Citation Nr: 1724557	
Decision Date: 06/28/17    Archive Date: 07/10/17

DOCKET NO.  11-03 454	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania


THE ISSUE

Entitlement to service connection for hepatitis C.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

M. Carsten, Counsel


INTRODUCTION

The Veteran served on active duty from September 1972 to July 1973.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania.

In March 2013, the Board remanded the appeal so a hearing could be scheduled. In August 2013, a videoconference hearing was held before the undersigned. In July 2014, the Board remanded the appeal for additional development. In July 2016, the Board denied entitlement to service connection for an acquired psychiatric disorder and that issue is no longer for consideration, and remanded the issue of entitlement to service connection for hepatitis C.

This is a paperless appeal and the Veterans Benefits Management System (VBMS) and Virtual VA folders have been reviewed. 


FINDING OF FACT

The preponderance of the evidence is against finding that hepatitis C is related to the Veteran's active service or events therein.


CONCLUSION OF LAW

Hepatitis C was not incurred or aggravated during the appellant's active service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 3.303 (2016).



REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

The July 2016 remand directed that the Veteran be scheduled for a VA examination by a physician specialist in liver diseases to determine whether it was at least as likely as not that hepatitis C was related to the claimed receipt of tattoos inservice or whether it was more likely than not that the hepatitis C was due to the history of drug abuse. The remand further directed that if the Veteran did not report for the scheduled examination, documentation should be obtained showing that notice was sent to the last known address.

Information in the record shows that a liver examination was requested in October 2016 and November 2016, but for various reasons it appears these examinations were canceled. In March 2017, another examination was requested. The claims folder contains a March 13, 2017 letter from the VA Medical Center to the Veteran notifying him of the examination. This letter was sent to the last known address but was returned to sender. An April 2017 Report of Contact indicates the Veteran had returned mail and failed to report for the examination. VA conducted an internet search for a current address but the address shown matched the address of record and of the returned mail. The Report of Contact also indicates VA was unable to contact the Veteran using the phone numbers of record and those obtained via the internet research.

On review, correspondence notifying the Veteran of the examination was sent to the last known address of record and the Board finds substantial compliance with the remand directives. It is well established that it is the Veteran's responsibility to keep VA advised of his whereabouts. There is no burden on the part of the VA to turn up heaven and earth to find him.  Hyson v. Brown, 5 Vet. App. 262, 265 (1993). Thus, the Board finds that VA has no further duty to provide another opportunity for a VA examination. Acccordingly, the Board will decide the case based on the evidence of record. See 38 C.F.R. § 3.655 (2016). 

Analysis

In February 2010, the RO denied entitlement to service connection for hepatitis C. The Veteran disagreed with the decision and perfected this appeal. 

In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.

In order to establish service connection or service-connected aggravation for a present disability the 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

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 M21-1, III.iv.4.l.2.e.

The September 1972 enlistment examination noted multiple body tattoos. The May 1973 discharge examination indicated the skin was normal on clinical evaluation and did not mention any tattoos. Service records are negative for any complaints or findings related to hepatitis. 

A March 1975 VA hospital summary notes occasional use of alcohol and a history of drug abuse at age 16. A December 1975 VA hospital summary notes a history of hepatitis and several drug abuse incidences. An August 1978 VA hospital summary notes a history of drug abuse to include Ritalin, Methidrin, marijuana, and PCP. A September 1978 VA hospital summary notes the Veteran's reports that he was drinking excessively and indulging in street drugs; however, his urine drug screen test was negative except that it was positive for phenothiazine. 

A May 1983 private psychiatric evaluation notes a history of drug abuse including LSD, marijuana, speed, heroin, and alcohol between 1973 and 1974. At a July 1985 VA examination, the Veteran reported that his problems began while he was in the military (starting in 1972 or 1973) because that was when he became involved with numerous drugs including speed, heroin, cocaine, LSD, and marijuana and that he was using these drugs regularly until a number of years prior to 1985. 

On VA examination in December 1987, the examiner noted the Veteran was apparently using drugs heavily at the time of his discharge and he had an extensive history of substance abuse including speed, heroin, LSD, cocaine and marijuana. The examiner further noted that the Veteran's first psychiatric hospitalization was in 1975 and at that time, he was using drugs both intravenously and orally. 

A December 1997 VA record indicates the Veteran believed that his hepatitis C was in association with the continued presence of his tattoos.  He suggested that if the tattoos were removed then he would not have hepatitis. The physician spent a long time talking to the Veteran that those two things may have been causative but they are not causative on a continuing basis and his hepatitis C positive status would not change. A September 1998 VA record indicates that the Veteran's risk for hepatitis may relate to his multiple tattoos across his arms, thorax and chest area that he claimed were applied 25 years prior. The Veteran denied intravenous drug use, cocaine use, blood transfusions, hemodialysis or multiple sex partners. 

An April 2003 VA record indicates the Veteran's risk for hepatitis C seems to be related to his multiple tattoos. A January 2010 VA plastic surgery consult notes the Veteran got his first tattoo in 1970 and the last tattoo in 2005. He had extensive tattoos on both upper extremities, back, chest and left hand. The tattoos ranged from the oldest being on the right arm and being black pigmented and fading, to more recent tattoos that had multi-colors including red and green.

At the hearing, the Veteran testified that the water at Fort Hood was bad. He also reported that he had two tattoos before service, three in service, and none since. He testified that he did not use illegal drugs during service. 

Evidence of record shows that hepatitis C was diagnosed in approximately 1994. Thus, there is evidence of a current diagnosis. 

On review, the evidence shows two risk factors for hepatitis C - tattoos and polysubstance drug abuse to include intravenous drug use. Throughout the appeal, the Veteran has provided inconsistent statements regarding when he received his tattoos. The preponderance of the evidence  shows that tattoos were applied prior to and following service. The Board will, however, consider the possibility that a tattoo was applied during his brief period of service.

The Veteran also provided inconsistent statements regarding drug use. The information documented in the course of seeking treatment during hospitalization is, however, considered highly probative and indicates an extensive history of polysubstance drug abuse. To the extent he was using drugs during service, that use constitutes willful misconduct and such use cannot provide a foundation for granting service connection. See 38 U.S.C.A. § 105(a) (West 2014); 38 C.F.R. §§ 3.1(m), 3.301 (2016).  

The Board acknowledges the various VA records suggesting there might be an etiological relationship between the Veteran's tattoos and his hepatitis C. These statements, however, are generally speculative in nature and are not considered sufficient to establish a nexus. See Bostain v. West, 11 Vet. App. 124, 127-28, quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinion expressed in terms of "may" also implies "may or may not," and is too speculative to establish medical nexus). Additionally, these statements fail to address the Veteran's long history of drug use. The Board notes that the large majority of hepatitis C infections are accounted for by known modes of transmission, primarily transfusion of blood products before 1992 and injection drug use. See VA Fast Letter 04-13 (June 29, 2004) (rescinded due to incorporation into M21-1). 

The Board acknowledges the Veteran's contentions that his hepatitis C is related to in-service tattoos or bad water. The Veteran, however, is not competent to provide an etiology opinion on a complex medical question. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). 

The Board attempted to assist this Veteran by directing that he be seen for a VA examination.  The appellant's failure to keep VA appraised of his whereabouts frustrated VA's best efforts.  On review however, of the most probative evidence of record the undersigned finds that the record preponderates against finding that the Veteran's hepatitis C is related to an in-service risk factor as opposed to his history of drug abuse and/or multiple tattoos received prior to and following service. Linking his disorder to other risk factors would require unreasonable speculation.  

As the preponderance of the evidence is against the claim, the doctrine of reasonable doubt is not for application, and the claim must be denied. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.102.


ORDER

Entitlement to service connection for hepatitis C is denied.




____________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs