Citation Nr: 18129630 Decision Date: 08/27/18 Archive Date: 08/27/18 DOCKET NO. 15-13 131 DATE: August 27, 2018 ORDER Service connection for hepatitis C is denied. Service connection for chronic fatigue as secondary to hepatitis C is denied. Service connection for a gastrointestinal disorder as secondary to hepatitis C is denied. FINDINGS OF FACT 1. Hepatitis C is the result of willful misconduct consisting of intravenous drug use. 2. Chronic fatigue is not caused or aggravated by a service-connected disability. 3. A gastrointestinal disorder is not caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hepatitis C have not been met. 38 U.S.C. §§ 105, 1110, 5107; 38 C.F.R. §§ 3.1(m), 3.102. 3.301(d), 3.303. 2. The criteria for service connection for chronic fatigue as secondary to hepatitis C have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for service connection for a gastrointestinal disorder as secondary to hepatitis C have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1970 to April 1972. This matter comes to the Board of Veterans’ Appeal (Board) on appeal from a June 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2017, the Veteran testified at Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. 1. Entitlement to service connection for hepatitis C. The Veteran contends that he contracted hepatitis C while hospitalized during service. In this regard, while he acknowledges that his service treatment records reflect a report of intravenous drug use, he adamantly denies that he used such drugs. Rather, the Veteran argues that the military tried to cover up an outbreak of hepatitis C by falsifying his records with notations of intravenous drug use. Alternatively, he argues that a military officer may have falsified his records in retribution for a confrontation with the Veteran. As such, the Veteran contends that service connection for hepatitis C is warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 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)]. With regard to service connection claims pertaining to hepatitis C, there are recognized risk factors for contracting hepatitis that should be taken into consideration when developing and adjudicating a claim of service connection. The medically recognized risk factors are: transfusion of blood or blood products before 1992; organ transplant before 1992; hemodialysis; tattoos; body piercing; intravenous drug use (due to shared instruments); high-risk sexual activity (risk is relatively low); intranasal cocaine use (due to shared instruments); accidental exposure to blood products in health care workers or combat medic or corpsman by percutaneous (through the skin) exposure or on mucous membrane; and other direct percutaneous exposure to blood such as by acupuncture with non-sterile needles or by the sharing of toothbrushes or shaving razors. Hepatitis C arising from air gun immunizations has not been documented; however, it is biologically possible. See VBA Manual M21-1, III.iv.4.I.2.e. Generally, VA law and regulations preclude granting service connection for a disability that originated due to substance abuse, as this is deemed to constitute willful misconduct on the part of the claimant. See 38 U.S.C. § 105; 38 C.F.R. §§ 3.1(m), 3.301(d); see also VAOPGCPREC 7-99, 64 Fed. Reg. 52, 375 (June 9, 1999). There is a limited exception to this doctrine when there is “clear medical evidence” establishing that a claimed condition involving alcohol or drug abuse was acquired secondary to a service-connected disability, itself not due to willful misconduct. Allen v. Principi, 237 F.3d 1368, 1381 (Fed. Cir. 2001). The Veteran has not asserted that he used intravenous drugs as the result of a service-connected disability. Therefore, the exception does not apply in this case. 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. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As an initial matter, the Board notes that the medical evidence of record demonstrates a current diagnosis of hepatitis C. See September 2012 VA examination. Additionally, the Veteran’s service personnel and treatment records indicate that he received extensive psychiatric treatment beginning in August 1971. At such time, he was placed in the psychiatric ward; however, after two and a half weeks, he was transferred to the medical services ward due to a diagnosis of hepatitis, which was confirmed by laboratory tests. At such time, the Veteran denied a history of hepatitis; however, he admitted to exposures multiple times in past 4 months, to include intravenous drug use both 2 years and 2 months prior to admission, including speed and barbiturates with questionable sterility of the needle. Subsequent to his release from active duty service in April 1972, the Veteran entered service in the Reserve. When called for a two week training drill, he sent a letter in May 1974 in which he requested a discharge as he believed that he was ill-suited for continuing military service. In this regard, he recounted that he had received psychiatric treatment and drug rehabilitation during his period of active duty. In September 2012, the Veteran was afforded a VA examination in order to determine the nature and etiology of his hepatitis. At such time, the examiner noted a diagnosis of hepatitis C in 1971, with risk factors of intravenous drug use, high risk sexual activity, and sharing toothbrushes. Following a review of the record, an interview with the Veteran, and a physical examination, the examiner found that it was at least as likely as not that the Veteran’s current hepatitis C was the same as diagnosed in service. In this regard, he noted that illicit intravenous drug use is the most frequent cause of contracting hepatitis C, and the Veteran’s service treatment records indicate that the Veteran admitted to intravenous drug use while in service. As such, the examiner opined that such intravenous drug use is at least as likely as not the cause of the Veteran’s hepatitis C; however, he was unable to pinpoint the exact time in which the Veteran contracted such illness as he adamantly denied intravenous drug use. Upon review of the record, the Board finds that service connection for hepatitis C is not warranted. In this regard, the Board acknowledges that such was first diagnosed during the military service, but finds that the preponderance of the evidence demonstrates that it is related to the Veteran’s intravenous drug use, which constitutes willful misconduct. As a result, he is barred from establishing service connection for this disability. See 38 C.F.R. § 3.301. In this regard, the Board acknowledges the Veteran’s denial of intravenous drug use, and his argument that his records were falsified as the military tried to cover up an outbreak of hepatitis C or such was done in retribution for a confrontation with an officer. However, the Board finds such statements to lack credibility as such are inconsistent with the contemporaneous evidence of record. Caluza v. Brown, 7 Vet. App. 498, 506 (1995) (VA adjudicators may properly consider internal inconsistency, facial plausibility and consistency with other evidence submitted on behalf of the veteran in weighing evidence). Specifically, the Veteran’s service treatment and personnel records reflect that, upon the diagnosis of hepatitis in August 1971, the examining physician inquired as to known risk factors for such a diagnosis and the Veteran reported exposures multiple times in past 4 months, to include intravenous drug use both 2 years and 2 months prior to admission, including speed and barbiturates with questionable sterility of the needle. In this regard, such statements are considered to be highly credible as they were offered for the purpose of seeking medical treatment. Rucker v. Brown, 10 Vet. App. 67, 73 (1997); see also Williams v. Gov. of Virgin Islands, 271 F.Supp.2d 696, 702 (V.I. 2003) (noting that statements made for the purpose of diagnosis or treatment “are regarded as inherently reliable because of the recognition that one seeking medical treatment is keenly aware of the necessity for being truthful in order to secure proper care”). Furthermore, the Veteran himself admitted to drug use in a May 1974 letter sent for the purpose of being discharged from the Reserve. Consequently, the Board finds that the statements made by the Veteran contemporaneous to the time period in question and made in circumstances where he had a motive to tell the truth are more credible than those made 40 years later in the pursuit of VA benefits. To the extent that the Veteran contends that his records were falsified as the military tried to cover up an outbreak of hepatitis or such was done in retribution for a confrontation with an officer, the Board affords such arguments to be without merit. In this regard, all medical officials are presumed to accurately report a patient’s medical history as such is vital for proper diagnosis and treatment, and is consistent with the Hippocratic oath. See, e.g., Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed Cir. 2009) (applying the presumption of regularity to VA medical examiners in the discharge of their regular duties). There is no indication, other than the Veteran’s allegations made 40 years after the fact and in the pursuit of VA benefits, that the medical professionals had a motive to lie. Consequently, the Board finds the Veteran’s argument that his records were falsified to reflect reports of intravenous drug use to be without merit. Furthermore, while the Veteran has reported additional in-service risk factors for the development of hepatitis C, the September 2012 VA examiner found that such disorder was the result of his intravenous drug use. In this regard, the opinion proffered considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations 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 opinions”). Consequently, the Board accords great probative weight to the September 2012 VA examiner’s opinion as to the etiology of the Veteran’s hepatitis C. Furthermore, there is no medical opinion to the contrary. In this regard, the Board has considered the Veteran’s statements that his hepatitis C is related to other in-service risk factors, including, but not limited to, a hepatitis outbreak in the hospital or treatment for burns, as a lay person, he has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the etiology of hepatitis C is a matter not capable of lay observation and requires medical expertise to determine. Specifically, the question of etiology of such disorder involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship as it involves knowledge of how the hepatitis infection is spread, to include the latency period between infection and symptoms. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Accordingly, the Veteran’s opinion as to the etiology of his hepatitis C is not competent evidence and, consequently, is afforded no probative weight. For the foregoing reasons, the Board finds that service connection for hepatitis C is not warranted. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for residuals of hepatitis C. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. 2. Entitlement to service connection for chronic fatigue as secondary to hepatitis C. 3. Entitlement to service connection for a gastrointestinal disorder as secondary to hepatitis C. The Veteran claims that he has chronic fatigue and a gastrointestinal disorder as secondary to his hepatitis C. Notably, he does not contend, and the evidence does not show, that such claimed conditions are directly related to service. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (2008) (claims which have no support in the record need not be considered by the Board as the Board is not obligated to consider “all possible” substantive theories of recovery. Where a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). As discussed above, service connection for hepatitis C is not warranted. As such, the Board finds that, under the law, the Veteran lacks legal grounds to establish entitlement to service connection for chronic fatigue and a gastrointestinal disorder as secondary to such disorder. See Sabonis v. Brown, 6 Vet. App. 426 (1994) (in cases in which the law and not the evidence is dispositive, a claim for entitlement to VA benefits should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law). Insofar as service connection is not in effect for the disability claimed by the Veteran to have proximally caused his chronic fatigue and gastrointestinal disorder, service connection on a secondary basis is not applicable under the law. As there is no legal entitlement, there is no doubt to be resolved and the claims of entitlement to service connection for chronic fatigue and a gastrointestinal disorder as secondary to hepatitis C is without legal merit. Id. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Htun, Associate Counsel