Citation Nr: 20004080 Decision Date: 01/16/20 Archive Date: 01/16/20 DOCKET NO. 11-14 674 DATE: January 16, 2020 ORDER Entitlement to service connection for hepatitis C is denied. FINDING OF FACT The competent and probative evidence is against finding that hepatitis C began during active service or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for hepatitis C have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303 REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1971 to November 1972. The Veteran testified at a hearing before a Veterans Law Judge (VLJ) in June 2017. A transcript of the hearing has been associated with the record. However, the VLJ who conducted the hearing is no longer employed by the Board. The Veteran was informed of his right to a new hearing with a different VLJ in a November 2019 letter. The Veteran did not respond. As such, the Board will consider his claims based on the evidence of record. The Board finds there has been substantial compliance with the October 2017 remand and the Board will proceed with adjudication. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for hepatitis C The Veteran contends that his hepatitis C was caused either by air gun immunizations or other high-risk activities during his active service in Vietnam. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). VA recognizes a number of risk factors for hepatitis C, to include factors such as: transfusion of blood or blood products (before 1992); organ transplant (before 1992); hemodialysis; tattoos; body piercing; IV drug use (from shared instruments); high-risk sexual activity; intranasal cocaine (from shared instruments); accidental exposure to blood products as a health care worker, combat medic, or corpsman by percutaneous (through the skin) exposure or mucous membrane exposure; and, other direct percutaneous exposure to blood, such as by acupuncture with non-sterile needles or the sharing of toothbrushes or shaving razors. Additionally, VA recognizes that transmission of the hepatitis C virus with air gun injections is “biologically plausible,” notwithstanding the lack of 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 hepatitis C, the preponderance of the evidence weighs against the claim. Treatment records show that the Veteran was diagnosed with hepatitis C in 2004. The records further document the Veteran’s risk factors for hepatitis C as intravenous (IV) drug use, air gun vaccinations during Vietnam War and a possible blood transfusion. The Veteran testified at his June 2017 Board hearing, that while he did use IV drugs in Vietnam, he only used it on three occasions, but his IV drug use was in the company of heroin addicts. The Veteran also testified that he engaged in high risk sexual activity while in Vietnam. Pursuant to the Board’s October 2017 remand, the Veteran was afforded a VA examination in April 2018 and a supplemental opinion was obtained in May 2019. During the April 2018 VA examination, the Veteran reported that he didn’t recall receiving any blood transfusions. The VA examiner then opined that “immunization has not been shown to transmit hepatitis C, sexual transmission is rare, and the Veteran did not recall any transfusions, his exposure to IV and intranasal drugs in service (alcohol is his drug of choice in the U.S.) is as likely as not the source of his hepatitis C infection.” In the May 2019 VA medical opinion, the examiner opined, It is at least as likely as not that the Veteran’s hepatitis C had its onset during service, since, as noted, immunization has not been shown to transmit hepatitis C, sexual transmission is rare, and the veteran did not recall any transfusions. Therefore, his exposure to IV and intranasal drugs in service, which first and primarily occurred in Viet Nam (alcohol is his drug of choice in the U.S.) is as likely as not the source of his hepatitis C infection. The examiner further explained, By the time the veteran came to the VA in 2008, his cirrhosis was already advanced, an indication that his hepatitis C and drinking had begun earlier. And since other risk factors were negligible, and alcohol was his drug of choice in the U.S., it is at least as likely as not that he used IV drugs while in Vietnam, like 1/5 [one fifth] soldiers at that time did. The Veteran’s service treatment records (STRs) are absent for complaints, findings or diagnoses of hepatitis during service. However, the VA medical opinions are competent and probative, in stating that the Veteran’s purported risk factors of immunizations using air guns have not been to transmit hepatitis C and that sexual transmission of hepatitis C is rare. The VA examiners have also identified the Veteran’s use of IV and intranasal drugs as during his active service in Vietnam as probable risk factors responsible for his hepatitis C. The examiner also accounted for the time delay between the Veteran’s November 1972 separation from service and his 2004 hepatitis C diagnosis. The probative medical opinions of record relate the Veteran’s hepatitis C to IV drug use in service. A veteran cannot receive VA benefits for a disability that is the result of willful misconduct or the abuse or alcohol or drugs. 38 U.S.C. § 105; 38 C.F.R. § 3.301. The use of illegal drugs constitutes willful misconduct, and service connection for hepatitis C based on IV or intranasal drug abuse cannot be established on those grounds. Conversely, service connection is not precluded if substance abuse is secondary to a service-connected disability, such as if the Veteran used alcohol and/or drugs to mask or self-medicate his mental disorder. Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). The Board has considered the holding in Allen but notes that the Veteran has not contended, and the record does not demonstrate, that the Veteran’s prior drug use was attributable to a service-connected disability. The Board concludes that the Veteran’s use of IV drugs was willful misconduct. At the Board hearing, the Veteran said he used drugs during service only 3 times and hat was to “fit in.” The VLJ who heard testimony about the frequency of his drug use, commented that VA’s prohibition of compensation was on drug abuse, rather than a few isolated times. The Board finds the Veteran is not credible as to the reported frequency of drug use in service. The Board is also not persuaded by the Veteran’s argument that his drug use was not willful misconduct because he only did it three times and that was to “fit in.” Nor is it persuaded by his representative’s argument that the Veteran used drugs to deal with the stress of being in combat. In a March 2011 statement in support of his claim, the Veteran explicitly said “no drug or cocaine use.” The Veteran has not related to use of IV drugs in service to the circumstances of service, other than to say it was to “fit in.” The Board has considered the Veteran’s reports attributing his hepatitis C to service, specifically to air gun inoculations or due to high risk sexual activity while in the Republic of Vietnam, but the evidence of record does not demonstrate that the Veteran has the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Therefore, the Veteran is not competent to provide an opinion on the etiology of his hepatitis C. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (2007). Service connection is denied. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. G. Perkins, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.