Citation Nr: 1618473 Decision Date: 05/09/16 Archive Date: 05/19/16 DOCKET NO. 12-28 438 ) 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: The American Legion ATTORNEY FOR THE BOARD James R. Springer, Associate Counsel INTRODUCTION The Veteran had active service from March 1971 to April 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. FINDING OF FACT The competent and probative evidence of record demonstrates that the Veteran's Hepatitis C is related to his intravenous drug abuse during active service. CONCLUSION OF LAW The criteria for service connection for Hepatitis C are not met. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.301, 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015). Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA 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); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, a December 2010 letter, sent prior to the initial unfavorable decision issued in July 2011, advised the Veteran of the evidence and information necessary to substantiate his service connection claim, as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, such letter advised him of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting in the procurement of service treatment records and pertinent post-service treatment records, as well as providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this regard, the Veteran's service treatment records, as well as post-service VA and private treatment records, including treatment records from Health Partners, have been obtained and considered. The Board notes that, in January 2011, the Veteran indicated that he received treatment from Regions Hospital in St. Paul, Minnesota, and he provided the necessary authorization to allow VA to obtain those records. In February 2011, Regions Hospital responded that no treatment records pertaining to the Veteran were on file. In a March 2011 statement, the Veteran acknowledged that Regions Hospital did not have any treatment records pertaining to his hepatitis C. Thus, there does not appear to be any additional, outstanding records that have not been requested or obtained. Additionally, in connection with his claim, the Veteran was afforded a VA examination in August 2012 to determine the nature and etiology of his hepatitis C, and an addendum opinion was obtained in January 2013. The Board finds that the VA examination report and the addendum opinion are adequate to decide the Veteran's claim, as they are predicated on an interview with the Veteran; a complete review of the record, to include his service treatment records; and physical examination with diagnostic testing. The examination report and the addendum opinion, when taken together, consider all pertinent evidence of record, to include the Veteran's lay statements, and provided a complete rationale supported by the medical evidence of record. Furthermore, the examination report and the addendum opinion offer clear conclusions with supporting data, as well as a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion . . . must support its conclusion with an analysis that the Board can consider and weigh against contrary opinion."). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination and opinion has been met. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify in accordance with the 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); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claim for service connection for hepatitis C. I. Analysis The Veteran contends that he contracted hepatitis C during active duty as a result of a tattoo on his bicep. Alternatively, the Veteran contends that he contracted hepatitis C as a result of forced intravenous drug use during service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability, in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. For claims filed after October 31, 1990, direct service connection may be granted only when a disability was incurred or aggravated in the line of duty, and was not the result of willful misconduct or the result of abuse of alcohol or drugs. 38 U.S.C.A. § 105 (West 2014); 38 C.F.R. § 3.301(a) (2015). The isolated and infrequent use of drugs 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). 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. Id. Risk factors for hepatitis C include intravenous 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, and shared toothbrushes or razor blades. VBA Letter 211B (98-110) November 30, 1998. Additionally, a June 2004 VA Fast Letter addresses the alleged relationship between immunization with air gun injectors and hepatitis C infection. VBA Fast Letter (04-13) June 29, 2004. Specifically, that Fast Letter notes that transmission of the hepatitis C virus with air gun injections is 'biologically plausible,' notwithstanding the lack of any scientific evidence documenting such relationship. Lay evidence is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition is capable of lay observation and may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature." Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although a lay person is competent in certain situations to provide a diagnosis of a simple condition, a lay person is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Likewise, mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). The Board must weigh any competent lay evidence and make a credibility determination as to whether it supports a finding of service incurrence; or, if applicable, continuity of symptomatology; or both, sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Layno v. Brown, 6 Vet. App. 465 (1994). The credibility of lay evidence may not be refuted solely by the absence of corroborating contemporaneous medical evidence, but it is a factor. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Other credibility factors are the lapse of time in recollecting events attested to, prior conflicting statements as opposed to consistency with other statements and evidence, internal consistency, facial plausibility, bias, interest, the length of time between alleged incurrence of disability and the earliest or first corroborating medical or lay evidence thereof, and statements given during treatment (which are usually given greater probative weight, particularly if close in time to the onset thereof). Caluza, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran's January 1971 entrance examination noted no identifying body marks, scars, or tattoos. In a June 1973 service treatment record, the Veteran complained of feeling nauseous after breakfast. Initially, he denied using drugs, but then stated that he quit using over a month prior and that he was not experiencing any "joneses." However, the Veteran stated that during his period of drug use, he injected had heroin. Upon examination, his eyes and skin were jaundiced and his liver was palpable. He was diagnosed with icteric hepatitis. In a July 1973 narrative summary, the Veteran was noted to have a history of intravenous heroin use for two to three months, as well as the use of amphetamines before that. He was diagnosed with improper use of drugs, including heroin and amphetamines, as well as hepatitis as a result of improper drug use. His March 1974 discharge examination noted a tattoo on his right bicep. An October 2010 VA treatment record noted that the Veteran's medical problems included hepatitis C as a result of intravenous drug use in the military. In a January 2011 Risk Factors for Hepatitis Questionnaire, the Veteran indicated that he used intervenous drugs in service for about six months. He also reported getting a tattoo in service. In his June 2012 notice of disagreement, the Veteran alleged that drugs were prevalent where he was stationed in Germany, and that military and medical personnel would injection people with heroin in an attempt to get them "hooked." He stated that the first time he used drugs, he was injected while he slept and that, had he been awake, he would have refused. He stated that he had never used any other drugs prior to this. Once he was injected, he stated that he became addicted for six months. In August 2012, the Veteran underwent a VA examination to address the nature and etiology of his hepatitis C. He was diagnosed with hepatitis C with an onset date of 1973. During the examination, the Veteran stated that his sergeants put sedatives in bananas, which he was forced to eat, and they injected him with drugs while he slept. Thereafter, he became addicted and started to inject himself with amphetamines and heroin, until he contracted hepatitis C. After reviewing the Veteran's medical history of hepatitis C treatment, the examiner opined that it was less likely than not that the Veteran's hepatitis C was incurred in or caused by a tattooing because the record did not show that he got a tattoo in service. Instead, the examiner determined that the Veteran's diagnosis of hepatitis C, and his hospitalization in service, was the result of intravenous drugs use, including heroin and amphetamines, prior to his hospitalization. In his October 2012 substantive appeal, the Veteran argued that his use of drugs did not constitute misconduct because it was isolated and infrequent. He stated that he used drugs only three times-the first time against his will-in a two month period. He stated that he never became addicted to drugs, and that he had no more instances of illegal drug use thereafter. In a November 2012 statement, the Veteran's representative argued that the August 2012 VA examination was inadequate because the examiner failed to address the Veteran's in-service tattoo. In a January 2013 VA medical opinion, a different VA examiner noted that, after reviewing the Veteran's claims file, she was of the opinion that it was at least as likely as not that the Veteran's hepatitis C was related to this intravenous drug use in service, and that it was less likely than not that the Veteran's hepatitis C was the result of the tattoo he received in service. The examiner reasoned that intravenous drugs use for six months was more likely the cause of transmission because, according to the Centers for Disease Control, the most important risk factor for hepatitis C was injectable drug use and persons with hemophilia treated with products made prior to 1987. Since the latter was relatively uncommon in the military, since such individuals would have been accepted into service, the examiner determined that the Veteran's hepatitis C was related to his intravenous drug use. While the examiner noted risks factors other than intravenous drug use, including tattooing, she stated that the risk of contract hepatitis C from the other factors was substantially less, and the risk from tattooing and the use of air guns posed the lowest risk. Based on the evidence of record, the Board finds that the preponderance of the evidence of the record demonstrates that the Veteran's hepatitis C is related to his intravenous drug abuse during active service, and that such abuse constituted willful misconduct. As a result, the Veteran is barred from establishing service connection for this disability. See 38 C.F.R. § 3.301. In this regard, the Board finds that the August 2012 VA examination report and the January 2013 addendum opinion are the most competent evidence addressing the nature and etiology of the Veteran's hepatitis C. As noted above, the examination report and the addendum opinion offer clear conclusions with supporting data, as well as a reasoned medical explanation connecting the two. See Nieves-Rodriguez, supra. To the extent that the Veteran and his representative argue that the Veteran's hepatitis C is related to his in-service tattoo, the Board finds that the etiology of hepatitis C is too complex an issue, one typically determined by persons with medical training, to lend itself to lay opinion evidence. See Davidson, supra; Jandreau, supra. The diagnosis of hepatitis C, and/or the etiology thereof, cannot be made by the Veteran or his representative as lay persons since they have not demonstrated the expertise in medical matters and, therefore, they are not competent to render a medical etiology of hepatitis C in this case. Even if the Veteran or his representative could provide a competent opinion as to etiology in this instance, the Board finds that the reasoned opinion of a medical professional is more probative than the lay assertions. The VA examiner has medical eduction, training, and expertise that the Veteran and his representative are not shown to have. The Board notes the Veteran's argument that his use of illegal drugs was isolated and infrequent and, therefore, did not constitute willful misconduct. See October 2012 VA Form 9. However, the Board finds that the Veteran's statements concerning the nature of his in-service drug use are not credible as he has provided a number of inconsistent statements concerning his in-service drug use. As noted above, in addition to evaluating competency, the Board has a duty to assess the credibility of the evidence of record. Smith v. Derwinski, 1 Vet. App. 235, 237-38 (1991); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal consistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza, supra. Although the Veteran argued in his October 2012 substantive appeal that he never was addicted to drugs while in service in an attempt to demonstrate that his drug use never constituted willful misconduct under 38 C.F.R. § 3.301(c)(3), in his June 2012 notice of disagreement and his August 2012 VA examination, he stated that he was addicted to drugs in service. Furthermore, the Veteran provided inconsistencies regarding the extent of his drug use in service. Specifically, while he reported only using three times in service over a two month period in his October 2012 substantive appeal, his service treatment records and other statements give different timelines and frequencies. As noted above, the June 1973 service treatment record reflected use of heroin for two to three months, and use of amphetamines prior to that. In his January 2011 Risk Factors for Hepatitis Questionnaire and his June 2012 notice of disagreement, the Veteran reported use of drugs for six months. Finally, the Veteran's claim that he was injected with drugs against his will is also not credible, as it was made only after the veteran was informed that his drug abuse during service barred service connection for his hepatitis C. The Veteran's service treatment records are completely silent as to any allegation of forced drug use. As a result, the Board finds that the Veteran's lay statements concerning his in-service drug abuse are not credible. Additionally, as the Board has determined that the Veteran's drug abuse in service constituted willful misconduct, hepatitis C resulting from drug abuse shall not be deemed to have been incurred in the line of duty. 38 C.F.R. §§ 3.1(m), 3.301(d). In this regard, while 38 C.F.R. § 3.301(c) suggests organic disease incurred coincident with the chronic use of drugs is not willful misconduct, the regulation then specifically directs to 38 C.F.R. § 3.301(d) for purposes of determining service connection where a disability is a result of abuse of drugs. Both 38 C.F.R. §§ 3.301(a) and 3.301(d) prohibit service connection for diseases incurred during active service resulting from the abuse of drugs. As any disease resulting from his abuse of illegal drugs is not considered to be in the line of duty pursuant to 38 C.F.R. § 3.301(d), service connection for the claimed hepatitis C as a result of illegal drug use in service cannot be granted. 38 C.F.R. § 3.301(a). For the foregoing reasons, the Board finds that service connection for hepatitis C is not warranted. In arriving at the decision to deny this claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against this claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for hepatitis C is denied. ____________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs