Citation Nr: 20076492 Decision Date: 12/02/20 Archive Date: 12/02/20 DOCKET NO. 10-31 890 DATE: December 2, 2020 ORDER Entitlement to service connection for hepatitis C is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s hepatitis C was incurred in the line of duty. 2. The Veteran’s service-connected disabilities have not been shown to have been of such severity as to preclude substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for hepatitis C have been met. 38 U.S.C. §§ 105, 1131; 38 C.F.R. §§ 3.102, 3.301, 3.303, 3.304. 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.25, 4.26. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran is a Vietnam Era veteran. He served in the Army from March 1969 to March 1972. This matter comes before the Board of Veterans’ Appeals (Board) from a July 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for hepatitis C. The Board notes that the procedural history of this case is slightly complex. The Board notes that in a February 2013, the Board remanded the issue of service connection for hepatitis C and two other issues for development, including the issue of an increased rating for posttraumatic stress disorder (PTSD) that was then on appeal from a November 2009 rating decision and determined that the issue of entitlement to a TDIU had also been raised by the record pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The matters on appeal were returned to the Board in August 2016, whereupon they were remanded once again for evidentiary development. In April 2018, the Board determined that the criteria for an increased initial disability rating of 70 percent for PTSD with depressive disorder were met. The RO implemented this grant in a February 2019 rating decision, and the issue is no longer appeal to the Board. However, the claim for service connection for hepatitis C was remanded for additional development. Further, the issue of TDIU was remanded because it was found to be inextricably intertwined with the hepatitis C claim. In February 2020, the Board remanded the claim for service connection for hepatitis C for an addendum opinion. Again, the issue of TDIU was remanded because it was found to be inextricably intertwined with the hepatitis C claim. The Board finds that the RO substantially complied with the remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board recognizes the time that the Veteran has devoted to this appeals process and appreciates his patience. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To substantiate a claim of service connection, there must be evidence of (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). “Service-connected”, with respect to a disability, means that such disability was incurred or aggravated in the line of duty in the active military, naval, or air service. 38 C.F.R. § 3.1(k). “In the line of duty” means an injury or disease was incurred or aggravated during the period of active service, unless such injury or disease was the result of the veteran’s own willful misconduct, or for claims filed after October 31, 1990, was a result of his or her abuse of alcohol or drugs. 38 C.F.R. § 3.1(m). 38 U.S.C. § 105 creates the presumption that injuries that occurs during active duty are service connected, unless evidence establishes that the injury was the result of the person’s own willful misconduct. Shedden v. Principi, 381 F.3d at 1166. Service connection cannot be granted for any disease or injury if it is the result of a veteran’s own willful misconduct or due to abuse of alcohol or drugs. 38 U.S.C. §§ 105(a), 1131; 38 C.F.R. § 3.301(a). Drug abuse is defined as the use of illegal drugs (including prescription drugs illegally obtained), the intentional use of drugs for other than the medically intended use, or the use of substances to enjoy their intoxicating effects. 38 C.F.R. § 3.301(d). The isolated and infrequent use of drugs by itself will not be considered willful misconduct; however, the progressive and frequent use of drugs to the point of addiction will be considered willful misconduct. 38 C.F.R. § 3.301(c)(3). 1. Entitlement to service connection for hepatitis C. The Veteran contends that he was infected with hepatitis C in service and received a diagnosis in July 1972, four months after his discharge. See VA Form 9 (October 2013). The Veteran’s service treatment records note that he had symptoms of nausea, vomiting, and cough in September 1970. In a December 1992 VA treatment note, the Veteran reported using intravenous heroin and marijuana while in service in Vietnam. In April 2001, the Veteran was afforded a VA examination for PTSD. In the examination the Veteran stated that he used marijuana and occasionally heroin while in Vietnam, but he did not see it as a problem since it was just a peer-related activity. Medical evidence from November 2010 VA Orlando medical care noted that the Veteran contracted hepatitis C sometime in the past. The addendum noted that the Veteran “could have contracted Hep C last year, or forty years ago.” Medical evidence from a March 2013 VA Rochester outpatient care note stated that the Veteran reports using intravenous heroin in Vietnam. Further, it noted that the Veteran stopped after returning home from the military. In November 2013, the Veteran was afforded a VA examination for PTSD. In the examination the Veteran stated that his use of heroin and marijuana occurred during the Vietnam War, but not subsequently. In May 2019, the Veteran was afforded a VA examination for hepatitis, cirrhosis and other liver conditions. A diagnosis for hepatitis C was noted in this examination. Details of onset noted that the Veteran was diagnosed with hepatitis C while in service, however the type of exposure was unknown. A diagnosis of cirrhosis or other liver conditions was not noted. The examiner opined that hepatitis C was less likely than not (less than 50 percent) incurred in or caused by the claimed in service injury, event, or illness. The examiner’s rationale states, “although the records indicate that the veteran used intravenous heroin which the veteran indicated began in service, there are no records that indicate the hep c began in service or that the heroin use began or occurred while in service.” In its February 2020 decision, the Board conceded intravenous heroin use during service. The Board noted that the Veteran consistently reported using intravenous heroin while in service, dating back to the December 1992 treatment note relating to a hospitalization for alcoholism. However, the Board found the May 2019 negative nexus opinion was inadequate as relied on the lack of evidence in the record as negative evidence. The absence of contemporaneous medical records alone is not enough to render a negative nexus opinion and preclude service connection. See Buchanon v. Nicholson, 451 F.3d 1331, 1337 (2006). In February 2020, the Veteran was examined again pursuant to the February 2020 Board remand. The examiner from the May 2019 VA examination provided an addendum opinion regarding the etiology of the Veteran’s hepatitis C. In the addendum opinion the examiner opined that “the veteran’s claimed hepatitis C is at least as likely as not (50 percent or greater probability) began in or is otherwise related to his active service as the conceded IV heroin use in service is a commonly high risk factor for hepatitis C. A nexus can be established.” As an initial matter, the Veteran is currently diagnosed with hepatitis C as evidenced from November 2010 VA Orlando medical care notes and the May 2019 VA examination for hepatitis, cirrhosis and other liver conditions. Service connection is sought for this current disability; thus, the first element of direct service connection is met. Regarding the second element, the question turns on whether the Veteran’s in-service heroin use occurred in the line of duty. Injuries that occurred to the Veteran during active duty are presumed to be service connected. 38 U.S.C. § 105. To rebut this presumption, there must be evidence in the record that shows that his use of drugs was the result of willful misconduct. In other words, the evidence of record needs to show that the Veteran’s use of drugs was progressive and frequent to the point of addiction. The Veteran has reported intravenous heroin and marijuana use while in service in Vietnam. Specifically, in April 2001 the Veteran stated that he used marijuana and occasionally heroin while in Vietnam, but he did not see it as a problem since it was a peer-related activity. While the RO notes the Veteran was absent without leave for multiple periods during his service and dropped from the rolls at one point in service, the Board does not agree with the RO’s conclusion that this demonstrates the Veteran’s drug use was the result of willful misconduct as defined by 38 C.F.R. §§ 3.301(c)(3) and 3.301(d). “Occasionally” is defined as on occasion, or now and then. MERRIAM-WEBSTER, Occasionally, https://www.merriam-webster.com/dictionary/occasionally (last visited Nov. 18, 2020). The Board finds that the Veteran’s use of marijuana and intravenous heroin was not progressive nor frequent to the point of addiction. The Veteran’s use of the term “occasionally” does not provide support that the Veteran’s use of drugs was more than isolated or infrequent incidences. Additionally, there is no mention in the evidence of record that the Veteran was addicted to drugs during his time in service. Moreover, there is no evidence in the record that the Veteran’s periods of being absent without leave were due to his admitted occasional drug use. Despite these periods of being absent from his duties, the Veteran’s DD Form 214 reflects that his characterization of service was Honorable. The preponderance of evidence in the record does not support the conclusion that his drug use was progressive or frequent. Therefore, the Veteran’s use of illegal drugs in service does not constitute willful misconduct and the second element of service connection is met. As for the third element of direct service connection, a positive nexus between the Veteran’s hepatitis C and his in-service drug use is shown. The February 2020 addendum opinion, provided by the same May 2019 examiner, provided a positive nexus for hepatitis C and conceded in-service drug use. The Board finds this medical opinion probative in value and weighs in favor of the Veteran’s claim. The medical opinion contains a sufficient rationale to support its conclusion that the Veteran’s hepatitis C was related to his in-service injected drug use. For the foregoing reasons, the Board finds the third element of direct service connection met. In conclusion, as the evidence of record is in the favor of the Veteran, entitlement to service connection for hepatitis C is warranted. TDIU Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and that, if there are two or more service connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). Substantially gainful employment is defined as work which is more than marginal and permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment shall not be considered substantially gainful employment. For purposes of 38 C.F.R. § 4.16, marginal employment generally shall be deemed to exist when a Veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce as the poverty threshold for one person. Marginal employment may also be held to exist on facts found basis, including but not limited to employment in a protected environment such as family business or sheltered workshop, when earned annual income exceeds the poverty threshold. See Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016). A veteran may be granted TDIU despite being employed and having an income in excess of the poverty line if his employment is sheltered. Cantrell v. Shulkin, 28 Vet. App. 382, 389-91 (2017). A determination of whether a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability is a factual, rather than a medical, determination. Therefore, VA is responsible for the ultimate decision of whether a veteran is capable of securing or following substantially gainful employment. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). 2. Entitlement to a TDIU for all service-connected disabilities. The Veteran has been in receipt of a 70 percent rating for PTSD with depressive disorder, effective March 2009, and is now service connected for hepatitis C. Therefore, he meets the schedular criteria for a TDIU. See 38 C.F.R. §§ 4.16(a), 4.25, 4.26. In his January 2013 TDIU application, the Veteran asserted that “all service-connected disabilities” rendered him unemployable. Although the Veteran’s TDIU application was received June 2013, the Board realizes that the Veteran’s TDIU claim was reasonably raised by the record during the initial administrative appeal of the Veteran’s claim for an initial increased rating for his service-connected PTSD. Rice v. Shinseki, 22 Vet. App. 447 (2009). In a March 2009 psychological evaluation by Dr. J.A., the Veteran reported he worked as a masonry block truck driver for a few years after her discharge from the service and then as a tool-and-dye worker for a few years before he left that position because he could not work indoors. The Veteran also noted he worked in the automobile industry, specifically in body and fender work, for several years. He stated he had a pattern of intermittent work over a 25 to 30-year period. The Veteran also explained that he had worked for a friend’s automated pallet company as an Executive Supervisor who has “troubleshot the whole company”. At the time of the evaluation, the Veteran was employed by VM and denied having difficult with supervisors. The Veteran reported having extreme difficulties in one of his positions of employment, which was located across the street from a slaughterhouse. This triggered recall of smells of dead bodies, to which he had been exposed to in Vietnam. Further, Dr. A. notes that the psychological assessment results reveal that individuals with similar profiles on the Personality Assessment Inventory (PAI) tend to experience marked distress and often severe impairment in everyday functioning. Dr. A. states, “individuals with similar profiles tend to have significant thinking and concentration problems, marked by poor judgment, profound confusion, distractibility, and impairment in reality testing often believing others are blocking or influencing his thoughts. Additionally, the “difficulties with impulse control, as evidenced by his difficulty with irritability, and his angry outbursts were quite evident and likely to substantially negatively impact his employment.” Further, Dr. A. noted that the Veteran has homicidal tendencies and is unable to maintain a normal standard of living. In January 2010, Dr. J.A. performed an updated psychological evaluation on the Veteran. The Veteran reported that he was experiencing numerous difficulties with individuals that worked for him, largely as a result of what the Veteran described as their incompetence. Further, he reported intense anger regarding his work situation. Dr. J.A. noted that the Veteran’s problems with employment functioning were consistent with his history of intermittent work. The Veteran reported that his anger regarding the circumstances of his employment, including what he described as the “ruthlessness” of his employer VM, had been exacerbated by his familiar concerns and he was concerned he might act out in his work environment. In February 2013, Dr. J.A. performed an updated psychological evaluation on the Veteran. This evaluation stated that the Veteran “is unable to maintain a normal standard of living. Problems with emotional and behavioral controls, as evidenced by his history of angry outbursts, were acknowledged, and likely render Mr. T. to be a danger to any work environment. His cognitive difficulties are also likely to have a negative impact.” Additionally, the Veteran reported that he was placed on “clean-up” duty during his last two years of employment at VM. He notes that he was laid off on December 2012 and reported that he only had twenty hours per week during that time. Further, he stated that he was only comfortable with his supervisor and the head of human resources, who was a disabled veteran, along with the other two veterans in his work environment. In his June 2013 TDIU application received, the Veteran asserted that his service-connected disabilities rendered him unemployable and affected his full-time work on May 2012. Further, he noted that he lost more than 20 days due to service-connected illnesses. Additionally, he noted that the most he earned in one year was approximately $24,529 in 2008. He noted that his total earned income within the past 12 months was $9,637.80. The Veteran indicated his highest level of education was either 3 or 4 years of high school, with no additional education or training noted. In his July 2013 Request for Employment Information in Connection with Claim for Disability Benefits form, the Veteran was reported employed from October 2003 to December 2012. His employment was terminated due to companywide layoffs. He was reported to work eight hours daily, and 40 hours weekly. The amount earned for 12 months preceding the last date of employment was reported to be $22,421.00. Social Security Administration inquiry did not show the Veteran to have filed any disability claim, however he is in receipt of benefits from August 2013, the month he turned 66. In November 2013, the Veteran was afforded a VA examination for PTSD. In the relevant occupational and education history section, the Veteran reported that he was laid off from his job a year ago, however he was employed with a ship building company for approximately eight years. His work history includes truck driving as well as construction jobs. Further, he reported that he continues to seek employment currently. The examination revealed that symptoms of the Veteran’s diagnosis included “difficulty in adapting to stressful circumstances, including work or a worklike setting.” In May 2019, the Veteran was afforded a VA examination for hepatitis, cirrhosis and other liver conditions. It was noted by the examiner under the functional impact section, that the Veteran’s liver condition does not impact his ability to work. Although the Veteran asserted that his service-connected disabilities rendered him unemployable, the evidence of record does not show the Veteran’s now service-connected hepatitis C impairs his ability to secure or follow substantially gainful work. In fact, his liver condition was found to have no impact on the Veteran’s ability to work. Therefore, the Board next turns the evaluation of a TDIU to the Veteran’s service-connected PTSD. Notwithstanding the differing employment information reported by the Veteran on his VA TDIU application for benefits as compared to the 2013 Request for Employment Information that was filled out by his employer, the evidence shows that the Veteran was in fact employed and working during the time he reported his service-connected disability affected his full-time work (May 2012) until companywide layoffs. Moreover, he was reported by his employer to be working full time 40 hours weekly starting October 2003 until his termination in December 2012, when he indicated that he was prevented from working. Additionally, the amount earned during the 12 months preceding the last date of the Veteran’s employment was reported to be $22,421.00. This earned income exceeded the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Even so, marginal employment may also be held to exist on a fact found basis, when the earned income exceeds the poverty threshold. However, the record does not suggest, nor does the Veteran claim, that he was working in a sheltered environment or engaged in marginal employment from the initial PTSD rating period. Although, the March 2009, January 2010, and February 2013 psychological evaluations by Dr. J.A. reveal that while the Veteran suffers impairment in everyday functioning, difficulties with irritability and anger, and cognitive impairments, this does not render the Veteran unable to secure and follow a substantially gainful occupation. The evidence of record showed that from the period of October 2003 to December 2012, the Veteran was, in fact, able to be gainfully employed in fiberglass lamination. Moreover, the evidence of record demonstrates that the Veteran was laid off this position not due to his service-connected disabilities but instead let go due to company-wide layoffs. The Veteran reported getting along with his supervisor and several co-workers, and much of his unhappiness with working at VM was due to what the Veteran perceived as his co-worker’s ineptness and a company culture he described as ruthless. The Board notes that the November 2013 VA examination for PTSD revealed that the Veteran has difficulty adapting to work or a worklike setting. Although it has been established that the Veteran may have difficulty in specific employment situations, the objective evidence of record indicates that he has been able to work in multiple occupations, including as a truck driver, automobile repairman, laminator and even an Executive Supervisor. The Board is aware of the challenges that the Veteran faces in employment situations. However, the evidence does not support a finding that his service-connected conditions alone prevent unemployment. (Continued on the next page)   The Board is grateful for the Veteran’s honorable service and has sympathetically reviewed the claim at issue. However, given the record before it, the Board finds that the evidence is against the claim of entitlement to a TDIU. See 38 U.S.C. § 5107(a). Accordingly, a claim for TDIU is not warranted. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Law Clerk for the Board N. Jamordee 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.