VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant). Therefore, the Board determines that the Veteran will not be prejudiced by the Board proceeding to the merits of the claim. III. Analysis Service connection may be granted for disability arising from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a). Service connection may also 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). A finding of direct service connection requires evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under section 3.303(b), an alternative method of establishing the second and/or third Caluza element is through a demonstration of continuity of symptomatology. See Savage v. Gober, 10 Vet. App. 488 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances lay evidence of a nexus between the present disability and the post-service symptomatology. See Savage, 10 Vet. App. at 495-96; Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection). 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); see also 38 U.S.C.A. § 105 (West 2002); 38 C.F.R. § 3.1(m). VA's General Counsel has confirmed that 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 benefits for claims filed after October 31, 1990. See VAOPGCPREC 7-99; VAOPGCPREC 2-98. The Veteran contends that his hepatitis C infection was incurred in service through either air gun inoculations or while working as an ambulance driver. The Veteran admits to having a tattoo that he received in service, and also that he has a history of intravenous (IV) and intranasal drug use, but insists that he only used clean needles, which were available to him as an ambulance driver. Thus, while he recognizes that he has multiple risk factors, he argues that his current hepatitis C infection is more likely a result of the air gun inoculations or his duties as an ambulance driver. The record reflects that the Veteran carries a diagnosis of chronic hepatitis C infection, diagnosed by biopsy in 2004. Therefore, the Veteran has a current diagnosis with respect to this claim. The Veteran's service treatment records contain no complaint or symptoms associated with hepatitis C. Moreover, there is no competent and probative evidence associating the hepatitis C infection with the Veteran's military service. A September 2009 VA examiner opined that it is less likely as not that the Veteran's hepatitis C is due to his military occupational specialty (MOS) as an ambulance driver or air gun inoculations. The rationale for this opinion was that the Veteran has other risk factors that are more inclined to cause hepatitis C than his role as an ambulance driver in a noncombat area. Specifically, the examiner noted the Veteran's use of IV drugs and intranasal cocaine, which are high risk for the development of hepatitis C. He stated that the Veteran's MOS and air gun inoculations have not been established as a cause of transmission of hepatitis C. The same examiner offered another opinion in February 2013 as requested by the October 2012 remand. In this opinion, the examiner stated that it is at least as likely as not that the Veteran's IV drug use and/or nasal cocaine use in and after military service is related to his hepatitis C by way of viral transmission. The examiner indicated that, while air gun inoculations have been raised as a possible source of hepatitis C in some medical literature, they do not have nearly the recognition or acceptance as a possible cause of hepatitis C as IV drug use. Therefore, he concluded that it is less likely as not that air gun inoculations are related to the Veteran's hepatitis C. Regarding, the Veteran's MOS as an ambulance medic, the examiner again noted that this work is not a recognized risk factor in the transmission of hepatitis C and so is less likely as not related to the Veteran's hepatitis C. Finally, with respect to the tattoo the Veteran got in military service, the examiner found that it is a risk factor for hepatitis C, but that the longstanding drug use is the more likely the cause of the Veteran's hepatitis C infection. Based on the above, the Board determines that the Veteran's hepatitis C is more likely a result of his long history of drug use than any of his other identified risk factors and possible causes. The Board has considered the Veteran's statements in support of his claim, but while the Veteran is competent to speak to facts capable of lay observation, such as his risk factors for hepatitis C infection, he is not competent to determine which of those factors caused the infection. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). In addition, the Board has reviewed the article submitted by the Veteran that discusses the grant by an RO of another veteran's claim for service connection for hepatitis C on the basis of jet injectors having been used for inoculations, as well as cites to a comment by Dr. Deyton, a VA physician and researcher, who stated that anyone who had inoculations with jet injectors is at risk of hepatitis C infection. The Board first observes that neither the RO decision referenced nor Dr. Deyton's comment directly addresses this Veteran's case and the facts specific to his claim. Moreover, neither the VA examiner nor the Board has found that the Veteran's air gun inoculations posed no risk for hepatitis C infection, but rather that they posed less risk than his extensive history of IV and intranasal drug use, which are a far better recognized and the more likely cause of hepatitis C infection. The Veteran has not provided a medical opinion specific to his case that contradicts the opinion of the VA examiner. In light of the above, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for hepatitis C in that it is more likely than not that his hepatitis C resulted from his drug use. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Drug use is considered to be willful misconduct, and so any disability that results from the drug use may not be service-connected. 38 C.F.R. §§ 3.1(n), 3.301(d) (2012). Therefore, the claim must be denied. ORDER Entitlement to service connection for hepatitis C is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs