Citation Nr: 1734591 Decision Date: 08/22/17 Archive Date: 08/30/17 DOCKET NO. 11-24 038 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD D. Chad Johnson, Associate Counsel INTRODUCTION The Veteran had active service from August 1973 to August 1976. This matter comes to the Board of Veterans' Appeals (Board) from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran's claims file was subsequently transferred to the RO in Roanoke, Virginia. During the pendency of the Veteran's appeal, an April 2017 Board decision reopened the Veteran's claim of entitlement to service connection for hepatitis C and remanded the matter for additional development, to include an adequate VA opinion. As the requested development has been completed, the matter is properly returned to the Board for adjudication. See Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The Veteran's hepatitis C did not have onset during active service, was first diagnosed many years after active service, and is not otherwise related to active service, to include air gun inoculations therein; to the extent his hepatitis C is related to in-service IV drug use, such drug use constitutes willful misconduct. CONCLUSION OF LAW The criteria for service connection for hepatitis C have not been met. 38 U.S.C.A. §§ 105, 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.301, 3.303 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION I. Due Process Neither the Veteran nor his representative has not raised any specific issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). To the extent that a June 2017 statement submitted by the Veteran's representative notes that the Veteran is not satisfied with the May 2017 VA examination and the findings of the examiner, the Board finds such a general assertion of inadequacy insufficient to overcome the presumption of regularity with respect to the May 2017 VA examination. See Ashley v. Derwinski, 2 Vet. App. 307 (1992). Moreover, the Board finds the May 2017 VA examiner's opinion to be well supported by an adequate rationale, and entitled to great probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Additionally, the Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, regarding the Veteran's claim on appeal. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). II. Service Connection - Hepatitis C Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303(a) (2016). "To establish a right to compensation for a present disability, a Veteran must show: '(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service'-the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). For certain chronic disorders, including cirrhosis of the liver, service connection may be granted on a presumptive basis if the disease is manifested to a compensable degree within one year following service discharge. 38 U.S.C.A. §§ 1101, 1112 (West 2014); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2016). Additionally, for chronic diseases defined by 38 C.F.R. § 3.309(a) and shown in service or by a continuity of symptoms after service, the disease shall be presumed to have been incurred in service. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In order to show a chronic disease in service, the record must reflect a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Where a chronic disease has been incurred in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required in order to establish entitlement to service connection. Id. Even where service connection cannot be presumed, service connection may still be established on a direct basis. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). 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 the Veteran's own willful misconduct or the result of the Veteran's abuse of alcohol or drugs. 38 U.S. C .A. § 105 (West 2014); 38 C .F.R. § 3.301(a) (2016). 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) (2016). 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. The Veteran claims entitlement to service connection for hepatitis C, which he has claimed as due to isolated intravenous drug use and/or air gun vaccinations during active service. However, after consideration of the evidence of record, and as discussed below, the Board finds that the preponderance of the evidence weighs against the Veteran's claim of entitlement to service connection for hepatitis C. Significantly, service treatment records do not document any complaints, treatment, or diagnosis of hepatitis C. In particular, physical examinations at service enlistment in June 1973 and service discharge in June 1976 document normal relevant clinical evaluations, and the Veteran denied any related conditions, including jaundice, hepatitis, or reactions to serum, drugs, or medicine, within concurrent reports of medical history. Post-service private treatment records from May 2005 first document that the Veteran was positive for hepatitis C, and this is consistent with subsequent private and VA treatment records confirming his diagnosis. Notably, however, the evidence of record does not document cirrhosis of the liver with onset during active service or within the first post-service year; therefore, presumptive service connection for hepatitis C resulting in cirrhosis is not warranted. See 38 C.F.R. §§ 3.307, 3.309. To the extent that the Veteran has consistently reported that he was diagnosed with hepatitis C in 1976 after he tried to donate blood, the Board finds such statements to be less probative, as the Veteran lacks medical expertise to render a diagnosis of hepatitis C, see Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); moreover, such statements are inconsistent with, and unsupported by, the additional evidence of record. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran initially asserted that his hepatitis C is C due to intravenous (IV) drug use while serving in the Army at Fort Carson, Colorado. Notably, the Veteran has been inconsistent in his reports as to how often he used IV drugs during active service, which lowers the probative value afforded to his statements. See id. For example, in July 2007, he reported that he shared dirty needles with a roommate and shot up heroin from January to March 1976. In July 2009, he reported using heroin on two separate occasions. In September 2011, he stated that he experimented with IV drug use only once on active duty for recreational use. Similarly, in January 2013, he asserted that his hepatitis C was due to one-time IV drug use. Moreover, the buddy statements submitted by the Veteran in support of his claim are likewise inconsistent, and of limited probative value, regarding the Veteran's in-service drug use. One July 2009 statement by a former roommate indicates that he saw the Veteran using drugs and after a discussion, the Veteran indicated he would not do it anymore, so the roommate thought that was the end of it. Another July 2009 statement reports that a fellow soldier and the Veteran both used drugs while stationed at Fort Carson in 1976. Post-service private treatment records from August 2008 document the physician's notation that the Veteran "apparently" contracted viral hepatitis back in the late 1970s related to single IV drug use. In September 2008, it was noted that the Veteran had "presumed exposure" in the 1970s. Upon VA examination in October 2009, the Veteran reported various risk factors for hepatitis C during active service, including that he used IV drugs while in the military from 1975 to 1976 and that he engaged in unprotected sex from 1973 to August 1976. The examiner concluded that the Veteran's hepatitis C was most likely caused by or a result of his IV drug use based on the most accepted mode of transmission for hepatitis C, which is blood borne by either IV drug use or blood transfusion. The examiner noted that unprotected sex has also been cited as a possible mode of transmission, but it was not as common as IV drug use. This opinion was reiterated in March 2010, following a review of the claims file. Upon VA examination in January 2013, a VA examiner opined that the Veteran's hepatitis C was less likely than not related to active service, including air gun inoculations, due to the Veteran's history of IV drug use and unprotected sex, although the examiner noted that gonorrhea does not cause hepatitis C. To the extent that the probative medical evidence discussed above attributes the Veteran's hepatitis C to his IV drug use during active service, the RO previously found that the Veteran's admitted IV drug use during active service constitutes willful misconduct, and service connection for hepatitis C based on IV or intranasal drug abuse cannot be established. 38 U.S.C.A. § 105; 38 C .F.R. § 3.301. Indeed, this was the basis of the prior final denial. Regardless, as the Veteran's claim has been reopened, the Board now also finds, based upon the conflicting evidence discussed above, that the Veteran's in-service IV drug use constitutes willful misconduct, and that service connection for hepatitis C based such drug use is not warranted. Id. As discussed within the April 2017 Board decision, in conjunction with his claim to reopen his previously denied claim, the Veteran and his representative asserted the alternate theory that in-service air gun inoculations resulted in the Veteran's hepatitis C. Therefore, following the April 2017 Board remand, VA obtained an additional medical opinion to consider his contention regarding hepatitis C due to air gun inoculations during active service. Significantly, following a review of the claims file and medical history, the examiner concluded that the Veteran's hepatitis C was less likely than not due to active service. The examiner noted that service treatment records did not document an onset or diagnosis of hepatitis C during active service; indeed, he noted that this would be impossible because hepatitis C was not identified until 1989, despite the Veteran's insistence that he was told specifically that he had hepatitis C in 1976. Regarding his contention that hepatitic C is due to transmission from air guns, the examiner noted that the record documents the Veteran repeatedly used IV drugs, which are the greatest risk factor for developing hepatitis C. Moreover, the examiner noted that the Veteran only reported one time IV drug use; however, even assuming one time use, this would not lower or limit his risk of exposure. Additionally, the examiner noted that transmission of hepatitis virus via air gun has only been shown to occur in a few cases of hepatitis B, and not from the time period of the Veteran's active service; moreover, he stated that such transmission via air gun had never occurred with hepatitis C. Therefore, that examiner concluded that the Veteran's hepatitis C was not at least as likely as not incurred in or caused by active service. In conclusion, the Board finds that preponderance of evidence weighs against the Veteran's claim of entitlement to service connection for hepatitis C. As the preponderance of the probative evidence is against the Veteran's claim, there is no reasonable doubt to be resolved, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2016); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for hepatitis C is denied. ____________________________________________ A. P. SIMPSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs