Citation Nr: 20025282 Decision Date: 04/13/20 Archive Date: 04/13/20 DOCKET NO. 06-15 518 DATE: April 13, 2020 ORDER Service connection for hepatitis C is denied. FINDING OF FACT The evidence establishes that the Veteran’s hepatitis C was incurred in service as a result of the use of illicit intravenous (IV) drugs, which was willful misconduct. CONCLUSION OF LAW Service connection for hepatitis C is not warranted. 38 U.S.C. §§ 105, 1110, 5107; 38 C.F.R. §§ 3.102, 3.301, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1971 to November 1972. This matter comes on appeal before the Board of Veterans’ Appeals (Board) from an August 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). By way of procedural background, this matter has previously been before the Board in July 2010, January 2013, June 2013, August 2013, and October 2013. Initially, the Board denied the service connection claim for hepatitis C in a July 2010 decision. The Veteran appealed that decision to the United States Court of Appeals for Veterans’ Claims (CAVC), which issued a memorandum decision in February 2012 vacating the Board’s July 2010 denial of the claim because the Veteran had not yet been afforded a Board hearing. The Board has since remanded the claim several times for further development. The RO has substantially complied with the Board’s prior remand directives and the claim is ready for adjudication. The Veteran initially requested a Travel Board hearing in his May 2006 substantive appeal; however, the Veteran withdrew his hearing request in a March 2013 correspondence. Preliminary Matters The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Service connection for Hepatitis C Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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). The isolated and infrequent use of drugs 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). 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. Organic diseases and disabilities which are a secondary result of the chronic use of drugs and infections coinciding with the injection of drugs will not be considered of willful misconduct origin. Id. However, an injury or disease incurred during active service shall not be deemed to have been incurred in the line of duty if such injury or disease was a result of the abuse of alcohol or drugs by the person on whose service benefits are claimed. 38 C.F.R. § 3.301(d). Hepatitis C is not considered by VA to be a “chronic disease” listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions based on “chronic” in-service symptoms and “continuous” post-service symptoms under 38 C.F.R. § 3.303(b) do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A layperson is competent to report the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran asserts he contracted hepatitis C during service as a result of air gun inoculations during service. As an initial matter, the Veteran was first diagnosed with hepatitis C in 1997. The Veteran had an HCV RNA viral load of 2.9 million IU, which signified active hepatitis C. See November 2007 and May 2015 VA examination. Therefore, the Veteran has a currently diagnosed hepatitis C disability during the appellate period. The Veteran contends he contracted the hepatitis C while being inoculated in boot camp with air gun injectors. Service treatment records (STR) include a December 1970 medical examination at entry which noted negative serology testing. No tattoos were noted. No significant medical history was reported by the Veteran, and he specifically denied a history of jaundice, venereal disease, and hepatitis. See December 1970 Report of Medical History. In September 1971, the Veteran was diagnosed with venereal warts. The Veteran underwent a psychiatric evaluation in April 1972 secondary to his application for the drug amnesty program, his application for discharge from service, and due to a history of maladaptation both prior to and following enlistment. It was noted prior to enlistment, he was involved in illegal activities, to include burglary, grand theft, and assault with intent to kill, and he was given the opportunity to enter service in lieu of prison. Since entry, he reported using marijuana, speed, barbiturates, and heroin. The impression was psychopathic personality disorder. In June 1972, STRs report the Veteran was detoxifying from heroin with a history of barbiturate, amphetamine, and marijuana use for the last 6 months. The June 1972 STR specifically reported the Veteran had been using shared needles. May and June 1972 STRs noted the Veteran had just returned from a 10-day admission to Balboa Navy Hospital for heroin detoxification. He reported a four-month history of heroin abuse, mostly though intervenous (IV) use, but also through intramuscular (IM) use. He had experimented with other drugs, to include hallucinogens and amphetamines. During detoxification, he was found to have elevated liver function testing, which was determined to be secondary to subacute long incubation hepatitis. The impression was either chronic aggressive or chronic persistent hepatitis. He was transferred to the Naval Drug Rehabilitation Center in Miramar in August 1972, where he was diagnosed with moderate heroin, marijuana, and barbiturate abuse and light LSD, amphetamines, and opium abuse. September 1972 toxicology reports showed the Veteran was positive for amphetamines and alkaloids on September 6, 1972 and September 8, 1972. On the November 1972 Report of Medical History at discharge, the Veteran noted that he did not know if he had a history of jaundice or hepatitis. On the corresponding discharge medical examination, it was noted he had history of drug use and selected the box for abnormal clinical examination for body marks, scars, or tattoos. It was also noted that the November 1972 serology testing was non-reactive. The evidence is clear that the hepatitis C had its onset during service. Thus, whether service connection can be granted turns on whether the transmission of the hepatitis C was due to the willful misconduct of the Veteran, specifically IV drug use in service, or whether it was due to air gun inoculators. Post-service treatment records include records from the Texas Department of Criminal Justice (TDCJ). The earliest relevant TDCJ medical record is dated March 1997, when the Veteran tested positive for hepatitis C. The Veteran denied being exposed to Hepatitis C and requested that the test be rejected. He claimed to have no history of IV drug use. Repeat testing was ordered, which came back positive for hepatitis C in April 1997. The Veteran denied having hepatitis C, despite the laboratory testing results. See also TDCJ medical records between November 1999 to March 2005. The Veteran filed his service connection claim for hepatitis C in January 2005. In a March 2005 statement, the Veteran asserted that during basic training, he was injected by air gun inoculators that cut the skin and drew blood from most of the men in line. He believed he was infected with hepatitis C during this procedure. The Veteran completed a hepatitis C risk factor questionnaire in April 2005 for TDCJ. The Veteran reported his risk factors as heroin addiction, tattoos on both upper arms, and exposure to contaminated blood and fluids when inoculated during service. In a May 2006 affidavit, the Veteran swore under oath that when he was using IV drugs in service, he never used secondhand syringes. He also swore under oath that he was diagnosed with hepatitis in service before he received the tattoos. See also May 2006 VA Form 9. The Veteran was afforded a VA examination in November 2007. The examiner noted that when the Veteran returned from heroin detoxification program in June 1972, abnormal LFTs were noted. The impression was either chronic aggressive or chronic persistent hepatitis. The Veteran reported to the examiner that he was first diagnosed with hepatitis in 1993. He reported a history of IV drug use but denied sharing needles. He also reported that he obtained the tattoos after he was discharged from service. The Veteran had a history of hepatitis C risk factors, such as tattoos, a history of IV drug use before and during service, and high-risk sexual practices. He did not have a history of blood exposure or repeated body piercings. After reviewing the claims file, the examiner noted the Veteran was diagnosed with chronic aggressive or chronic persistent hepatitis in service, which was consistent was a diagnosis of hepatitis C. The examiner explained that the diagnosis was not clearly made in service because hepatitis C was not identified until many years after the 1970s and was known to the medical community at that time as non-A, non-B, or chronic hepatitis. Therefore, the examiner concluded that the Veteran was diagnosed with hepatitis C in service. However, the examiner concluded it was less likely than not that the Veteran contracted the hepatitis C from the air gun injectors because there had been no credible medical evidence which demonstrated an association between air injections and transmission of hepatitis C. Instead, the examiner found it was more likely that the Veteran contracted hepatitis C from the persistent use of IV heroin during service. A November 2008 statement from the Veteran’s representative asserted that, although the Veteran had previously reported that he obtained two tattoos in service, neither the entrance nor discharge examination indicated that the Veteran had tattoos. Further, the STRs show the Veteran received several vaccines at entrance into service, which the Veteran reported was administered by air gun injector. According to the Veteran’s representative, the Veteran did not have any other high-risk activities, except for the IV heroin use. The representative asserted that the November 2007 VA medical opinion was inadequate because the VA examiner failed to discuss a VA Fast Letter 04-13 which concluded that transmission of hepatitis C by air gun inoculators was “biologically plausible.” Further, the representative indicated the VA examiner failed to review and discuss relevant medical literature, such as the June 1986 CDC case study report which confirmed a high correlation between air gun immunizations and hepatitis B infections, and the January 1998 Department of Defense Epidemiology Board’s memorandum that included a recommendation that the multi-use jet gun not be used because there was a risk of transmission of blood borne diseases. The representative also asserted that despite the finding by the VA examiner that the Veteran participated in high-risk sexual practices, the Veteran denied such behavior in the April 2005 hepatitis risk factor questionnaire. The Veteran was married in service, and there was no evidence that his spouse contracted hepatitis C. Finally, the representative pointed out that the Board had granted service connection for hepatitis C based on the use of a multi-use jet gun injector in service in Docket 05-05 278 based on a favorable private medical opinion. The Veteran also submitted a letter dated November 2008. The Veteran asserted he was not examined by a physician at the November 2007. Instead, the Veteran contended he only saw a “secretary” who ordered blood tests and the lab technician that drew his blood. He also argued that the November 2007 medical opinions were phrased as “less likely as not” and “at least as likely as not,” which were not definitive medical opinions. He also took exception that the medical examination was not signed by the physician who wrote it. Additionally, although the Veteran acknowledged that 38 U.S.C. § 3.301(3) (sic) precluded service connection for disabilities that resulted from the use of illegal drugs because it was willful misconduct, the Veteran argued that 38 U.S.C. § 3.301(3) allowed service connection because “organic diseases and disabilities which are a secondary result of the chronic use of drugs and infections coinciding with the injection of drugs will not be considered of willful misconduct origin” (sic). The Veteran’s attorney submitted a November 2012 brief. The Veteran’s attorney argued the November 2007 VA medical opinion was inadequate. The Veteran’s attorney also reiterated that the Veteran submitted a 2006 affidavit that, although he used heroin in service intravenously, he never used second-hand syringes. In addition, the attorney acknowledged that the Veteran received two tattoos in service; however, he asserted the Veteran obtained them in the months after his June 1972 in-service hepatitis diagnosis. In August 2013, the Veteran submitted a January 1998 Department of Defense memorandum. It reported that the Armed Forces Epidemiological Board (AFEB) was briefed on the use of jet injectors for the delivery of vaccines. The AFEB observed the use of the injectors and reviewed a November 1997 letter from Ped-O-Jet, a jet injector manufacturer, advising the AFEB to discontinue using the device until studies could be performed to show that now risk was present for blood-borne disease transmission. The AFEB also reviewed published data from the Center for Disease Control (CDC) that demonstrated that once the Medi-E-Jet devices were contaminated, it could transmit blood-borne diseases if not adequately disinfected. Nevertheless, the AFEB noted the highly probable safety record of this product in the military. As there was no current data to counteract the recommendations, the AFEB recommended that the jet injectors not be used for routine immunizations. In October 2013, the Veteran submitted a June 1986 CDC article, entitled, “Epidemiologic Notes and Reports Hepatitis B Associated with Jet Gun Injection—California.” The article reviewed a CDC case study report which was the result of three patients infected with hepatitis B who each received jet injections at the same weight loss clinic. When the patient files were reviewed, five additional patients with hepatitis B were identified. The patients were typically given parenteral injection of human chorionic gonadotropin (HCG) by jet injectors. Ultimately, the investigation concluded that exposure to the jet injectors and HCG were both significantly associated with the development of hepatitis B infections. As an adjunct to this investigation, the article reported the CDC conducted a series of in vitro and in vivo laboratory experiments to assess the potential for hepatitis B contamination of jet injectors during actual use. This study ultimately found that, in the Med-E-Jet brand injectors, hepatitis B was found in 80 percent of injected test vials when there was no acetone swabbing between injections and 87 percent of the swabs from the exterior and interior nozzle surfaces. However, in an additional experiment with hepatitis B infected chimpanzees, the Med-E-Jet brand injector did not become contaminated during real time use. As an editorial note to the article, the author noted that this was the first reported outbreak of any disease implicating any kind of jet injector. Although the CDC’s report suggested that the Med-E-Jet brand injector, if contaminated, could transmit hepatitis B, the Med-E-Jet did not become easily contaminated during actual use. Another investigation had also attempted to assess the risk of hepatitis B transmission with jet injection using another brand of jet injector, but that investigation found that the other brand of jet injector was not contaminated by hepatitis B. Before this outbreak, the CDC case report noted that virtually all epidemiological studies had indicated the jet injector method of administering parenteral fluids, when properly done, was safe and effective. Additionally, the Veteran submitted a June 2004 VA Fast Letter in October 2013 regarding the relationship between immunizations with jet injectors and hepatitis C. The VA Fast Letter noted that Dr. Deyton, MSPH, MD Chief Consultant, Public Health Strategic Health Care Group for the United States Department of Veterans Affairs, was incorrectly quoted on a website as saying, “Anyone who had inoculations with the jet injector were [sic] at risk of having hepatitis C and should be tested.” The VA Fast Letter’s key points included that hepatitis C is spread primarily through the contact with blood and blood products, and the highest prevalence of hepatitis C infections were among those with repeated, direct percutaneous (through the skin) exposure to blood, such as injection drug users, recipients of blood transfusions before 1992, and people with hemophilia treated with clotting factor concentrates before 1992. Additionally, population studies indicated that hepatitis C can also be sexually transmitted; however, sexual transmission was found to be well below comparable rates for HIV/AIDS or hepatitis B. Hepatitis C could also be transmitted by shared needles that were contaminated, with possible transmission with the reuse of tattoo needles, body piercings, and acupuncture. Furthermore, the VA Fast letter noted that the hepatitis B virus was heartier and more readily transmitted than hepatitis C. While there was at least one case report of hepatitis B being transmitted by air gun injections, there had been no case reports of hepatitis C being transmitted in that manner. In conclusion, the letter found most hepatitis C infections could be accounted for by known modes of transmission, primarily transfusion of blood products before 1992 and injection drug use. Despite the lack of any scientific evidence to document the actual transmission of hepatitis C with air gun injectors, the VA Fast Letter admitted it was biologically plausible. The Veteran was afforded another VA examination in May 2015. The examiner, a physician, diagnosed the Veteran with hepatitis C. The examiner reported the Veteran was in an in-patient drug rehabilitation program during service for an IV/IM heroin addiction. At that time, the Veteran also gave a history of marijuana, amphetamine, LSD, barbiturate, and opium abuse. A psychological evaluation in April 1972 diagnosed the Veteran with maladaptive behavior and found him unsuitable for service. The examiner noted that June 1972 clinical notes reported that the Veteran used shared needles for drug use. In service, it was felt that the Veteran had long incubating hepatitis, either chronic aggressive or chronic persistent. The Veteran was eventually diagnosed with hepatitis C in 1997 while incarcerated at TDCJ. The examiner noted the Veteran “steadfastly maintains that he was inoculated with contaminated air guns during service, and that he never shared needs while abusing heroin.” He also reported that he got his tattoos after service. The Veteran had risk factors for hepatitis C, including IV drug use and tattoos. The examiner concluded that it was at least as likely as not that the Veteran’s hepatitis C infection had onset during service, but that he most likely contracted it from the IV/IM heroin abuse and not from the air gun inoculators. The examiner acknowledged that there had been some suspicion raised with regard to blood contamination from the air guns used for inoculations in the 1970s and that tattoos were also a risk factor for contracting hepatitis C; however, the examiner concluded that, in this case, the Veteran’s clearly documented use of IV/IM heroin abuse was the likely cause of the hepatitis C infection. Regarding the Veteran’s tattoos as a source of the hepatitis infection, the examiner indicated there was conflicting data from the Veteran. In April 2005, the Veteran reported getting the tattoos on both shoulders during boot camp. However, in a later April 2006 affidavit, he reported he received the tattoos after discharge from service. Military entrance and discharge examinations do not document any specific tattoos. Thus, the examiner found that the tattoos were less clinically significant than the IV drug abuse when determining the likely transmission source of the hepatitis C. Based on the above, the examiner concluded that the most likely source of the hepatitis C was the Veteran’s IV/IM heroin use during service. In September 2015, the Veteran’s attorney asserted that the May 2015 medical opinion was inadequate as the conclusion was not supported by a rationale. The Veteran’s attorney pointed to the service entrance and discharge examinations which did not note tattoos. The Veteran’s attorney asserted the Veteran’s tattoos were obtained post-service and should not be considered a risk factor for the hepatitis C transmission. In addition, the Veteran’s attorney submitted a December 2008 internet article from the Mayo Clinic entitled, “Ask the Mayo Clinic: Whatever happened to “jet injectors?” The article reported that jet injectors were discontinued for mass vaccinations five years earlier because of possible health risks. The author of the internet article, Dr. G.P., noted that the air injectors used very high pressure to force a vaccine or other medications through the skin and did not use needles. In some cases, the jet injectors could bring blood and other bodily fluids to the surface of the skin. Those fluids could potentially contaminate the injector, creating a possibility that viruses could be transmitted to another person being vaccinated by the same device. Of particular concern were blood-based viruses, such as HIV/AIDs, hepatitis B, and hepatitis C. Although no widespread outbreaks of these diseases were caused by jet injectors, Dr. G.P. indicated that the risk of blood and bodily fluid contamination of the jet injectors made them no longer acceptable for vaccinations. The Veteran’s attorney submitted a January 2016 brief. The attorney acknowledged the Veteran’s three in-service risk factors for contracting hepatitis C, which included: (1) air gun inoculations; (2) tattoos; and (3) IV drug use. As previously noted, the Veteran’s attorney asserted that the Veteran received the tattoos after the in-service diagnosis of hepatitis C, and they should be eliminated as a risk factor. The attorney contended that the VA examiner did not have data for the risk of contamination for each individual time the Veteran was exposed to hepatitis C. The attorney provided an analogy to illustrate his point. He hypothesized that if the air gun injector was used on 100 men infected with hepatitis C before it was used on the Veteran, then the Veteran’s exposure risk to hepatitis C would be very high. On the other hand, if the Veteran only shared needs with three other service members, none of whom subsequently developed hepatitis C, then the Veteran’s risk of contracting hepatitis C from sharing needles would be zero. The Veteran’s attorney argued that, because the probability of contamination is for each individual exposure is unknown, VA must resolve any reasonable doubt in favor of the Veteran and find it is at least as likely as not due to the air gun inoculations as the IV drug use. An addendum VA opinion was obtained in February 2017. The examiner, the same physician who provided the May 2015 medical opinion, again concluded that it was less likely than not that the hepatitis C was caused by either the Veteran’s tattoos or the air gun inoculators. The examiner again noted that the overwhelming clinical evidence of transmission was with the IV drug abuse during service. See also July 2017 brief. The Veteran also submitted a June 2017 private medical opinion from Dr. T.C., a board-certified internal medicine physician. Dr. T.C. reviewed the claims file, to include medical and service records from December 1970 to February 2017. Dr. T.C. did not examine the Veteran in person. Dr. T.C. noted the Veteran had been diagnosed with hepatitis C. He was first diagnosed in January 1972 in service, when laboratory blood testing was positive for HAA. Although hepatitis C had not yet been isolated in 1972, HAA was indicative of non-A, non-B hepatitis. The diagnosis of hepatitis C was later confirmed in 2007. Dr. T.C. identified multiple risk factors for contracting hepatitis C, including IV drug use, air gun inoculations, military service in the Vietnam era, and birth between 1945 and 1965. The Veteran did not have risk factors such as blood transfusion, intranasal cocaine use, multiple sexual partners, or occupational needle stick exposures. Dr. T.C. noted the Veteran’s May 2006 affidavit, in which the Veteran reported he always used clean, unused syringes when injecting heroin and never shared needles. Dr. T.C. indicated that the November 2007 examiner’s statement that there was no credible evidence linking air gun inoculators to hepatitis C transmission was inaccurate. Dr. T.C. pointed out that there was at least one documented case of air gun inoculators transmitting hepatitis B. Therefore, Dr. T.C. noted it was also biologically possible to transmit hepatitis C by air gun inoculators. Dr. T.C. also noted that there was a high rate of hepatitis C in the Vietnam-era veteran population. Thus, if the air gun was contaminated with blood, the likelihood of that blood also containing hepatitis C was very high. In fact, Dr. T.C. pointed out that air guns were no longer used for immunizations because of the “very real risk of blood contamination” as they pulled blood to the surface when inoculating and were not cleaned between uses. Dr. T.C. also reviewed the May 2015 VA medical opinion which concluded the overwhelming medical evidence pointed to the Veteran’s IV/IM heroin abuse as the source of the hepatitis C infection. Dr. T.C. conceded that the most significant risk factor of transmission for hepatitis C based on epidemiological studies in the population was IV drug use. However, in the 1970s and 1980s, when the Veteran was infected, 50 percent of new hepatitis C cases were due to healthcare contacts, such as contaminated blood or blood products. Dr. T.C. indicated that air gun inoculations and contaminated multi-use vials of medications fell into this category. While there was no data on the risk of viral transmission form any particular exposure, it was known that the risk of developing hepatitis C in an individual with IV drug use varied by location and by needle sharing practice. Dr. T.C. generally referenced that across multiple studies, the risk of seroconverting to hepatitis C positivity with in the first year of IV drug use varied from 10 to 25 percent. A Chicago study of IV drug users who shared injection equipment found their risk of seroconversion was approximately 10 per 1000 person-years, and that transmission through shared syringes was elevated but did not meet statistical significance. This finding suggested that the risk of viral transmission with any given injection was “fairly low,” and the higher rates of hepatitis C infections among IV drug users were due to repeated exposures over many years. Because the Veteran only had three months of IV drugs use before chronic hepatitis was diagnosed in service, the risk was incalculable but would be less than the 10 to 25 percent risk found in the above referenced study. Dr. T.C. noted that the March 2015 VA examiner’s conclusion that transmission of hepatitis C was due to the Veteran’s IV drug use instead of the air gun inoculators was mere speculation. Dr. T.C. then noted that it was well-documented that veterans generally had a higher prevalence of hepatitis C infections than non-veterans, and most authors attributed this finding to military exposures. Several studies indicated that being a Vietnam-era service member is an independent risk factor for contracting hepatitis C. A large cohort study of chronic hepatitis found that chronic hepatitis C infections among Vietnam-era veterans were less likely to have a history of drug abuse than nonveterans and a much higher rate of other exposures as the transmission source. The incubation period for hepatitis C was between 14 and 180 days. The Veteran’s chronic hepatitis was felt to be chronic and persistent upon diagnosis. Thus, the air gun inoculations at boot camp in January 1971, as well as his IV drug use, fell well within the incubation period. Thus, Dr. T.C. found there was insufficient medical evidence regarding the contamination risk of each specific exposure, the risks of contracting hepatitis C within three months of exposure from IV drug use were similar to the risk of simply being a Vietnam-era Veteran with no other risk factors, and medical exposure other than IV drug use represented a significant portion of new hepatitis C infections in the early 1970s. Given these facts, Dr. T.C. concluded that it was at least as likely as not that the source of the hepatitis C infection could not be determined due the presence of multiple contemporaneous risk factors for contracting the virus. The Board requested an additional VHA medical opinion in April 2019. The clinician who provided the opinion was the Chief of the Infectious Disease department. The clinician reviewed the claims file in its entirety, including the Veteran’s service history. The clinician noted that the Veteran was first diagnosed with hepatitis C in 1972 during service and again in March 1997. The clinician acknowledged the Veteran’s contention that he was infected with hepatitis C from air gun inoculators used to administer vaccines. The examiner noted the Veteran also used IV drugs during service but stated he never used secondhand syringes or needles. Although the clinician conceded that the hepatitis C infection had onset during service, the examiner also concluded that the Veteran had several risk factors for infection, to include 4 to 6 months of IV drug use during service and tattoos. See also June 1972 STRs and May 2006 affidavit. As to the Veteran’s medical history in service, the VA clinician reported that the STRs showed that the Veteran was in an inpatient drug rehabilitation program for IV heroin in 1972. He had “needle & track marks” and a history of IV heroin use. Additionally, the examiner emphasized that the June 1972 STRs specifically reported that the Veteran admitted to sharing needles. In March 1997, when seen by the TDCJ clinician, the Veteran denied a history of IV drug use, despite clear evidence in service to the contrary. In May 2006, the Veteran swore under oath that he used IV drugs in service but did not share needles. The VA examiner noted there was no reason for the military clinician to record needle sharing in the June 1972 medical history if that was not understood to be true. Thus, the Veteran has changed his recount of his medical history over time, which is typically seen when there is the possibility of a gain to the Veteran. For context, the clinician reported that the United States Preventative Service Task Force (USPSTF) recommended screening high-risk persons for hepatitis C. USPSTRF’s most important risk factor for contracting hepatitis C is past or current IV drug use. Sixty percent of new hepatitis C infections occur in persons who report IV drug use within the previous 6 months. The USPSTF 1998 data gave prevalence rates of anti-hepatitis C antibodies, which included IV drugs users and persons with hemophilia (60-90 percent), persons with less significant percutaneous exposures with smaller amount of blood, such as hemodialysis (10 to 30 percent), persons engaging in high risk sexual behavior (1 to 10 percent), recipients of blood transfusions (6 percent), and persons with infrequent percutaneous exposures, such as health care workers (1 to 2 percent). The clinician explained this data provided perspective on the relative risk of acquiring hepatitis C based on these risk factors. USPSTF noted that an unregulated tattoo is a risk factor, but there was limited evidence for the risk of contracting hepatitis C. The clinician noted that the data indicated that new cases of hepatitis C infections in persons with IV drug use in the previous 6 months was by far the most common transmission method in the United States. The clinician also noted the CDC has similar guidelines that recommends IV drug users be routinely screened for hepatitis C, even those who only injected once, only a few times, or many years ago. Thus, IV drug use, whether current, past, limited, or frequent, warrants screening for hepatitis C. The VA clinician also reviewed the medical literature cited at the end of the June 2017 medical opinion and noted, even among Dr. T.C.’s sources, that “clearly the most common cause of [hepatitis C] infections in the United States” was IV drug use. Hepatitis C was rapidly acquired after injecting into a vein, and incidence rates are highest among newer injectors. Twenty five percent were infected within 2 years of initiating drug use. The medical literature reported that each exposure is more likely to result in transmission, making population-level hepatitic C infection incidence a surrogate for drug-related behavior in the community. In other words, if a person has hepatitis C, that person most likely has used IV drugs. As to the risk factor of tattoos, the examiner noted the December 1970 service entrance physical examination selected box 39 for “Identifying body marks, scars, tattoos,” but the writing identified scars. The examiner also found that the November 1972 discharge examination selected box 39 for “Identifying body marks, scars, tattoos,” but did not identify tattoos specifically. The examiner also found numerous STRs referencing a skin rash but without reference to tattoos. Nevertheless, the VA examiner noted the risk of acquiring hepatitis C through tattooing can only be determined after controlling for whether the person also used IV drugs. In other words, IV drug use was such a driving factor in hepatitis C transmission, that it must be accounted for first before determining whether tattooing is a risk. In a large 2013 study with 3,871 patients and 1,930 infected with hepatitis C, 65.9 percent of the infected persons had IV drug use as a risk factor. Once the IV drugs and blood transfusions before 1992 were excluded, the risk of hepatitis C from one or more tattoos only slightly increased the risk of transmission over those who did not have a tattoo (odds ratio of 3.81). Similarly, high risk sexual behavior is a risk factor for hepatitis C but to a significantly lesser degree that IV drug use. In studies of hepatitis C infections in sexual partners, the prevalence rate was found to be as high as 10 percent; however, most sexual partners, as in this case, also had a history of IV drug use. This suggested that while transmission can occur through high risk sexual activity, it was at a low rate. Finally, the VA clinician addressed air gun inoculators as a risk factor for hepatitis C transmission. The clinician reviewed the medical literature and could not find any credible medical cases documenting the transmission of hepatitis C from an air gun inoculator. The clinician noted the epidemiological links to the use of Med-E- Jet injector with hepatitis B, as referenced by the Veteran’s submission of the June 1986 CDC article. The clinician noted, however, that the CDC article focused on a particular brand of jet gun inoculator. The CDC case report concluded that the Med-E-Jet could not easily become contaminated, but when it did, it could transmit hepatitis B. However, the clinician also pointed out that the CDC article also tested another brand of jet gun inoculator and found that it did not become contaminated with hepatitis B at all. Another study involving mice receiving subcutaneous jet injections with the Med-E-Jet showed transmission of lactic dehydrogenase virus between mice. This is important because both hepatitis B and LDH, in contrast to hepatitis C, can be present in very high virus titers in blood making hepatitis B and LDH more easily transmissible than hepatitis C. In the particular case study in California, it was found that there was likely one individual who was a highly infectious hepatitis B carrier based on a finding of hepatitis B antigens. Thus, this person’s blood contained higher titers of hepatitis B per volume than the typical person infected with hepatitis B. In comparison, hepatitis C typically has a much lower virus titer in blood. The clinician also clarified that while hepatitis B and hepatitis C sound similar in name, the two viruses do not belong to the same virus family. In other words, transmission rates of hepatitis B cannot be considered representative of transmission rates for hepatitis C, despite both being blood borne viruses. Overall, the clinician found there has not been credible medical evidence of hepatitis C transmission from gun inoculators. Finally, the VA clinician reviewed the June 2017 private medical opinion from Dr. T.C. The VA clinician emphasized that Dr. T.C. failed to discuss the contradicting and changing medical history, as reported by the Veteran, over time. Specifically, Dr. T.C. discussed the Veteran’s reports that he never used shared needles but failed to discuss the STRs that documented that he did. Similarly, the Veteran admitted to frequent IV drug use in service but denied a history of injecting drugs at all in 1997. The VA clinician concluded, based on the Veteran’s contradicting facts over time, that the Veteran was unreliable. In other words, Dr. T.C. only considered the more recent self-serving statements from the Veteran without discussing the context of the contradicting information in the STRs and post-service medical records. The VA clinician also discussed Dr. T.C.’s link between the June 1986 CDC case study on hepatitis B transmission in California by air gun inoculators to mean that hepatitis C may also be transmitted by air gun inoculators. In addition to the discussion of this case study above, the VA clinician also noted that hepatitis B is a sturdy virus at room temperature because it is made of DNA. In contrast, hepatitis C is not stable at room temperature and is more fragile because it is made solely of RNA. See also VA Fast Letter 04-13. Additionally, while all HCsAG-positive persons are infectious, those people who are HBeAG positive are more highly infectious, as was the case in the CDC case study, because HBeAG positive blood contains higher titers of hepatitis B per volume. The titer volume of hepatitis C is much lower than hepatitis B. Furthermore, the transmission of hepatitis B by needlestick can be as high as 30 percent, while the transmission rate of hepatitis C by needlestick is only 1.8 percent. Therefore, as discussed above, hepatitis B is not an accurate model of how hepatitis C would transmit by air gun or jet inoculators. The VA clinician also indicated that Dr. T.C. attempted to discuss population risk factors for hepatitis C in Vietnam-era veterans as evidence that air gun or jet injectors were infected with hepatitis C. Dr. T.C. stated that air guns were no longer used because of the “very real” risk of blood contamination. However, the June 1986 CDC article showed that it was, in fact, difficult to contaminate the Med-E-Jet brand injector with actual use and a second study showed another model of air gun injector could not be contaminated at all. Moreover, the VA clinician reviewed the Mayo Clinic internet article by Dr. G.P. which discussed the theoretical risks and benefits of the jet injectors. Dr. G.P. also emphasized that IV drug use was the principal transmission of hepatitis C transmission. The VA clinician reported that the first reliable diagnostic test for hepatitis C became available in 1990 with a more sensitive test in 1992. The more reliable testing began a period in which the epidemiology of hepatitis C, and its risk factors, could be determined. Clearly blood produces were a greater risk before 1992, but Dr. G.P. argued that the epidemiology was different before 1992. From this standpoint, he inferred that this must mean that the use of air guns before 1992 were a greater contributor to hepatitis C transmission that previously understood. However, the VA clinician disagreed with this conclusion and indicated it should not be believed. In support of his opinion, he noted hepatitis C is overwhelmingly best transmitted by direct inoculum into a vein. Dr. G.P. stated that risk factors were different before 1990, but a study of IV drug users found the hepatitis C infection prevalence rate showed that IV drug use was still a common cause of hepatitis C infection. The examiner concluded that this data shows the opposite of Dr. G.P.’s conclusion. As further support, the VA clinician again emphasized that the CDC also continued to recommend that an IV drug user, even if only injected once or only injected a long time ago, should still be screened for hepatitis C because IV drug use was such a high risk factor for contracting hepatitis C. In addition, Dr. T.C. reviewed infection rates of Vietnam-era veterans, which the VA clinician found to inappropriate for many reasons. The VA clinician noted that Dr. T.C. used the incidence risk rates, which were lower transmission risks for IV drug use, and compared them to Vietnam-era veteran prevalence rates (all cases). The VA clinician noted this comparison was flawed. Dr. T.C. also cited a study discussing risk factors of Vietnam-era veterans compared to nonveterans. Dr. T.C. stated Vietnam-era veterans with hepatitis C were less likely to have had a history IV drug use than nonveterans. After a review of this study, the VA clinician noted there was no statistically significant difference in injection drug use between Vietnam-era veterans and nonveterans. Thus, Dr. T.C.’s comparison was not relevant in this case. Finally, the VA clinician noted that Dr. T.C. stated there was insufficient evidence regarding the contamination risks of each specific exposure. However, based on all the evidence above, the VA clinician disagreed with this conclusion and found that IV drug use was overwhelmingly the most likely cause for this Veteran’s hepatitis C infection. After reviewing all the evidence, both lay and medical, the Board finds that, although the hepatitis C infection had onset in service, it was due to the Veteran’s frequent IV drug use, which is willful misconduct, and service connection is barred. As an initial matter, the evidence of record shows the Veteran’s drug use in service was frequent and progressive, as he used IV heroin and other drugs for a period between 4 to 6 months and required inpatient drug rehabilitation program during service. See 38 C.F.R. § 3.301(c)(3); see also June 1972 STRs. The Board also finds that the Veteran’s statements regarding his use of shared needles during service (i.e., a risk factor to contracting hepatitis C) have been inconsistent, and therefore, are not credible. For example, the Veteran’s May 2006 affidavit swears under oath that he never shared needles in service. While the Veteran’s lay statements are competent, it is affirmatively contradicted by the Veteran’s June 1972 STRs, which specifically note the use of shared needles during service. Given this fact, the Board assigns more probative value to the contemporaneous notations and affirmations in the Veteran’s service treatment records than the subsequent statements made for compensation purposes. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994); see also Curry v. Brown, 7 Vet. App. 59, 68 (1994). The Board notes that the Veteran’s May 2006 sworn statement that he never shared needles during service may be influenced by his potential pecuniary benefit in obtaining service connection. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). As to the Veteran’s risk factors, the Board construes the evidence as to his tattoos in the Veteran’s favor and finds that he did not have tattoos prior to the diagnosis of the hepatitis C in service. The Board finds the service entrance and discharge examinations, which do not specifically note the presence of tattoos, and the numerous STRs, which note a rash but are silent as to tattoos, to be probative of this issue. Considering this evidence in the context of the low transmission rate of hepatitis C for tattoos, the Board finds that the tattoos were not a likely transmission vehicle for the hepatitis C infection for this Veteran. Similarly, although an August 1972 STR noted the Veteran’s spouse was also involved in drugs, there is no evidence of record whether she ever contracted hepatitis C. Furthermore, the November 2007 VA examination selected the box for high-risk sexual practices but failed to provide an explanation for this selection. The Veteran has consistently denied participating in high-risk sexual practices during service. See November 2008 VA Form 646. Considering this evidence in the context of the low transmission rate of hepatitis C through high-risk sexual practices, the Board also finds that transmission through high-risk sexual contact also was not likely in this case. Thus, the remaining risk factors to be considered are the Veteran’s frequent IV drug use and the air gun inoculators. The Board considered the November 2007, May 2015, and February 2017 VA medical opinions. Nevertheless, the November 2007 medical opinion was inadequate as it failed to consider the Veteran’s sworn May 2006 statement. Similarly, the May 2015 and February 2017 VA medical opinions failed to provide a rational to support its conclusions and are also inadequate. Thus, the Board has assigned no probative weight to these VA medical opinions The Board also considered both the June 2017 private medical opinion and the August 2018 VHA medical opinion. The Board finds the June 2017 private medical opinion to be less probative than the August 2018 VHA medical opinion. First, the June 2017 private medical opinion fails to consider the STRs noting the Veteran used shared needles. Instead, the opinion is solely based on the Veteran’s more recent contradicting statements that he never shared needles. As noted above, the Board has found the Veteran’s assertion that he never shared needles to not be credible. Thus, the June 2017 starts from a flawed factual premise. In addition, the June 2017 private medical opinion concludes that the Veteran’s 3 months of IV drug use in service put him at a lower statistical probably of contracting hepatitis C; however, STRs document that he reported 4 to 6 months of IV drug use in service. Thus, the June 2017 private medical opinion is based, in part, on another faulty factual premise. In addition, Dr. T.C.’s June 2017 medical opinion fully acknowledged that the most significant risk factor of transmission for hepatitis C was IV drug use. Her opinion then diverted to the June 1986 CDC case study report regarding transmission of hepatitis B by a specific brand of air gun inoculator, the Med-E-Jet. The August 2018 VHA medical opinion and the VA Fast Letter 04-13 addressed why the transmission rate of hepatitis B is not representative of the transmission rates of hepatitis C; thus, the conclusions and generalizations in the June 2017 private medical opinion are unpersuasive. Further, the June 1986 CDC case study found that a specific air gun injector, Med-E-Jet, could be contaminated. However, the CDC report also noted another brand of air jet injector was not contaminated by hepatitis B at all. These findings indicate that contamination of one brand or type of air gun or jet injector cannot be generalized to all brand of air gun or jet injectors. There is no evidence of record that a Med-E-Jet was used on the Veteran in service. Therefore, just because the Med-E-Jet brand injector was contaminated in one limited situation does not mean that the Veteran was also infected by an air gun inoculator in service. Finally, the Board finds the June 2017 private medical opinion to be less probative because it did not conclude that it was at least as likely as not that the Veteran contracted hepatitis C from the air gun or jet inoculators; instead, the examiner concluded that “the etiology of [the Veteran’s] chronic Hepatitis C infection cannot be definitely determined due to the presence of multiple contemporaneous risk factors for contracting the virus.” Based on the above, the conclusions of the June 2017 private medical opinion are assigned lower probative weight. On the other hand, the August 2018 VHA medical opinion is highly probative. It addressed all the evidence of record, both lay and medical. It reviewed and cited medical literature to support its contentions. The opinion was well supported and contained thorough explanations of its conclusions. Further, the August 2018 VHA opinion thoroughly addressed the June 2017 private medical opinion and its medical conclusions. The August 2018 VHA opinion also reviewed and discussed the medical articles and the VA Fast letter 04-13 submitted by the Veteran and discussed the Veteran’s lay contentions and statements. Thus, the Board finds the August 2018 VHA medical opinion to be highly probative. The Board has also considered the Veteran’s statements relating his hepatitis C to air gun inoculators used in service. As a lay person, however, the Veteran does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of the medically complex disorder of hepatitis C. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The etiology of the Veteran’s current hepatitis C is a complex medical etiological question involving internal and unseen system processes unobservable by the Veteran. The Board acknowledges that VA Fast Letter 04-13, the January 1998 DOD memorandum, and the Mayo Clinic internet article, which indicated that it is possible that hepatitis C may be transmitted by air gun inoculations; however, there have been no actual reports of such an occurrence for hepatitis C. As discussed above, hepatitis B is different than hepatitis C in structure, stability, and transmission rate. Further, neither the VA Fast Letter, January 1998 DOD memorandum, nor the Mayo Clinic internet article provides an etiological opinion on the transmission of this Veteran’s hepatitis C based on the specific facts of this case. Additionally, despite the in-service inoculations via an air gun inoculator, there is no indication that the air gun inoculators, or any of the recruits inoculated before the Veteran, were infected with hepatitis C. In other words, the mere possibility of such a relationship is insufficient to warrant a grant of the claim. See 38 C.F.R. § 3.102 (reasonable doubt does not include resort to speculation or remote possibility); Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); see also Obert v. Brown, 5 Vet. App. 30, 33 (1993). The Veteran also cited a docket number for another Veteran’s Board decision in which service connection was granted for hepatitis C due to air jet inoculators and asserts that he too should be awarded service connection. Nevertheless, the Board notes that all Board decisions are highly fact-specific, and as a result, each decision is made based on the specific evidence supporting each claim. Notably, Board decisions do not create precedents that subsequent Board decisions are bound to follow. Thus, just because another Veteran was awarded service connection for hepatitis C does not mean that it can be awarded here on the facts of this Veteran’s case. The Veteran also asserts that the third sentence of 38 C.F.R. § 3.301(c) (beginning with “Organic disabilities…”) means that infections from injected drug use in service are not willful misconduct and service connection is not barred. See November 2008 statement (incorrectly citing 38 U.S.C. § 3.301). However, the Board disagrees. The Board interprets the third sentence of 38 C.F.R. § 3.301(c) to mean that infections that are a result of drug use are not considered willful misconduct if the infection is secondary to another service-connected disability and meets the requirements of 38 C.F.R. § 3.310. For example, if a Veteran is granted service connection for a drug abuse disorder secondary to a service-connected psychiatric disability and subsequently developed hepatitis C as a result of the IV drug use, then service connection for hepatitis C would not be barred. However, this example is not applicable to the facts of this case. The Veteran in this case contracted hepatitis C due his willful misconduct in service. The Veteran has not asserted, and the evidence does not suggest, that the illicit drug use is secondary to an already service-connected disability. The Veteran’s interpretation of the third sentence of 38 C.F.R. § 3.310(c) is directly contradictory to the rest of 38 C.F.R. § 3.310 and does not make sense in the context of the rest of that regulation. Finally, the Board considered the attorney’s analogy in the January 2016 brief. The evidence of record demonstrates that the Veteran shared needles in service. However, it does not demonstrate that the 100 recruits inoculated before the Veteran had hepatitis C, or that he only shared needles with three other service members and that none of whom contracted hepatitis C. Thus, the analogy is not probative and is a generalization rather than a supported contention based on this specific Veteran and his specific set of circumstances. The most competent and probative evidence demonstrates the Veteran has a diagnosis of hepatitis C, which was incurred from the frequent and progressive use of IV drugs while in service. As such, the hepatitis C disability, as a matter of law, cannot be found to have been incurred in the line of duty. Therefore, service connection is not warranted. Finally, the Board notes that neither the Veteran nor his attorney have raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Harper, 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.