Citation Nr: 21072829
Decision Date: 12/06/21	Archive Date: 12/06/21

DOCKET NO. 17-25 164
DATE: December 6, 2021

ORDER

Service connection for hepatitis C, to include as due to inoculation, is denied.

FINDING OF FACT

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 event, injury, or disease.

CONCLUSION OF LAW

The criteria for service connection for hepatitis C, to include as due to inoculation, have not been met. 38 U.S.C. §§ 105, 1110, 5107; 38 C.F.R. §§ 3.159, 3.301, 3.303, 3.1(n).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from August 1972 to February 1974. 

This matter comes before the Board of Veterans' Appeals (Board) from a January 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).

Per his May 2017 VA Form 9, the Veteran requested a Board videoconference hearing, which was scheduled for October 2021. The Veteran did not appear at this hearing and has not requested that the hearing be rescheduled. Accordingly, the Board deems his hearing request withdrawn.

As an initial matter, the Board notes that the Veteran's prior representative requested to withdraw from representing the Veteran in a June 2017 Correspondence. The Board sent a letter to clarify representation and/or provide the Veteran with an opportunity to authorize an organization or person to represent him in August 2019. The Veteran did not respond to his letter; therefore, he is unrepresented. 

The Veteran seeks service connection for hepatitis C, which he contends is due to in-service inoculations. See March 2015 VA 21-526EZ, Fully Developed Claim. 

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires competent VA w/s hepatitis w/s risk evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service; and (3) a causal relationship or nexus between the current disability and any injury or disease during service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009).

For claims filed after October 31, 1990, 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 Veteran was diagnosed with hepatitis C in December 2014 following abnormal results from routine labs. See December 2014 Central Florida Inpatient Medicine Cardiac Catherization Report. He contends that he had been exposed to and had hepatitis C in 1992; however, there is no medical evidence documenting a diagnosis before 2014. See February 2015 Notice of Disagreement.

In October 2014, VA provided the Veteran with a letter detailing hepatitis C risk factors and requesting information as to which risk factors applied to him. The listed risk factors included organ transplant before 1992, transfusions of blood or blood products before 1992, hemodialysis, accidental exposure to blood by health care workers (to include combat medic or corpsman), intravenous drug use or intranasal cocaine use, high risk sexual activity, other direct percutaneous (through the skin) exposure to blood such as by tattooing, body piercing, acupuncture with non-sterile needles, and shared toothbrushes or shaving razors. The Veteran did not respond to this request. As discussed in Wood v. Derwinski, 1 Vet. App. 190, 193 (1991), "[t]he duty to assist is not always a one-way street" and if the Veteran desires help with his claim, he must cooperate with VA's efforts to assist him. To the extent the Veteran's exposure to hepatitis C risk factors has not been fully developed, that is a direct result of the Veteran's failure to respond to VA's request.

Service treatment records reveal no in-service signs, symptoms, risk factors, or diagnosis of hepatitis C. There is no evidence that the Veteran received tattoos or piercings in-service, and his military occupational specialty (MOS) of indirect fire infantryman indicates that he did not serve in a healthcare capacity. Similarly, there is no evidence that the Veteran received an organ transplant, a transfusion of blood or blood products, or underwent hemodialysis in-service. While he received several vaccinations, his immunization records do not specify how these vaccinations were administered. Per his report of medical history at separation, he denied a history of jaundice or hepatitis and did not report any signs or symptoms of hepatitis C. His separation examination similarly noted no abnormalities relevant to hepatitis C nor anything indicative of hepatitis C risk factors such as tattoos, drug abuse, or venereal disease.

Shortly after the Veteran's discharge from service, between August 1975 to December 1975, he was hospitalized for an extended period of time for paranoid schizophrenia, drug abuse, and possible drug-induced psychosis. Per an August 1975 Summary of Hospitalization, the Veteran was found walking along a highway, and reported that he served in the Army in Germany and had been taking drugs, amphetamines, barbiturates, and marijuana since 1968. He tested positive for drugs by an Ohio Drug Scan Report a few days after his admission. Per a December 1975 Correspondence from Cleveland VA Hospital to the RO handling a separate claim for benefits, his provider diagnosed him with drug abuse, including LSD, speed, barbiturates, and marijuana since 1968. None of the records documenting his August 1975 to December 1975 hospitalization indicate which drug(s) were in his system at the time of admission, and he did not specify to providers whether he had recently or had ever administered drugs intravenously or intranasally. 

The Veteran was afforded a VA examination to assess the nature and etiology of his hepatitis C in January 2015. At this examination, the Veteran denied a history of surgeries, blood transfusions, smoking, alcohol use, and illicit drug use (including intravenous drug use), and indicated that he had never worked in the medical field, including when he was in the military. He denied being sexually active and refused to answer questions regarding his history of lifetime sexual partners. The examiner concluded that without the Veteran's full disclosure and cooperation as to all potential risk factors for contracting hepatitis C, including sexual history, she could not render an opinion. 

The Board notes that the RO, in obtaining the above examination, requested that the examiner opine as to whether the Veteran had a diagnosis of hepatitis C "that is at least as likely as not (50 percent or greater probability) incurred in or caused by (the) airgun injections during service." Although this request suggests otherwise, there is no evidence, either in the service treatment records or submitted by the Veteran, that the Veteran received any airgun injection(s) during service. 

The Veteran's post-service treatment records provide no indication or determination as to the etiology of his hepatitis C. Across his more recent VA treatment records from January 2015 to April 2017, the Veteran denied any history of illicit drug use. He similarly denied any history of illegal substance use at his September 2015 VA PTSD examination and separately denied any significant history of mental health treatment.

After review of the lay and medical evidence, the Board finds that service connection for hepatitis C is not warranted. In making this conclusion, the Board notes that there is no evidence that the Veteran's hepatitis C began during service or is otherwise related to an in-service event, injury, or disease other than drug abuse. The Veteran's only contentions as to the nature and etiology of his hepatitis C include: (1) that he had been exposed to and had hepatitis C by 1992, and (2) that his hepatitis C is due to inoculation. He has not indicated why he feels he had hepatitis C in 1992 (such as whether he was experiencing certain signs or symptoms) nor has he indicated why he believes his hepatitis C is due to inoculation.

The Board has considered the Veteran's reports made to VA providers and examiners as related to this claim; however, the Board finds that many of his reports, including those made at the January 2015 VA examination, are not credible. See Miller v. Wilkie, 32 Vet. App. 249, 262 (2020) (holding that "when the record includes the veteran's lay reports, which the Board did not find to be not credible, [the Court] may ordinarily conclude that it made an implicit credibility determination" because "[i]f something as fundamental as the veteran's credibility were an issue, we would expect the Board to say something"). The Board, as the fact finder, must determine the credibility of evidence. When weighing the credibility of evidence, the Board may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and the demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). After determining the competency and credibility of evidence, the Board, as fact finder, must then weigh its probative value. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics and its relationship to other items of evidence").

Here, the Veteran has made multiple statements that are inconsistent with the evidence of record. As noted above, the Veteran reported taking LSD, speed, amphetamines, barbiturates, and marijuana since 1968 and tested positive for drug use during his August 1975 to December 1975 hospitalization for paranoid schizophrenia and drug abuse. However, he has since denied any history of illicit drug use in the course of his VA treatment at his VA examinations. As such, the Board finds that the Veteran's denials of illicit drug use not credible.

Furthermore, as discussed above, the Veteran has not cooperated with VA's efforts to assisted him in developing his claims. He did not respond to VA's October 2014 letter requesting any information, statements, or evidence that he could provide about risk factors for hepatitis C and he was unwilling to answer questions regarding his history of lifetime sexual partners at the January 2015 VA examination. While the January 2015 VA examination was not based on accurate factual history (i.e. with consideration of prior illicit drug use) and the examiner was unable to provide an opinion as to the nature and etiology of his hepatitis C, these deficiencies are specifically due to the Veteran's own omissions. 

The only evidence addressing possible risk factors for hepatitis C either during or after service is the Veteran's August 1975 to December 1975 hospitalization and documented illicit drug use since 1968. To the extent the Veteran's hepatitis C may be due to intravenous or intranasal illegal drug use during service, service connection is prohibited by 38 U.S.C. § 105 and 38 C.F.R. § 3.301(a).

As there is no evidence suggesting that the Veteran's hepatitis C may be related to service, other than as potentially due to abuse of drugs, the Board finds that service connection is not warranted, and the claim is denied. 38 U.S.C. § 1110, 105; 38 C.F.R. § 3.301(a).

 

 

MICHELLE L. KANE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Tierno

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.