Citation Nr: 21067688 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 10-42 096 DATE: November 5, 2021 REMANDED Entitlement to service connection for hepatitis C, to include as secondary to service-connected disability, is remanded. REASONS FOR REMAND The Veteran had qualifying active service from November 1964 to June 1966 considered honorable for VA purposes, and an additional period of active service from June 1966 to October 1969 considered dishonorable for VA purposes. That latter period includes the Veteran's service in Vietnam from June 1966 to June 1967. This case comes before the Board of Veterans' Appeals (the Board) from an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. On July 6, 2021, the United States Court of Appeals for Veterans Claims (Court or CAVC) issued a Joint Motion for Remand (JMR) that remanded the issue of a hepatitus service connection claim back to the Board for reconsideration consistent with the terms of the motion. See Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006). Pursuant to the Court's remand and Kutscherousky v. West, the Board issued a 90-day letter to the Veteran and his representative dated July 27, 2021 notifying them of their ability to submit additional evidence or argument in support of their appeal within 90 days. 12 Vet. App. 369 (1999) (per curiam); see 38 C.F.R. § 20.1304. The Veteran and his representative submitted no new evidence, and thus the Board will proceed to consider the JMR in this case. See Clark v. O'Rourke, 30 Vet. App. 92 (2018). The substance of the Court's JMR will be discussed further below. In April 2015, May 2016, June 2017, and September 2018, the Board remanded the above issue. Based on the Court's JMR, the issue must again be remanded. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for hepatitis C, to include as secondary to service-connected disability, is remanded. 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, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran 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-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or the result of service-connected disease or injury, or that service-connected disease or injury has chronically worsened the nonservice-connected disability for which service connection is sought. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). In general, for service connection to be granted for hepatitis C, the evidence must show that a Veteran's hepatitis C infection, risk factor(s), or symptoms were incurred in or aggravated by service. The evidence must further show by competent medical evidence that there is a relationship between the claimed in-service injury and the Veteran's hepatitis C. Risk factors for hepatitis C include intravenous (IV) drug use, blood transfusions before 1992, hemodialysis, intranasal cocaine, high-risk sexual activity, accidental exposure while a health care worker, and various kinds of percutaneous exposure such as tattoos, body piercing, acupuncture with non-sterile needles, shared toothbrushes or razor blades. See VBA (Veterans Benefits Administration) letter 211B (98-110) November 30, 1998. A VA "Fast Letter" issued in June 2004 (Fast Letter 04-13, June 29, 2004) identified "key points" that included the fact that hepatitis C is spread primarily by contact with blood and blood products, with the highest prevalence of hepatitis C infection among those with repeated, direct percutaneous (through the skin) exposure to blood (i.e., intravenous drug users, recipients of blood transfusions before screening of the blood supply began in 1992, and hemophiliacs treated with clotting factor before 1987). Another "key point" was the fact that hepatitis C can potentially be transmitted with the reuse of needles from tattoos, body piercing, and acupuncture. The Fast Letter indicates that the large majority of hepatitis C infections can be accounted for by known modes of transmission, primarily transfusion of blood products before 1992, and injection drug use. The Veteran originally filed a claim for service connection for hepatitis C in July 2010. His original theory of his hepatitis C origin was that during Vietnam service, he was exposed to human blood when tasked to pick up and move dead bodies. The Veteran's service treatment records show no record of any hepatitis diagnosis or treatment in active service. Later statements and examinations indicate other possibilities, to include inconsistent statements regarding intravenous drug use. The Veteran's representative posited a theory in an August 2018 brief that the Veteran's diagnosed acquired psychiatric disorders, including PTSD, anxiety, depression, and polysubstance abuse, contributed to the Veteran's diagnosis of his hepatitis C. As noted above, the Court vacated and remanded the Board's October 2020 decision. The Court, in its Joint Motion for Remand (JMR), called attention to the that April 2019 VA examiner's determination regarding any substance use disorder and the etiology of the Veteran's hepatitis C. The Court noted that examiner's statements in his April 2019 opinion were contrary to the finding of Allen v. Principi, 237 F.3d 1368, 1381 (Fed. Cir. 2001), a decision that found that compensation is available "for veterans suffering from alcohol or drug abuse resulting secondarily from a service-connected disorder, such as PTSD." No. 21-0478, 2021 U.S. App. Vet. Claims (July 6, 2021) (unpublished). The Board notes the Veteran is currently service connected for posttraumatic stress disorder (PTSD) since December 11, 1997, with a 70 percent evaluation from April 21, 2010. The Veteran is service-connected for coronary artery disease, also from December 11, 1997. The Veteran currently receiving a total disability evaluation due to individual unemployability (TDIU) from April 21, 2010. VA Law and Policy Character of Discharge A discharge or release from active service under "conditions other than dishonorable" is a prerequisite to entitlement to VA pension or compensation benefits. 38 U.S.C. § 101(18); 38 C.F.R. § 3.12(a). A discharge under "honorable conditions" is binding on VA. 38 C.F.R. § 3.12(a). There are two types of character of discharge bars to establishing entitlement for VA benefits: (1) statutory bars found at 38 U.S.C. § 5303(a) and 38 C.F.R. § 3.12(c), and (2) regulatory bars listed in 38 C.F.R. § 3.12(d). As to the regulatory bars, a discharge or release for one of the following offenses is considered to have been issued under dishonorable conditions, to include willful and persistent misconduct (this includes a discharge under other than honorable conditions, if it is determined that it was issued because of willful and persistent misconduct). 38 C.F.R. § 3.12(d). Because the Veteran has a period of dishonorable service, that period would be relevant in determining whether a disability manifested to a compensable degree within one year of discharge from an honorable period of service, or to establish continuity of symptomatology. "Willful misconduct" means an act involving conscious wrongdoing or known prohibited action. A service department finding that injury, disease, or death was not due to misconduct will be binding on VA unless it is patently inconsistent with the facts and the requirements of laws administered by VA. 38 C.F.R. § 3.1(n). Willful misconduct involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. A discharge because of a minor offense, however, will not be considered willful and persistent misconduct if service was otherwise honest, faithful, and meritorious. A mere technical violation of police regulations or ordinances will not per se constitute willful misconduct. Willful misconduct will not be determinative unless it is the proximate cause of injury, disease, or death. 38 C.F.R. § 3.1(n)(1). VA Law and Policy Alcohol and Substance Abuse The Veteran's record and statements by some medical examiners indicate a history of alcohol and substance abuse during and after active service. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that compensation cannot be awarded pursuant to 38 U.S.C. §§ 1110, 1131 and 38 C.F.R. § 105(a) either for a primary substance abuse disability incurred during service or for any secondary disability that resulted from primary substance abuse during service. Allen v. Principi, 237 F.3d 1368, 1376 (Fed. Cir. 2001). Direct service connection may be granted only when a disability was incurred or aggravated in line of duty, and not the result of the Veteran's own willful misconduct or, for claims filed after October 31, 1990, the result of his abuse of alcohol or drugs. 38 U.S.C. § 105; 38 C.F.R. § 3.301(a). Willful misconduct is defined as an act involving conscious wrongdoing or known prohibited action. It involves deliberate or intentional wrongdoing with knowledge or wanton and reckless disregard of its probable consequences, to include the abuse of alcohol or drugs. 38 C.F.R. § 3.301(a). For the purposes of this paragraph, alcohol abuse means the use of alcoholic beverages over time, or such excessive use at any one time, sufficient to cause disability to or death of the user; drug abuse means the use of illegal drugs (including prescription drugs that are illegally or illicitly obtained), the intentional use of prescription or non-prescription drugs for a purpose other than the medically intended use, or the use of substances other than alcohol to enjoy their intoxicating effects. 38 C.F.R. § 3.301(d). See also 38 U.S.C. § 105; 38 C.F.R. § 3.1(m). Given the April 2019 VA examiner misapplied the VA law and policy regarding polysubstance abuse for the Veteran's hepatitis C service connection claim, the Board finds the matter must be remanded for a VA addendum opinion to assess the Veteran's hepatitis C service connection claim pursuant to the proper law and procedure as noted above, to include as secondary to service-connected disability. The matters are REMANDED for the following action: 1. Obtain any pertinent outstanding VA treatment records and associate them with the claims file. Contact the Veteran and request that he identify any pertinent private treatment records not already identified and obtained and, with the appropriate authorization, attempt to obtain those records and associate them with the claims file. 2. After the above records search is complete, obtain a VA addendum medical opinion by a VA examiner qualified to evaluate the nature and etiology of the Veteran's claimed hepatitis C condition. The claims file must be made available to and reviewed by the examiner. The Veteran need not be present for an examination unless the VA examiner deems it necessary to evaluate this remand. After reviewing the claims file and examining the Veteran, the examiner should answer the following question: (a.) Whether it is at least as likely as not (probability of 50 percent or greater) that the Veteran's claimed hepatitis C had its onset in service or is otherwise related any to any in-service disease, event, or injury. (b.) If not, is it at least as likely as not (probability of fifty percent or greater) that the hepatitis C disability was caused by the Veteran's service-connected PTSD disability or any other service-connected disability? (c.) If service-connected disability did not cause the hepatitis C disability, is it at least as likely as not (probability of fifty percent or greater) that the hepatitis C was aggravated (an increase in severity) by the service-connected disability? (d.) If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of the hepatitis C by the service-connected disability. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. The VA examiner chosen to provide the opinion is reminded to consider the effects of the period of the Veteran's service that is considered dishonorable for VA purposes, and also to consider the Veteran's documented polysubstance abuse along with prescribed law and policy pursuant to 38 C.F.R. § 3.301 and Allen v. Principi, 237 F.3d 1368, 1376 (Fed. Cir. 2001). 3. Thereafter, readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112(2). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Setter, 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.