Citation Nr: 20081794 Decision Date: 12/30/20 Archive Date: 12/30/20 DOCKET NO. 16-59 963 DATE: December 30, 2020 ORDER The appeal for entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and major depression, is dismissed. Entitlement to service connection for hepatitis C, to include as due to intravenous (IV) drug use during active service, is granted. FINDINGS OF FACT 1. While in remand status, a July 2020 rating decision granted the Veteran’s claim of entitlement to service connection for PTSD with major depressive disorder. 2. The evidence establishes that the Veteran at least as likely as not engaged in IV drug use during and following service as a result of symptoms associated with service-connected PTSD with major depressive disorder. CONCLUSIONS OF LAW 1. As the benefit sought on appeal with respect to the matter of service connection for an acquired psychiatric disorder has been granted, there remains no case or controversy as to the issue of entitlement to service connection for an acquired psychiatric disorder. 38 U.S.C. § 7105(d)(5); 38 C.F.R. § 20.101. 2. The criteria for establishing entitlement to service connection for hepatitis C are met. 38 U.S.C. §§ 1110, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.301, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters The Veteran had honorable active duty service with the United States Marine Corps from March 1972 to February 1974. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran’s electronic claims file. In April 2019, the Board remanded the instant issues on appeal for further development. While the matter was in remand status, the RO granted the claim of entitlement to service connection for PTSD with major depressive disorder in a July 2020 rating decision, resolving the claim of entitlement to service connection for an acquired psychiatric disorder. The remaining issue has returned to the Board for further appellate consideration. The record reflects that the Veteran’s claim of entitlement to service connection for hepatitis C was most recently finally denied by a July 2003 rating decision. Although there is a prior final denial of the issue, the April 2019 Board remand did not specifically address whether new and material evidence had been submitted to reopen the claim of service connection for hepatitis C. However, the Board’s remand requested that an examination be completed to assess the etiology of the Veteran’s hepatitis C. This request reflects that the Board determined that new and material evidence was submitted to reopen the finally adjudicated claim as VA’s duty to assist does not require VA to obtain an examination for a previously denied claim unless new and material evidence is submitted. 38 C.F.R. § 3.159(c)(4)(iii). Therefore, the Board’s April 2019 remand of the service connection claim to obtain a VA examination reflects that the Board implicitly concluded that there was new and material evidence sufficient to reopen and readjudicate the claim on the merits. As such, the claim before the Board is one of service connection for hepatitis C and it is not necessary to further address whether new and material evidence has been submitted to reopen the claim. Dismissal 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and major depression, is dismissed. Under 38 U.S.C. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. In this case, a July 2020 rating decision granted the Veteran’s claim of entitlement to service connection for PTSD with major depressive disorder. This action resolved the claim for service connection. As a result, no case or controversy regarding the matter of service connection for an acquired psychiatric disorder remains, and there is no remaining allegation of error of fact or law for appellate consideration. 38 U.S.C. § 7105(d)(5). Accordingly, the Board is without jurisdiction to review the appeal with respect to this matter, and the matter is dismissed. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) 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, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). In addition, for certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307, 3.309(a). The presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. § 3.309, 3.309(a). When chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Also, 38 U.S.C. § 1154(a) requires that VA give ‘due consideration’ to ‘all pertinent medical and lay evidence’ in evaluating a claim for disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, ‘[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.’ Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Finally, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 2. Entitlement to service connection for hepatitis C, to include as due to IV drug use during active service, is granted. In addition to the general service connection regulations above, there are additional VA regulations and guidance pertaining to this claim. Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). The VA Adjudication Manual lists medically recognized risk factors for hepatitis C as to include: (a) transfusion of blood or blood product or organ transplant before 1992 or hemodialysis; (b) tattoos or body piercing; (c) intravenous (IV) drug use (with the use of shared instruments); (d) high-risk sexual activity; (e) intranasal cocaine use (also with the use of shared instruments); (f) accidental exposure to blood products as a healthcare worker, combat medic, or corpsman by percutaneous (through the skin) exposure or on mucous membrane; (g) other direct percutaneous exposure to blood, such as by acupuncture with non-sterile needles, or the sharing of toothbrushes or shaving razors; and (h) immunization with a jet air gun injector. See M21-1, III.iv.4.H.2.e (updated January 11, 2018). Although VA’s Adjudication Manual is not binding on the Board, DAV v. Sec’y of Veterans Affairs, 859 F.3d 1072, 1077 (Fed. Cir. 2017) (“The M21-1 Manual is binding on neither the agency nor tribunals”), but it “is required to discuss any relevant provisions contained in the M21-1 as part of its duty to provide adequate reasons or bases.” Overton v. Wilkie, 30 Vet. App. 257, 264 (2018). VA disability compensation is not payable for disability due to a veteran’s own willful misconduct or disability resulting from abuse of alcohol or drugs. 38 C.F.R. § 3.301(a), (b). The use of drugs to the point of addiction is considered willful misconduct. 38 C.F.R. § 3.301(c)(3). However, where the use of drugs or addiction to drugs results from a service-connected disability it will not be considered of misconduct origin. See 38 U.S.C. §§ 105(a), 1110; 38 C.F.R. § 3.301(c)(3); see also Allen v. Principi, 237 F.3d 1368, 1376 (Fed. Cir. 2001). The Veteran’s service treatment records do not show any complaints or treatment for liver disease or symptoms typically associated with liver disease. A July 2002 VA treatment record shows that hepatitis C was listed as an active problem at that time. On VA examination in November 2019, the examiner noted that the Veteran was diagnosed with hepatitis C in 2002. The examiner indicated that the onset of the condition was in 1973. The Veteran reported that, at that time, he was engaged in IV drug use during service. The examiner noted IV drug use as the sole risk factor for the Veteran’s hepatitis C. The examiner opined that it is at least as likely as not that the Veteran’s hepatitis C is from drug usage while in military service. The examiner stated that hepatitis C can take several years to manifest in person. The Veteran reported that he did IV drugs in service. He was discharged from the military in 1974. He was hospitalized in November 1977 for mononucleosis; however, he had abdominal pain and elevated liver function tests. The examiner states that this may have been the Veteran’s first presentation of hepatitis C. In November 2019, the Veteran also had a VA PTSD examination. As relevant, the examiner diagnosed PTSD and major depressive disorder. The examiner opined that the Veteran’s psychiatric condition was related to his military service. The examiner noted that the Veteran has a diagnostic history of substance abuse and treatment by VA, which began in 1976. The examiner stated that the Veteran’s substance use is most likely an attempt to self-medicate his mental health problems. As previously indicated, the RO granted service connection for PTSD with major depressive disorder in a July 2020 rating decision. Based on the above evidence, the evidence is at least evenly balanced as to whether the Veteran developed hepatitis C secondary to IV drug use associated with service-connected PTSD with major depressive disorder. Allen, 237 F.3d at 1376; see also Mittleider v. West, 11 Vet. App. 181, 182 (1998) (citing 61 Fed. Reg. 52698 (Oct. 8, 1996)) (when it is not possible to separate the effects of the service-connected and non-service-connected disabilities, the benefit of the doubt doctrine described in 38 C.F.R. § 3.102 dictates that such signs and symptoms be attributed to the service-connected disability or disabilities); 38 C.F.R. § 3.310(a). The November 2019 VA PTSD examination report clearly indicates that the Veteran’s substance abuse problem was most likely a form of self-medication for his psychiatric symptoms. Allen, 237 F.3d at 1376. The weight of the evidence indicates IV drug use, as intertwined with the Veteran’s service-connected PTSD with major depressive disorder, was the primary risk factor for hepatitis C in this Veteran’s case. (CONTINUED ON NEXT PAGE) For the above-stated reasons, the evidence is at least evenly balanced as to whether the Veteran’s IV drug use beginning in service resulted from service-connected PTSD with major depressive disorder symptoms, and as to whether his hepatitis C was incurred as a result of such substance abuse. Thus, resolving all reasonable doubt in the Veteran’s favor, the Board finds that service connection for hepatitis C is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Y. MacDonald, 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.