Citation Nr: 21012732 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 16-61 498 DATE: March 5, 2021 ORDER The appeal pertaining to the issue of entitlement to service connection for a cold injury to the right hand is dismissed. The appeal pertaining to the issue of entitlement to service connection for a cold injury to the right foot is dismissed. The appeal pertaining to the issue of entitlement to service connection for a cold injury to the left little finger is dismissed. The appeal pertaining to the issue of entitlement to service connection for a cold injury to the left big toe is dismissed. Service connection for hepatitis C is granted. Service connection for cirrhosis of the liver is granted. REMANDED Entitlement to service connection for a traumatic brain injury (TBI) is remanded. FINDINGS OF FACT 1. Prior to promulgation of a decision, in July 2017, the Veteran withdrew his appeal pertaining to the issues of entitlement to service connection for cold injuries of the right hand, right foot, left little finger, and left big toe. 2. Hepatitis C is proximately due to the Veteran’s service-connected posttraumatic stress disorder (PTSD) with unspecified depressive disorder and other substance use disorder. 3. Cirrhosis of the liver is proximately due to the Veteran’s service-connected PTSD with unspecified depressive disorder and other substance use disorder, and hepatitis C. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the issues of entitlement to service connection for cold injuries of the right hand, right foot, left little finger, and left big toe by the Veteran are met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 2. The criteria for service connection for hepatitis C are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for service connection for cirrhosis of the liver are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1973 to July 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in February 2015 by a Department of Veterans Affairs (VA) Regional Office. In December 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. At such time, the Veteran waived Agency of Original Jurisdiction (AOJ) consideration of the evidence associated with the record since the issuance of the May 2017 supplemental statement of case. 38 C.F.R. § 20.1305(c). The undersigned also held the record open for 30 days for the submission of additional evidence; however, none has been received to date. 1. Entitlement to service connection for a cold injury to the right hand. 2. Entitlement to service connection for a cold injury to the right foot. 3. Entitlement to service connection for a cold injury to the left little finger. 4. Entitlement to service connection for a cold injury to the left big toe. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In addition, for withdrawals not made on the record at a Board hearing, such must be in writing and include the file number and a statement that the appeal is withdrawn. Hembree v. Wilkie, 33 Vet. App. 1 (2020). In the instant case, prior to the promulgation of a decision, in July 2017, the Veteran withdrew his appeal pertaining to above captioned issue. In this regard, such statement was in writing, authored by the Veteran, included the correct file number, and explicitly identified the issues to be withdrawn. Therefore, there remain no allegations of errors of fact or law for appellate consideration in regard to the aforementioned issues. Accordingly, the Board does not have jurisdiction to review the appeal of such issues and they are dismissed. 5. Entitlement to service connection for hepatitis C, to include as secondary to PTSD with unspecified depressive disorder and other substance use disorder. 6. Entitlement to service connection for cirrhosis of the liver, claimed as secondary to hepatitis C. The Veteran contends that his hepatitis C is related to his military service or, in the alternative is caused or aggravated by his PTSD with unspecified depressive disorder and other substance use disorder. In regard to the former theory of entitlement, in documents of record and at the December 2020 Board hearing, he reported that he may have been exposed to hepatitis C as a result of being treated by a military dentist with tools that were not properly sanitized, sharing razors in the field, being stabbed with a corkscrew, and/or being inoculated with an unsterilized air gun. The Veteran further contends that his cirrhosis of the liver is a result of his hepatitis C. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). There are recognized risk factors for contracting hepatitis C that should be taken into consideration when developing and adjudicating a claim of service connection. The medically recognized risk factors are: transfusion of blood or blood products before 1992; organ transplant before 1992; hemodialysis; tattoos; body piercing; intravenous drug use (due to shared instruments); high-risk sexual activity (risk is relatively low); intranasal cocaine use (due to shared instruments); accidental exposure to blood products in health care workers or combat medic or corpsman by percutaneous (through the skin) exposure or on mucous membrane; and other direct percutaneous exposure to blood such as by acupuncture with non-sterile needles or by the sharing of toothbrushes or shaving razors. As an initial matter, the Board notes that the record reflects that the Veteran has a current diagnosis of hepatitis C as of 2005 as reflected in his treatment records and a February 2015 VA examination. Additionally, in support of his claim, his VA physician submitted a statement in September 2014 indicating that it was biologically plausible that the Veteran may have contracted hepatitis C due to reported in-service jet injector inoculation. However, as such is couched in speculative terms, it is insufficient to establish service connection. Further, while the Veteran stated at his December 2020 Board hearing that he did not engage in intravenous drug use, the remainder of the evidence of record, to include his own statements therein, reflect such usage. Finally, he is service-connected for PTSD with unspecified depressive disorder and other substance use disorder. In this regard, at a February 2015 VA examination, the examiner identified the Veteran’s multiple risk factors for hepatitis C as intravenous drug use or intranasal cocaine use, high risk sexual activity, body piercings, and tattooing on the arms, chest, and back. In this regard, he noted that, per an April 2006 VA mental health clinic note, the Veteran began using illicit drugs, to include intravenously, in the military and, after his separation, continued to intermittently use drugs (mostly cocaine). Thus, the examiner opined that it was less likely than not that his hepatitis C was caused by the claimed in-service events. In this regard, he found that there was no mention of any hepatitis-like symptoms or hepatitis in service, a life insurance physical in the late 1990’s did not mention hepatitis, and there was clear and unmistakable documentation of multiple risk factors, including intravenous drug use. Further, he noted that, while it was biologically plausible that the Veteran may have contracted hepatitis C due to reported in-service jet injector inoculation, he had other multiple risk factors that were more biologically probable. In regard to the Veteran’s intravenous and intranasal drug usage, at a January 2015 VA examination, the examiner found that, in addition to his depressive disorder, he had diagnoses of alcohol use disorder, cannabis use disorder, and cocaine use disorder, which the examiner noted pre-dated his hepatitis C diagnosis by many years. An April 2016 VA treatment record also reflects that the Veteran had a history of substance use beginning during his military service, which included injected drugs, and likely put him at risk for hepatitis C. A March 2017 VA examination reflects a diagnosis of other substance use disorder secondary to PTSD and, based on such examination, service connection for PTSD, unspecified depressive disorder, and other substance use disorder was granted. Similarly, at a September 2019 VA examination, other psychoactive substance abuse was diagnosed in addition to PTSD. Based on the foregoing, the Board finds the February 2015 VA examiner’s opinion that the Veteran’s hepatitis C is likely due to post-service risk factors, to include intravenous drug use and intranasal cocaine use, highly probative and, as noted previously, such substance use disorder has been found to be secondary to his service-connected PTSD with unspecified depressive disorder and other substance use disorder. Furthermore, the February 2015 VA examiner opined that the Veteran’s currently diagnosed cirrhosis of the liver, which was diagnosed in April 2006, was recognized to be a complication of his hepatitis C and alcohol use. Thus, the Board likewise finds that such disorder is proximately due to his service-connected PTSD with unspecified depressive disorder and other substance use disorder, and hepatitis. Accordingly, service connection for hepatitis C and cirrhosis of the liver is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 7. Entitlement to service connection for a TBI. The Veteran claims that he has a current diagnosis of TBI that was incurred during his military service. Specifically, at the December 2020 Board hearing, he described several in-service head injuries, to include being hit in the head with a pugil stick, being hit during an altercation with military police, and being hit in the head during fights that broke out in the mess hall. The Veteran’s July 1973 entrance examination reflects that he had received a head injury during a motor vehicle accident that occurred earlier that year; however, no residuals were noted on examination and his treating physician provided a note indicating that he had recovered from his recent injury, was able to resume full activities, and no residual disability existed. In March 1974, the Veteran sought treatment for headaches secondary to his motor vehicle accident, and additional records reflect his attempt to break up fights within his unit in November 1975. VA treatment records reflect that the Veteran was afforded extensive neurological evaluations in December 2013 and April 2016, at which time he reported multiple head injuries before, during, and after his military service, and TBI, cognitive disorder, and mild neurocognitive disorder were diagnosed. At the latter evaluation, the treatment provider indicated that the Veteran may have had a characterological predisposition to violence or impulsivity and his early head injury could have resulted in impaired judgment and diminished ability to regulate his emotions and inhibit his aggressive impulses, which appear to have led to further involvement in violent situations and additional head injuries. Furthermore, while the Veteran’s VA psychiatric examinations contain conflicting information as to the presence of a TBI, such were not performed for the purpose of evaluating his claimed TBI. Consequently, as the record contains evidence of a current diagnosis of TBI with mild neurocognitive disorder and reports of head injuries before, during, and after service, the Board finds that a remand is necessary in order to obtain a VA examination addressing the nature and etiology of the Veteran’s claimed TBI and residuals. The matter is REMANDED for the following action: Afford the Veteran a VA examination to determine the nature and etiology of his TBI conducted by an appropriate examiner, i.e., a psychiatrist, physiatrist, neurosurgeon, or neurologist. The record, to include a copy of this Remand, should be provided to the examiner, and any indicated evaluations, studies, and tests should be conducted. Thereafter, the examiner should address the following inquiries: (A) Identify all current diagnoses of a TBI or residuals thereof, to include mild neurocognitive disorder. (B) Is there clear and unmistakable evidence that the Veteran’s TBI, or any residuals thereof, pre-existed his entry to service in July 1973? In offering such opinion, the examiner should consider the fact that the Veteran’s July 1973 entrance examination reflects that he had received a head injury during a motor vehicle accident that occurred earlier that year; however, no residuals were noted on examination and his treating physician provided a note indicating that he had recovered from his recent injury, was able to resume full activities, and no residual disability existed. (i) If there is clear and unmistakable evidence that a disorder pre-existed service, the examiner is asked to opine as to whether there is clear and unmistakable evidence that the pre-existing disorder did not undergo an increase in the underlying pathology during service, i.e., was not aggravated during service. If there was an increase in the severity of the disorder, the examiner should offer an opinion as to whether such increase was clearly and unmistakably due to the natural progress of the disease. (ii) If there is no clear and unmistakable evidence that a current disorder pre-existed service, then the examiner is asked whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disorder is directly related to service, to include the Veteran’s reports of incurring head injuries when hit with a pugil stick, during altercations with military police, and during during fights that broke out in the mess hall. In offering such opinions, the examiner should consider a March 1974 service treatment record that reflects that the Veteran sought treatment for headaches secondary to his motor vehicle accident, a November 1975 service treatment record that reveals his attempt to break up fights within his unit, and the April 2016 VA treatment record detailing his TBI work up, with the conclusion that he may have had a characterological predisposition to violence or impulsivity and his early head injury could have resulted in impaired judgment and diminished ability to regulate his emotions and inhibit his aggressive impulses, which appears to have led to further involvement in violent situations and additional head injuries. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Breckenridge, 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.