Citation Nr: 1337483 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 10-26 406 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1971 to June 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which denied service connection for hepatitis C. In August 2011, the Veteran testified at a personal hearing before the undersigned Acting Veterans Law Judge at the RO. Additionally, the Veteran through his testimony, with the assistance of his representative, demonstrated actual knowledge of the elements necessary to substantiate the claims. See Bryant vs. Shinseki, 23 Vet. App. 488 (2010). A copy of the hearing transcript has been associated with the claims folder. The Board also notes that, in addition to the paper claims files, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims files or are irrelevant to the issue on appeal. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim on appeal has been accomplished. 2. Competent evidence of record reflects that hepatitis C is the result of the Veteran's misconduct, in-service and post-service intravenous drug use, and not the result of any event, injury, or disease otherwise incurred in service. CONCLUSION OF LAW Hepatitis C was not incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VA's notice requirements apply to all five elements of a service-connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In cases that concern the assignment of a disability rating, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Id. Notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). A pre-rating June 2008 letter notified the Veteran of the information and evidence needed to substantiate his claim for service connection for tinnitus. Consistent with Dingess, the letter also notified the Veteran that a disability rating and an effective date are assigned where a disability is determined to be service-connected. After affording the Veteran reasonable opportunity to respond, his claim was adjudicated in the RO's November 2008 rating decision. Thus, because the VCAA notice that was provided before service connection was granted was legally sufficient, VA's duty to notify has been satisfied. In addition, VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the Veteran's claim. His service treatment records, claims submissions, lay statements, identified and relevant VA treatment records have been associated with the record. The Veteran was also afforded a VA examination in May 2010. This examination, along with the other evidence of record, is fully adequate for the purposes of determining the nature and etiology of the Veteran's claimed hepatitis C. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. II. Laws and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303. Service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. See 38 C.F.R. § 3.303(d). Service connection for a disability on the basis of the merits of such claim is focused upon (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. See Cuevas v. Principi, 3 Vet. App. 542 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). In general, for service connection to be granted for hepatitis C, the evidence must show that a veteran's hepatitis C infection, risk factor(s), or symptoms were incurred in or aggravated by service. The evidence must further show by competent medical evidence that there is a relationship between the claimed in-service injury and the veteran's hepatitis C. 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 211A (01-02) (April 17, 2001). A VA Fast Letter (FL) issued in June 2004 (FL 04-13, June 29, 2004) identified "key points" that included the fact that hepatitis C is spread primarily by contact with blood and blood products, with the highest prevalence of hepatitis C infection among those with repeated, direct percutaneous (through the skin) exposure to blood (i.e., intravenous drug users, recipients of blood transfusions before screening of the blood supply began in 1992, and hemophiliacs treated with clotting factor before 1987). Another "key point" was the fact that hepatitis C can potentially be transmitted with the reuse of needles for tattoos, body piercing, and acupuncture. 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 abuse of alcohol or drugs. See 38 C.F.R. § 3.301(a). 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 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. See 38 C.F.R. § 3.301(c)(3). In February 1998, VA General Counsel concluded that, with respect to claims filed after October 31, 1990, 38 U.S.C.A. § 105(a), as amended by section 8052 of OBRA, and as implemented by 38 C.F.R. § 3.1(m), precluded service connection of a disability resulting from alcohol or drug abuse on the basis of the disability's incurrence or aggravation in service. See VAOPGCPREC 2-98. Finally, in a claim for service connection, the ultimate credibility or weight to be accorded evidence must be determined as a question of fact. The Board determines whether (1) the weight of the evidence supports the claim, or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim: the appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2010); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. Factual Background and Analysis The Veteran contends that he currently suffers from hepatitis C as a result of his active military service, including an in-service tattoo. Considering the claim in light of the above-noted legal authority, the Board finds that the weight of the evidence is against the claim. An April 1974 in-service treatment reports indicates a diagnosis of hepatitis and hepatitis B. The report indicated that the Veteran was a known intravenous (IV) heroin user, and his last use was in February 1974. The Veteran admitted he was a user of heroin though he denied being addict. The Veteran was subsequently transferred to the Naval Drug Rehabilitation Center for further treatment in May 1974. In a private treatment record dated in September 1997, the examiner noted that the Veteran is serologically positive for hepatitis C, suggestive of infection exposure to hepatitis C (risk factors include remove IV drug use.) The Veteran admitted to remote history of IV drug use greater than 30 years ago. During a May 2010 VA examination, the Veteran reported he was verbally informed of a hepatitis C infection while hospitalized at Quantico, Virginia in 1974. The examiner noted that the most significant risk factor at that time was having a history of heroin use, reporting his last use in February 1974. The Veteran denied recent IV drug use, however, the examiner noted that the claims file records indicate that he does have a history of heroin use dated in 1974. He has a significant history of illicit drug use and alcohol dependence with full remission for four years. He has several tattoos and states that they were obtained at licensed parlors. He does not have any piercings. After a physical examination, the examiner determined that the Veteran's current hepatitis C diagnosis is more likely than not the same condition he experienced during his military hospitalization in 1974. The examiner noted that the Veteran has documented evidence of a hepatitis episode from the time of military service with a history of significant risk factor (IV drug use) and current chronic hepatitis C. The substantial evidence that points to chronic hepatitis infection from IV drug use is more than coincidental, especially in light of only partially recovery documentation form that time period. In his substantive appeal dated in June 2010, the Veteran asserted that he has never used heroin or other IV injected drugs. The Veteran submitted multiple lay statements from friends and family attesting that the Veteran never used IV drugs. The Veteran also submitted results from a polygraph test in which he asserted he never used IV drugs while in the Marine Corps and he was not an IV drug user between 1971 and 1974. In an August 2010 private treatment record, the Veteran reported a history of hepatitis C in the 1970s while in the Marine Corps. He denied a history of drug use and reported he suspects the most likely source was a tattoo needles in 1970 or thereafter. Upon physical examination, the examiner noted that there were no scars or tracks or old abscesses or any other signs of present or past IV drug use. The diagnosis was hepatitis C. Based on a review of the evidence, the Board finds that service connection for hepatitis C is not warranted. While the Veteran has been diagnosed with hepatitis C, the evidence fails to show that it is related to his military service other than to illicit drug use. The Veteran has only acknowledged hepatitis C risk factors of tattoo during service. He previously acknowledged intravenous heroin use, but more recently denied it. The Board has considered the Veteran's assertions and the assertions of his friends and family that he did not use IV drugs during active service. Credibility, however, is an adjudicative and not a medical determination. The Board has 'the authority to discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence.' Madden v. Brown, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In this case, the 'inherent characteristics' of the Veteran's current statements as to his drug use in service are inconsistent with the objective medical record and the Veteran's own contemporaneous statements. The only evidence which supports the Veteran's claim is that of the August 2008 private examiner which found no physical signs of present or past IV drug use. However, the examiner gave no opinion relating the Veteran's hepatitis C to military service and considered the Veteran's assertion that he had never used IV drugs (a fact already found not credible). Factors for assessing the probative value of a medical opinion are the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444, 448-49 (2000). In contrasting these opinions, the Board is cognizant that the United States Court of Appeals for Veterans Claims has stressed that '[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion.' See generally Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board finds the May 2010 VA medical opinion to be of significantly more probative value than the August 2010 private opinion as to whether the Veteran has hepatitis C due to drug use in service. Among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The reviewer considered the Veteran's claims file, his contentions, the medical evidence of record, and conducted a complete physical examination, but concluded that the Veteran's hepatitis was due to IV drug use in service. Furthermore, a complete and thorough rationale was provided for the opinion rendered. Specifically, the examiner noted the Veteran's in-service treatment and statements admitting in-service IV drug use. The examiner's conclusion was fully explained and consistent with the credible evidence of record. The Veteran also has a self-interest in denying his history of illicit drug use. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence). Given the Veteran's lack of credibility and his self-interest in denying prior drug use, the Board does not consider his recent denials of prior heroin use to be credible. Caluza v. Brown, 7 Vet. App. at 510-511. For these reasons, the Board finds the weight of the evidence to show that the Veteran has a history of heroin abuse, despite his recent denial. Given the evidence showing a history of intravenous heroin abuse, it is a risk factor for consideration. To the extent any heroin use occurred during service, 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 VAOPGCREC 7-99 (1999), 64 Fed. Reg. 52,375 (June 9, 1999); VAOPGCREC 2-98 (1998), 63 Fed. Reg. 31, 263 (February 10, 1998). Service connection may not be granted for any disease resulting from it. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.1(n), 3.301 (2012); see also id. Overall, the evidence does not show an in-service etiology for hepatitis C that is not the result of the Veteran's willful misconduct. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim. The benefit-of-the-doubt doctrine is therefore not applicable and the claim for service connection for hepatitis C must be denied. See 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. at 55-57. ORDER Entitlement to service connection for hepatitis C is denied. ____________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs