Citation Nr: 21064014 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 12-21 847 DATE: October 18, 2021 ORDER Entitlement to service connection for hepatitis C is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his hepatitis C is proximately due to alcohol and/or drug abuse as self-medication to control the symptoms of the service-connected psychological disorders. CONCLUSION OF LAW The criteria for entitlement to service connection for hepatitis C have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from July 1973 to September 1981. This matter came before the Board of Veterans' Appeals ("Board") on appeal from a June 2010 rating decision of the Department of Veterans Affairs ("VA") Regional Office ("RO"). The Veteran testified before the undersigned Veterans Law Judge at a March 2015 videoconference hearing. A transcript of the hearing is associated with the record. In February 2020, the Board denied entitlement to service connection for hepatitis C. The Veteran timely appealed the matter to the United States Court of Appeals for Veterans Claims ("CAVC"), and in a January 2021 order, CAVC granted a Joint Motion for Partial Remand ("JMPR") vacating and remanding the part of the February 2020 Board's decision denying entitlement to service connection for hepatitis C. Subsequently, the Board remanded the matter in May 2021 for additional development. After completing the development, the RO issued a supplemental statement of the case in August 2021, denying entitlement to service connection for hepatitis C and returned the matter to the Board for appellate consideration. Entitlement to service connection for hepatitis C. The Veteran contends that he has hepatitis C, which is related to his military service, including the in-service air gun inoculations; or alternatively secondary to his alcohol and drug abuse for controlling his service-connected psychological disorders. In the February 2010 statement and at the March 2015 Board hearing, the Veteran asserted that he developed hepatitic C due to the in-service air gun inoculations while serving at Fort Gordon and Fort Jackson. Furthermore, in a September 2017 statement, the Veteran asserted that he began using drugs and alcohol to cope with his mental symptoms because he would temporarily forget about these problems. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 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). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310. Secondary service connection requires: (1) a service-connected disability; (2) a nonservice-connected disability; and (3) evidence that the nonservice-connected disability is either (a) proximately due to or the result of the service-connected disability or (b) aggravated (increased in severity) by the service-connected disability and not due to the natural progress of the nonservice-connected disability. Id. In determining whether service connection is warranted for a disability, VA must determine 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 the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990); 38 C.F.R. § 3.102. When seeking service connection (under any theory of entitlement), the threshold requirement is that the evidence demonstrates a current disability at some point during the pendency of the appeal. In the absence of competent evidence showing a current disability, service-connection cannot be established. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (service connection may be warranted if there was a disability present at any point during the claim period, even if it is not currently present). When the record contains a recent diagnosis of disability immediately prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). Thus, the question for the Board is whether the Veteran has hepatitic C that began during service or is at least as likely as not related to an in-service injury, event, or disease, including in-service inoculations; or alternatively proximately due to or the result of alcohol and/or drug abuse for controlling the symptoms of his service-connected psychological disorders. The existence of hepatitis C during the appeal period, from February 2010 to the present, is not in question. The evidence of record indicates that currently the Veteran does not have hepatitis C. In this regard during the June 2021 VA examination, the examiner noted that the Veteran's hepatitis C has been resolved and currently he does not have hepatitis C. However, the examiner noted the onset of hepatitis C in 2009, which was treated two years later and subsequently in 2017, when the Veteran took medication for 6 months and the disease was resolved. Additionally, the April 2009 and April 2010 VA treatment records noted hepatitis C. Also, the August 2018 VA treatment record noted that the Veteran received a 48 week treatment and his lab results showed that Hepatitis C continued to be cured. Hence, there is competent and credible evidence of record that demonstrates the existence of hepatitis C during the appeal period. Therefore, the first element of service connection, i.e., the existence of current disability is met. As far in-service treatment or indication of hepatitis C is concerned, there is no notation or complaints related to hepatitis C or any liver condition during the service. Regarding the relationship of hepatitis C and in-service air gun inoculations, in the October 2015 opinion, the examiner stated that it was less likely as not that the Veteran's hepatitis C was caused or aggravated by his military service. As a rationale, the examiner stated that the service treatment records were silent for a diagnosis of hepatitis or liver disease and the post service treatment records documented a diagnosis of hepatitis C in 2009. The examiner noted that the medical literature did not show a direct causal or etiological link between air gun inoculations and hepatitis C. In the June 2021 medical opinion, the VA examiner stated that there is no evidence that could show that the air gun inoculations in service led to the Veteran's development of hepatitis C because the condition was not diagnosed for over 20 years after service. Consequently, the Board finds the evidence of record demonstrate that the Veteran's hepatitis C is not directly related to military service or the in-service air gun inoculations. Hence, entitlement to service connection for hepatitis C on a direct basis is not warranted. Regarding entitlement to service connection for hepatitis C as secondary to the service-connected psychological disorders, including alcohol and/or drug abuse to cope with psychological disorder, the Board notes that in the September 2020 rating decision, the RO granted service connection for unspecified trauma and stressor-related disorder with major depressive disorder, recurrent and alcohol use disorder in early remission with an effective date of December 10, 2009. This means alcohol use disorder has been etiologically linked to the service-connected psychological disorders and is considered service-connected for purposes of consideration of secondary service connection for any disabilities caused or aggravated by the alcohol abuse. In an October 2017 private medical opinion, the examiner stated that it is at least as likely as not that the Veteran's substance abuse was a form of self-medication for controlling psychological symptoms. In the October 2015 VA medical opinion, the examiner stated that the Veteran's history of cocaine use is a risk factor for hepatitis C. In the May 2021 Board's remand, a medical opinion was requested regarding hepatitis C as secondary to alcohol and/or drug abuse as medication to control the service-connected psychological disorders. Hence, a VA medical opinion was obtained in June 2021, in which the examiner stated that due to majority or complete resolution of hepatitis C it was not possible to say that anything aggravated or worsened it beyond its natural progression. However, the examiner stated that the history of psychological symptoms could have led the Veteran to use drugs, and it is more likely that the Veteran's history of cocaine and alcohol abuse contributed to him contracting hepatitis C either through risky sexual behavior or the use of contaminated needles. Consequently, upon review of the record, and based on the June 2021 VA opinion, the Board finds the evidence is in favor or at least be in equipoise as to whether the Veteran's hepatitis C is proximately due to alcohol and/or drug abuse as medication to control the symptoms of the service-connected psychological disorders. Accordingly, after resolving all doubt in favor of the Veteran, entitlement to service connection for hepatitis C is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tariq, Nadeem, 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.