Citation Nr: 19137170 Decision Date: 05/14/19 Archive Date: 05/14/19 DOCKET NO. 10-04 169 DATE: May 14, 2019 ORDER Entitlement to service connection for Hepatitis C infection is denied. Entitlement to an increased rating for the Veteran's left inguinal hernia of 10 percent, but not higher, is granted, effective May 19, 2009. FINDINGS OF FACT 1. The Veteran’s recurrent Hepatitis C infections were caused by chronic intravenous drug use which constitutes willful misconduct and was not caused by any aspect of active duty service. 2. It was factually ascertainable that the Veteran’s left inguinal hernia was readily reducible but required the use of a supportive truss or belt starting May 19, 2009. CONCLUSIONS OF LAW 1. The criteria for service connection for hepatitis C are not met. 38 U.S.C. §§ 105, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2018). 2. The criteria for an increased rating of 10 percent, but not higher, for postoperative residuals of a left inguinal hernia repair have been met, effective May 19. 2009. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.400 4.1, 4.2, 4.7, 4.10, 4.114, Diagnostic Code 7338 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from April 1974 until January 1976. This case comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. During the appeal, jurisdiction transferred to the RO in Houston, Texas. In June 2017, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A written transcript of this hearing has been prepared and associated with the evidence of record. The August 2008 rating decision did not address reopening the Veteran’s hepatitis C claim but adjudicated the claim on the merits. In an August 2017 Board decision, the claim for hepatitis C service connection was re-opened and remanded. The Board remanded for a VA examination regarding the Veteran’s potential hepatitis C disability, a VA examination regarding the severity of the Veteran’s hernia and an order to retrieve the Veteran’s medical records from the Wadsworth VA Medical Center (VAMC) facility from 1976. 1. Entitlement to service connection for Hepatitis C Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) the 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, 1167 (Fed. Cir. 2004). To establish a “current disability” there must be competent evidence that a disability exists at the time of filing for benefits or during the period of review. Chelte v. Brown, 10 Vet. App. 268 (1997). This disability must be a present disability and not an example of a past disability or one-time treatment for an illness. Degmetich v. Brown, 104 F.3d 1328, 1332. Without a current disability, there can be neither an in-service injury or occurrence nor a direct or secondary nexus between the disability and the in-service injury or occurrence. To succeed in a claim of service connection, a Veteran must show, after given the benefit of the doubt, that they have all three elements satisfied with sufficient evidence. A Veteran will succeed on their claim if the evidence that supports each element of the claim is in equipoise with the evidence against their claim. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that he received hepatitis C from a tattoo he got while active duty. He further contends that he did not use drugs while active duty and that the hepatitis C was contracted prior to his discharge from service. Service treatment records include physical examinations in April 1974 on entry on active duty and in January 1978 at the time of discharge from active duty. On entry, the examiner noted tattoos on the hands and chest. At discharge, the examiner noted tattoos on the right and left forearms. The examinations and treatment records during service are silent for any symptoms, diagnoses or treatment for Hepatitis C infection or liver or jaundice problems. In September 1976, 7 months after the Veteran was discharged from service, the Veteran was admitted to a VA hospital at Wadsworth California for what he reported as two year history of intravenous heroin use and “yellow eyes.” Laboratory testing showed hepatitis C infection. The Veteran denied exposure to any jaundiced person, blood transfusions or exposure to hepatitis C in the past. The doctor noted that the Veteran had track marks on the left arm. In January 1977, the RO denied service connection for hepatitis C infection in part because it was caused by willful misconduct in the form of drug abuse. In November 1992, the Veteran applied to reopen the claim for service connection for hepatitis C infection, but in January 1994, the RO did not reopen the claim because no new and material evidence had been received. In January 2004, the Veteran sought treatment at a VA emergency room for gastrointestinal symptoms but reported that he had been using heroin for the past week and also wanted help to withdraw from use of narcotics. The Veteran had positive hepatitis C screenings in January 2004, March 2004, December 2007 and October 2015. Each time the Veteran’s hepatitis C infection was later resolved with the use of anti-viral medications. In May 2006, the Veteran informed his treatment provider that he spent $120 a day on heroin, a drug often administered via intravenous injection. He reported using heroin since age 16 and continued through 1987 except for 18 years of incarceration. The Veteran applied to reopen his claim in November 2007. In August 2008, the RO did not address whether new and material evidence had been received, but denied service connection on the merits, citing the 1976 VA hospital report as evidence that any infection was caused by drug abuse. In a January 2010 statement of the case, the RO acknowledged the receipt of new VA outpatient treatment records as summarized above, but declined to reopen the claim because the evidence, though new, was not material to the reason for the previous denial. In a December 2016 VA examination, the examiner determined that the Veteran was most likely exposed to hepatitis C after military separation. This examination noted that the Veteran had two of the highest risk exposures to hepatitis C—long term incarceration and intravenous drug use. In June 2017, the Veteran testified at a Board hearing that the hepatitis C he suffers from in waves came about due to tattoos he received in service. He also contended that he lied upon entrance in September 1976 about using drugs because he wanted access to a VA living program that was only available to drug users. He contended that he did not use drugs until after his exposure to hepatitis C. As noted above, in August 2017, the Board reopened the claim and remanded for an additional VA examination. In a May 2018 VA examination the examiner noted that the Veteran’s bout with hepatitis C had currently resolved but established that the Veteran’s exposure to it in the past has been related to his intravenous drug usage. The Board finds that the weight of competent and credible evidence is that the Veteran’s recurrent hepatitis C infections started not earlier than 7 months after service and in any case was caused by intravenous drug abuse. At various times, the Veteran has reported to clinicians or adjudicators that he did not use drugs until after the diagnosis of hepatitis in 1976 but also inconsistently reported drug use from age 16. He reported obtaining tattoos in service but records also show other tattoos noted at entry into service. The available clinical evidence shows that the Veteran has a history of chronic hepatitis C disability concurrent with habitual intravenous drug use. The competent and credible evidence is strongly weighted toward the drug use as persistent, practiced over a long period of time starting before service, and is the result of willful misconduct. To the extent that the Veteran experiences residual signs or symptoms related to hepatitis C, the Board finds that the claim must be denied, as even if the virus was contracted in service, the manner in which it was most likely contracted constitutes willful misconduct, barring a grant of service connection. 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 willful misconduct or the result of abuse of alcohol or drugs. 38 U.S.C. § 105; 38 C.F.R. § 3.301 (a). 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’s service treatment records are negative for complaints of or treatment for symptoms associated with hepatitis C, and the evidence does not otherwise show that he was diagnosed with or treated for hepatitis C at any time during his active military service. The Veteran first contracted hepatitis C in September 1976, months after service. The Veteran suggests that this proximity to service shows that it began in service but as hepatitis C is not a chronic illness under VA regulations, the guidelines under 38 C.F.R. § 3.303 (d) and not subsection (a) would apply. Under § 3.303(d), the post service initial diagnosis of a disease may grant service connection when all the evidence establishes the disease was incurred in service. As here, the evidence does not establish the disease was incurred in service merely when it shows initial diagnosis close to discharge from service. Further, the Board finds that the Veteran’s intravenous drug use caused his hepatitis C. In his June 2017 hearing, the Veteran claimed that when he first was diagnosed with hepatitis C, he was not using intravenous drugs and that he lied during that admission to gain access to the benefits of the living program. The Board is obligated under 38 U.S.C. § 7104 (d) (2012) to analyze the credibility and probative value of all evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide reasons for its rejection of any material evidence favorable to the veteran. See, e.g., Eddy v. Brown, 9 Vet. App. 52 (1996); Meyer v. Brown, 9 Vet. App. 425 (1996); Gabrielson v. Brown, 7 Vet. App. 36 (1994). At issue in this case is which of the different Veteran-provided statements regarding his drug usage has more credibility, the June 2017 or September 1976 testimony. While determining the credibility of competent lay assertions, the Board may properly consider the personal interest a claimant has in his or her own case. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (holding that while interest may affect the credibility of testimony, the Board must account for and explain its reasons for rejecting testimony). The Veteran’s contention that he lied in September 1976 to gain access to living program benefits is not supported by the record. In the same appointment that the Veteran was first diagnosed with hepatitis C, the Veteran’s doctor noted the Veteran had withdrawals and that the Veteran had track marks on his arm, both symptoms of intravenous drug use. The doctor did not rely upon the Veteran’s statements to determine the symptoms of withdrawal and track marks. Accordingly, the Board finds that the Veteran had been using intravenous drugs in September 1976 when he was first diagnosed with hepatitis C. The Board, relying on the basis of the Veteran’s VA examiners, concludes that the Veteran most likely contracted hepatitis C as a result of intravenous drug use. The Veteran did not contract hepatitis C while active duty. The first diagnosis he has is in September 1976, 7 months after service. The evidence does not establish that the Veteran incurred the disease in service and it cannot be presumed as such. Further, even if the Veteran were able to support the contention that his hepatitis C incurred in service, the Veteran’s intravenous drug use in service is considered to be willful misconduct. As noted above, service connection may not be awarded for disabilities incurred as a result of willful misconduct. See 38 C.F.R. § 3.301. In reviewing all the evidence, the Board finds that the weight of competent and credible evidence that the veteran’s hepatitis C manifested after service and is caused by his willful misconduct. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to an increased rating for the Veteran's left inguinal hernia Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Unless specifically provided otherwise, the effective date of an award based on an increase in disability claim shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if the application for an increase in benefits is received within one year from such date. 38 U.S.C. § 5110(b)(3). Diagnostic Code 7338 provides ratings for inguinal hernia. Small inguinal hernia, reducible, or without true hernia protrusion, is rated noncompensable (zero percent). An inguinal hernia that is not operated, but is remediable, is rated noncompensable (zero percent) disabling. Postoperative recurrent inguinal hernia, readily reducible, well supported by truss or belt, is rated 10 percent disabling. Small inguinal hernia, postoperative recurrent, or unoperated irremediable, not well supported by truss, or not readily reducible, is rated 30 percent disabling. Large inguinal hernia, postoperative recurrent, not well supported under ordinary conditions and not readily reducible, when considered inoperable, is rated 60 percent disabling. A Note to Diagnostic Code 7338 provides that 10 percent is to be added for bilateral involvement, provided the second hernia is compensable. This means that the more severely disabling hernia is to be rated, and 10 percent, only, added for the second hernia, if the second hernia is of compensable degree. 38 C.F.R. § 4.114. The Veteran is currently rated at a 0 percent (noncompensable) disability for his left inguina hernia under 38 C.F.R. § 4.114, Diagnostic Code 7388. He contends that his rating should be increased to 10 percent due to his required use of a belt or truss in treatment of his hernia. The Veteran filed his claim for an increased rating in November 2007. In May 2009, the Veteran provided a statement that he should be at a 10 percent rating for his hernia because of the belt he is required to wear in treatment of said disability. In an October 2011 VA examination for a separate and unrelated claim for benefits, the Veteran’s doctor notes that, per the Veteran’s own statements, the Veteran’s hernia is being treated with a truss as needed and that the response to this treatment has been good. In September 2014, the Veteran was afforded a VA examination. While this VA examination found that the Veteran had had two surgeries for his hernia (one in 1974 and one in 2013), there is no note positively or negatively regarding the use of a truss or belt for support. In his June 2017 hearing, the Veteran testified that he does use a restraining belt to hold his inguinal hernia in place. The Veteran’s May 2018 VA examination found that the Veteran had an inguinal hernia best described as a status post-surgical repair and mild in severity. This examiner found that no belt or truss was used. The Veteran’s lay statements regarding the use of a belt for his hernia from the May 2018 VA examination. The Veteran contends that he uses a restraining belt or truss to support his inguinal hernia. Unless otherwise found not credible, the Veteran is competent and credible to report treatment they receive for a disability and such statements regarding treatment are credible evidence in consideration of claims regarding these disabilities. See Falzone v. Brown, 8 Vet. App. 398 (1995). The Board finds the Veteran’s lay statements regarding his treatment for his inguinal hernia are not contradicted in his record. After giving the Veteran the benefit of the doubt, the Board finds that the Veteran meets the requirements of a 10 percent rating under Diagnostic Code 7338 of “postoperative recurrent, readily reducible and well supported by truss or belt.” The Veteran does not contend and there is no medical evidence otherwise suggesting that the Veteran’s hernia is unoperated irremediable, not well supported by truss, or not readily reducible. (Continued on the next page)   Accordingly, the Veteran’s entitlement to an increased rating to 10 percent, and no higher, for his inguinal hernia is granted, effective May 19, 2009. 38 U.S.C. § 5107(b) (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S.Sellers, Associate Counsel