Citation Nr: 20026744 Decision Date: 04/17/20 Archive Date: 04/17/20 DOCKET NO. 10-40 236 DATE: April 17, 2020 ORDER Entitlement to service connection for hepatitis C is denied. Entitlement to service connection for a respiratory disorder is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s hepatitis C began during active service or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that the Veteran’s respiratory disorder began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for hepatitis C are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a respiratory disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had service in the Army from September 1975 to March 1976. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In November 2011, a Travel Board hearing was held before a Veterans Law Judge (VLJ) who subsequently retired. The transcript from that hearing is in the claims file. Following April 2014 and March 2016 Board remands for additional development, an additional hearing was held before the undersigned VLJ in October 2017. The transcript of this most recent hearing is associated with the claims file. In January 2018, the Board remanded the appeal for further development. The case has now returned to the Board for appellate review. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Once the evidence has been assembled, it is the Board’s responsibility to determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. §§ 3.102, 4.3. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. The Board must analyze the credibility and probative value of the evidence, account for the persuasiveness of the evidence, and provide reasons for rejecting any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed.Cir.1996). The Board assesses both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency (“a legal concept determining whether testimony may be heard and considered”) and credibility (“a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for hepatitis C. The Veteran contends that his currently diagnosed hepatitis C is related to service. Specifically, he contends that he received hepatitis C through the use of injectors, known as “air injectors,” upon his entry into military service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of hepatitis C, and evidence shows that he received injections in-service, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of hepatitis C began during service or is otherwise related to an in-service injury, event, or disease. The Veteran's service treatment records (STRs) are absent for complaints, findings or diagnoses of hepatitis during service. VA treatment records show the Veteran was diagnosed with hepatitis C in January 1977. A November 1977 treatment record notes that the Veteran reported being diagnosed with hepatitis “1 year ago from dirty needles used for illegal IV drug use (heroin).” In an April 2016 VA Hepatitis, Cirrhosis and other Liver Conditions examination, the VA examiner opined that It is my medical opinion that the Veteran's hepatitis C is less likely than not (i.e. probability < 50%) was caused by his time in the service. The Veteran served a brief tour of duty from Sept 25, 1975 to March 23, 1976. During that time, his enlistment showed tract marks in his antecubital fossa which was rescinded with a line drawn over this statement as he denied any drug use at the time. He was referred to mental health consultation due to unsatisfactory performance of his duty. This included mental dullness, ineptness, mood swings, impulsivity and questioned the use of drugs. He was referred for further evaluation and was found on 13 February 1976 to have evidence of heroin abuse. He was transferred to the Dix House for rehabilitative services but was discharged shortly thereafter. Since IV drug use is a known factor for transmission of HCV, his brief stint in the military showing the presence of questionable track marks at time of enlistment exam and documentation of heroin use while in service, suggests the existence of a drug use problem prior to entry into the military. There is no evidence of head trauma or a diagnosis of psychosis that was noted while in service. This diagnosis cannot be made while the patient is actively engaged in drug use. Lastly, the use of the "air gun" technology is not included as a known risk factor for transmission of disease at this time. The probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician’s access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Here, the April 2016 opinion was provided by a VA medical professional who possesses the necessary education, training, and expertise to provide the requested opinions. Additionally, the opinion is also shown to have been based on a review of the Veteran’s record and is accompanied by a sufficient explanation as to why the Veteran’s hepatitis C was not caused by the use of air injectors and is otherwise unrelated to service. Furthermore, there is no competing medical opinion of record. The Board thus finds that the April 2016 opinion is dispositive of the issue at hand. There is no opinion or medical evidence to the contrary. The probative medical opinion of record relates the Veteran's hepatitis C to IV drug use after service. However, there is evidence that the Veteran engaged in IV drug use prior to service. See Report of Medical Examination, dated September 1975. This also raises the possibility that the Veteran engaged in IV drug use in service which caused his hepatitis C. A veteran cannot receive VA benefits for a disability that is the result of willful misconduct or the abuse or alcohol or drugs. 38 U.S.C. § 105; 38 C.F.R. § 3.301. The use of illegal drugs constitutes willful misconduct, and service connection for hepatitis C based on IV or intranasal drug abuse cannot be established on those grounds. Conversely, service connection is not precluded if substance abuse is secondary to a service-connected disability, such as if the Veteran used alcohol and/or drugs to mask or self-medicate his mental disorder. Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). The Board has considered the holding in Allen but notes that the Veteran has not contended, and the record does not demonstrate, that the Veteran’s prior drug use was attributable to a service-connected disability. Therefore, the Board concludes that the use of IV drugs in service would be considered willful misconduct and preclude the grant of service connection for hepatitis C. The Veteran believes his hepatitis C is related to an in-service injury, event, or disease. The Board has considered the Veteran's reports attributing his hepatitis C to service, specifically to air gun inoculations, but the evidence of record does not demonstrate that the Veteran has the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. The issue is medically complex, as it requires knowledge of pathology and etiology. Therefore, it is outside the competence of the Veteran in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the April 2016 VA examination. In reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim, the doctrine is not for application. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for a respiratory disorder. The Veteran contends that his current respiratory disorders are related to his military service. Specifically, he contends that his respiratory disorders are related to exposure to chemicals during his six months of military service. The Veteran’s VA treatment records indicate that he has current diagnoses of asthma and chronic obstructive pulmonary disease (COPD). Service treatment records indicate that the Veteran was treated for upper respiratory infections during service. See e.g. September, October and November 1975 service treatment records. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of asthma and COPD, and evidence shows that upper respiratory infections occurred, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of asthma and/or COPD began during service or is otherwise related to an in-service injury, event, or disease. VA treatment records show the Veteran was not diagnosed with breathing conditions, to include asthma and COPD until 1990 at the earliest, approximately 25 years after his separation from service. The Veteran submitted a July 2016 letter from a VA physician, Dr. M.M., who opined that I conclude that the patient has both emphysema and asthma. Overall, he has a severe pulmonary impairment, despite a relatively light smoking history. I conclude that it is more likely than not that respiratory exposures from his military service in the 1970's in South Carolina when he breathed diesel fumes and cleaning fluids extensively contribute to his persistent respiratory difficulties since that time. In October 2016 VA opinion, a doctor specializing in pulmonary medicine opined that After this review my opinion is that the above patient suffers from severe chronic obstructive pulmonary disease, likely a combination of chronic severe persistent asthma and emphysema. While the patient has a significant current disability from this condition, the etiology is more as likely as not to have originated after 1976 (the period of military service) and there is not accurate or reliable exposure history to support a claim of etiology in the service. Given that he spent time at at least 2 military facilities (South Carolina and Fort Dix) and total service was 6 months or less, there is not a significant temporal burden for toxic exposures and there are no military records of a single exposure to a known causative agent like nitrogen dioxide or burn pits. Rather, the patient has had an extensive social history with known abuse of substance known to cause fixed airflow obstruction or to accelerate an underlying bronchospastic condition such as asthma, namely crack cocaine and IV heroin. Thus, on balance the current respiratory condition (obstructive lung disease) cannot be definitely attibuted in etiology to his military service. The record contains conflicting medical opinions regarding whether the Veteran’s asthma and/or COPD is at least as likely as not related to an in-service injury, event, or disease, including exposure to chemicals in service. The October 2016 VA examiner opined that it was not. The rationale was that the length of exposure was not significant, and that there was no indication that the respiratory conditions were related to service, but rather, likely related to post-service conduct, to include smoking and illegal drug use. The VA examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The VA practitioner, Dr. M.M. opined that it was. The rationale was that the Veteran was exposed to chemicals due to his persistent breathing in of diesel fuel and other chemicals in “the 1970s.” Dr. M.M. did not provide any additional support for his opinion including knowledge of the actual extent of exposure. This opinion is, however, less probative than the VA examiner’s opinion. There is no indication that M.M. examined or considered the Veteran’s service treatment record or other pertinent medical evidence in the claims file. Instead, the opinion appears to be based on the Veteran’s self-reported medical and service history, which is inconsistent with persistent exposure to chemicals. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). Consequently, the Board gives more probative weight to the October 2016 VA examiner’s opinion. There is no other contrary opinion or evidence to support the Veteran’s claim. The Veteran believes his asthma and COPD is related to an in-service injury, event, or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of pathology and etiology. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the October 2016 VA opinion. In reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim, the doctrine is not for application. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael J. O’Connor 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.