Citation Nr: 21014502 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 12-33 780A DATE: March 12, 2021 ORDER Service connection for hepatitis C with hepatic stenosis, to include as due to substance abuse secondary to service-connected paranoid schizophrenia, is granted. FINDING OF FACT The evidence is in equipoise regarding whether the Veteran’s hepatitis C with hepatic stenosis is due to substance abuse secondary to service-connected paranoid schizophrenia. CONCLUSION OF LAW The criteria for service connection for hepatitis C with hepatic stenosis are met. 38 U.S.C. §§ 105, 101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.301, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1973 to January 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The claim was remanded for further development in December 2016, June 2018, September 2019, and February 2020. It is now back before the Board for adjudication. Service Connection Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability. In such an instance, the veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In deciding the Veteran's claim, VA is responsible for determining 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, 53-56 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran contends that his hepatitis C is due to substance abuse caused by his service-connected paranoid schizophrenia. The claim was filed in February 2009. The Board notes that with respect to claims filed after October 31, 1990, service connection may not be granted for substance abuse on the basis of service incurrence or aggravation. 38 U.S.C. §§ 105, 1131; 38 C.F.R. § 3.301(a); VAOPGCPREC 2-98. However, the law does not preclude a veteran from receiving compensation for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, a veteran's service-connected disability. Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). In the present case, the Veteran’s claim was filed after October 31, 1990, thus service connection on a direct incurrence basis cannot be granted for any disability resulting from abuse of alcohol or drugs in service. Essentially, the Veteran has primarily asserted he became a drug user as a result of his service-connected paranoid schizophrenia, which caused him to contract hepatitis C with hepatic stenosis. Upon review, the Board finds that the evidence is sufficient to warrant a grant of service connection for hepatitis C with hepatic stenosis. Initially, the Board finds that the evidence is at least in equipoise as to the existence of hepatitis C with hepatic steatosis during the claims period. Of note, records reflect that lab screenings done in the 1990s revealed that the Veteran was positive for the Hepatitis C Virus (HCV) antibody and that in February 2015 he was treated with the proprietary oral antiviral combination Harvoni (ledipasvir/sofosbuvir). Although current records show that the Veteran has had no appreciable HCV viral load detected since March 2015 and is considered to have sustained viral remission, reasonable doubt will be resolved in favor of the Veteran to find a present disability. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (holding that the requirement that a current disability is present is satisfied when a claimant has a disability at any time during the pendency of the claim). The Veteran is service-connected for paranoid schizophrenia; therefore, the first two elements for secondary service connection have been met. 38 C.F.R. § 3.310(a). The remaining questions are whether the Veteran’s substance abuse resulted in his hepatitis C and whether his service-connected paranoid schizophrenia caused his substance abuse. As to the first question, a December 2019 VA medical opinion stated that medical evidence supports the notion that IV drug use and intranasal cocaine use are high risk factors for contracting HCV and concluded that it is more likely than not that it was the source of the Veteran’s HCV. Now, the Board must also address whether the Veteran’s drug use was a result of his paranoid schizophrenia. The Board notes that there are multiple medical opinions regarding whether the Veteran’s service-connected paranoia schizophrenia caused his drug use. In comparing the probative value of VA medical opinions provided in November 2019, March 2020, June 2020 and September 2020, the Board finds that the evidence weighs in favor of the Veteran’s service-connected psychiatric disability causing or resulting in his substance abuse. The Board recognizes that there are conflicting VA opinions that found the hepatitis C with hepatic steatosis less likely than not related to the service-connected paranoid schizophrenia. These competing medical opinions put the secondary nexus question, at most, in equipoise. Resolving reasonable doubt in favor of the Veteran, service connection for hepatitis C with hepatic stenosis on a secondary basis is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Hughes 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.