Citation Nr: 18122363 Decision Date: 07/30/18 Archive Date: 07/30/18 DOCKET NO. 15-34 145 DATE: July 30, 2018 ORDER Entitlement to service connection for a liver condition, to include Hepatitis C, is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has a liver condition, to include Hepatitis C, due to a disease or injury in service. CONCLUSION OF LAW The criteria for service connection for a liver condition, to include Hepatitis C, are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1978 to December 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Veteran testified before the undersigned at an August 2016 videoconference hearing. Entitlement to service connection for a liver condition, to include Hepatitis C The Veteran contends his Hepatitis C is related to service, to include excessive drinking. He has testified that the drinking led to drug use, causing hepatitis, and that the drinking was due to mental illness during service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of chronic Hepatitis C, and evidence shows that he was found possessing marijuana during service, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of chronic Hepatitis C began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Treatment records show the Veteran has a diagnosis of chronic Hepatitis C, which the Veteran has testified began approximately in 1980, after his separation from service. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). He has not contended that the Hepatitis C began during service. The Veteran testified that his Hepatitis C is due to alcoholism in service due to the intensity of his training as a law enforcement specialist, and that his eventual alcoholism and drug use was due to mental illness during service.   With respect to claims filed after October 31, 1990, an injury or disease incurred during active service will not be deemed to have been incurred in the line of duty if the injury or disease was a result of the person’s own willful misconduct, including abuse of alcohol or drugs. 38 U.S.C. § 105; 38 C.F.R. §§ 3.1 (m), 3.301(c)(3)(d). The isolated and infrequent use of drugs by itself will not be considered willful misconduct; however, the progressive and frequent use of drugs or alcohol to the point of addiction will be considered willful misconduct. 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. 38 C.F.R. § 3.301 (c)(3). However, alcohol and drug-related disorders are recognized as disorders within the medical community. See American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders (4th. Ed. 1994) (DSM-IV). Thus, while service connection for alcohol and drug abuse disabilities on a primary basis is barred, an alcohol and/or drug abuse disability arising as a direct result of a psychiatric condition may be service connected. Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). In such cases, a Veteran can establish service connection if he or she is able to adequately establish that their alcohol or drug abuse disability is secondary to, or is caused by, their primary service-connected disorder. Allen, 237 F.3d at 1381. Here, the Veteran filed a claim for service connection for depressive disorder and anxiety disorder in September 2016. A January 2017 rating decision denied service connection for a mental health condition, to include major depressive disorder with anxious distress. The Veteran did not appeal the decision and it is final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 20.200 20.1100, 20.1103, 20.1104. Accordingly, the Board concludes that as service connection is not in effect for a mental illness, or secondary alcoholism or drug abuse, there is no factual support for a grant of service connection for Hepatitis C as secondary to these issues. The   Veteran has not provided any other theories regarding the etiology of his Hepatitis C for the Board to consider. Although there is a current disability, as service connection is not in effect for any disability, secondary service connection is not warranted. On a direct service connection basis, the claimed etiology of alcohol use cannot be the basis for the grant of service connection. Therefore, the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Dean, Counsel