Citation Nr: 1808718 Decision Date: 02/12/18 Archive Date: 02/23/18 DOCKET NO. 11-15 085A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for Hepatitis C. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Marcus J. Colicelli, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1975 to November 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas The Veteran appeared at a Board hearing before the undersigned in October 2017 and a transcript of this proceeding has been associated with the record. FINDING OF FACT The most probative evidence of record demonstrates that the Veteran's current hepatitis C was not caused or aggravated by a disease or injury in active military service. CONCLUSION OF LAW The criteria for entitlement to service connection for hepatitis C have not been met. 38 U.S.C. §§ 1110, 5107 (West 2012); 38 C .F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veteran has not raised any concern with the duties to notify or 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 a duty to assist argument). Service Connection The Veteran contends that he contracted hepatitis C while working as a medical specialist in the Army where he was exposed to the disease. See October 2017 Board hearing transcript ("I was stationed in an Army hospital...how long were you on the Hepatitis ward...probably about a year and a half.") Applicable Law Service connection will be granted for disability that results from injury or disease in the line of duty in active military service or, if pre-existing such service, was aggravated by in-service disease or injury. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a) (2017). In order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus, or link, between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be established for any disease diagnosed after military service, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during active military service. 38 C.F.R. § 3.303(d) (2015). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App 370, 374 (2002). When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as a headache, varicose veins, or tinnitus, the Veteran is not competent to provide evidence as to more complex medical questions, such as the etiology of psychiatric, respiratory, or orthopedic disorders. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Facts Service treatment records contain no findings of hepatitis C. See i.e. September 1978 Report of Medical Examination. As noted by the April 2011 VA examiner, the exact onset of the disease is unclear, but a diagnosis was first identified in 2007 due to elevated liver laboratory findings. See April 2011 VA examiner. The medical evidence reflects that that the Veteran has been exposed to numerous risk factors for hepatitis C. The Veteran has provided inconsistent statements with regard to intravenous/intranasal drug use; contradicting himself in treatment statements associated with the record and his hearing testimony. Compare October 2017 Board hearing transcript ("stated to myself that he did not do any drugs post-service. Just that one incident in service where he had an overdose") with December 1976 Service Medical History ("9 year drug hx hash, marijuana, heroin, speed, alcohol hx 7 years"); see also April 2011 VA examination ("the Veteran also admits to intranasal cocaine use after service"); January 2018 VA examination ("PT. drank heavily prior to being treated for Hep C. He stopped drinking as ordered when he began that treatment and denies drinking since then. ETOH 1976-2007 about 12 drinks a day. Denies other drug use.") The Veteran was first afforded a VA examination in September 2008. On that occasion, his pertinent medical history and hepatitis C risk factors were acknowledged, noting the Veteran's work as a "medic in Nurnberg, Germany for two years," and past history of intravenous drug usage including the in-service overdose. The examiner also noted that the Veteran denied "intranasal cocaine" usage. The examiner noted a 2005 diagnosis of hepatitis c with co-morbid issues of diabetes and alcohol abuse. The examiner concluded that the disease was less likely than not due to the Veteran's service in light of the "IV heroine[sic] use in 1977." The Veteran took issue with this examiner's conclusion, specifically contesting that his exposure to hepatitis C victims in service was not duly considered in the opinion rendered. See October 2008 VA Form 21-4138. In lieu of a DRO hearing, the Veteran was afforded another VA examination in March 2011. The March 2011 VA examiner provided a comprehensive and fully detailed medical opinion arriving at the same conclusion as his predecessor. The March 2011 opinion cites to statements and treatment records reflecting both intravenous and "post-service" intranasal drug usage. The examiner further explained that even when considering the Veteran's duties as a medical technician, he did "not report any needlestick injuries or recall having blood exposure from patients on his skin." Based upon a review of medical literature the examiner explained that, "intravenous drug usage is the overwhelming leading risk factor for the transmission of Hepatitis C...over 5 times higher than the second listed factor; blood transfusion." Analysis As an initial matter, the Veteran is competent to describe events that occurred during military service or symptoms he experiences. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). As a lay person, the Veteran is not competent to provide a medical diagnosis of hepatitis C or to determine the etiology of his hepatitis C infection as such matters requires medical testing and expertise. See Jandreau v. Nicholson, 492 F.3d at 1376-77 (noting general competence to testify as to symptoms but not to provide medical diagnosis). Thus, the Board accords significantly greater probative to the medical evidence and opinions of record than to the Veteran's lay assertions on these points. While the Veteran is competent to identify his activities in service, the Board finds that his reports are not credible. He has provided an inaccurate history of his hepatitis C risk factors, particularly his history of drug use, in the course of seeking VA compensation benefits and in later statements to VA treatment providers that contradicted his prior statements made to VA. Therefore, his statements cannot be considered as credible and persuasive evidence in support of his claim. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (Board can consider bias in lay evidence and conflicting statements of the veteran in weighing credibility); see also 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); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) ("The credibility of a witness can be impeached by a showing of interest, bias, inconsistent statements, or, to a certain extent, bad character."). The only medical opinions to address the question of whether the Veteran's hepatitis C was related to military service were from the September 2008 and March 2011 VA examiners. Those examiners have essentially identified the Veteran's reported drug use-intranasal/intravenous drug use--as the likely cause of his current hepatitis C infection. While the examiners, especially the March 2011 VA examiner, acknowledged that the Veteran's medical work could be a risk factors for hepatitis C if there were any needle/blood exposure accidents, they noted that the Veteran did not identify any such incidents, rather his IV drug usage was an overwhelmingly higher risk factor as was the intranasal cocaine usage. The Board finds that these medical opinions together are probative evidence against the claim for service connection because the conclusions were based on a review of the claims file and supported by an articulated medical rationale that is consistent with the record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran's illegal substance abuse constitutes willful misconduct, and service connection for hepatitis C based on intranasal or intravenous drug abuse cannot be established. 38 U.S.C. § 105 (West 2012); 38 C .F.R. § 3.301 (2017). Thus, the most probative evidence indicates that the Veteran's hepatitis C is more likely related to intranasal or intravenous drug abuse, rather than any innocent risk factor occurring in service. Accordingly, the preponderance of the evidence is against the claim, and entitlement to service connection for hepatitis C is denied. ORDER Entitlement to service connection for Hepatitis C, is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs