Citation Nr: 21023440 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 15-13 855 DATE: April 20, 2021 ORDER The claim for service connection for hepatitis C is denied. REMANDED The claim for service connection for a left knee condition is remanded. FINDING OF FACT The October 2019 VA examination and opinion found that the Veteran’s condition of hepatitis C was most likely due to a pattern of substance abuse involving drug usage during his service when he was stationed overseas, which is considered by VA regulation to be willful misconduct. CONCLUSION OF LAW The criteria are not met for service connection for hepatitis C. 38 U.S.C. §§ 105, 1110, 1131, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.301(d), 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the Air Force from January 1971 to June 1975. A December 2018 Board decision/remand, in relevant part, remanded these matters for further development, specifically, the scheduling of VA Compensation and Pension examinations on the etiology of the conditions claimed, whether due to an incident of service. Those actions have been completed and there was substantial compliance with the remand directives for the issue discussed below on the merits. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The case has since returned for further appellate review. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist with regards to the issue discussed below on the merits. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The claim for service connection for hepatitis C is denied. Under applicable VA law, service connection is available for current disability resulting from disease contracted or an injury sustained while on active duty service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2020). Service connection also may be granted for disease diagnosed after discharge where incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). If there was chronic disease in service, reappearance at any later date is service-connected, unless clearly due to an intercurrent cause. If not chronic, there must be continuity of symptomatology to link in-service disability to post-service condition. See 38 C.F.R. § 3.303(b); but see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (continuity of symptomatology principle limited to where involving those diseases already listed as “chronic” under 38 C.F.R. § 3.309(a)). VA law and regulations preclude granting service connection for a disability that originated due to substance abuse, as this is deemed to constitute willful misconduct on the part of the claimant. See U.S.C. § 105; 38 C.F.R. § 3.301(d). See also VAOPGCPREC 7-99, 64 Fed. Reg. 52,375 (June 9, 1999). The United States Court of Appeals for the Federal Circuit (“Federal Circuit”), however, held in Allen v. Principi, 237 F.3d 1368, 1381 (Fed. Cir. 2011) that there is a limited exception to this doctrine when there is “clear medical evidence” establishing that a claimed condition involving alcohol or drug abuse was acquired secondary to a service-connected disability, itself not due to willful misconduct. As the basis for this claim, the Veteran has indicated as to relevant in-service history, it was highly probable he was exposed to hepatitis C while in Thailand from 1974 to 1975. He stated that he had some probable symptoms of that condition during service (for which as known a test was not readily available until the early 1990s). This was at the same time when having treatment for various sexually transmitted diseases. The Veteran indicated that he was also treated for detoxification from heroin use on eight instances while in Thailand. Service personnel records reflect that while in Thailand the Veteran underwent on one or more occasions a drug counseling and rehabilitation program. There was a self-admitted history of heroin usage that began while he was overseas. In April 1975, the Veteran separation from service, following an administrative discharge board finding of continued drug use and stated failure to successfully complete a course of rehabilitee. The VA outpatient treatment records on file reflected a diagnosis of hepatitis C initially in March 2001, after the Veteran had been referred for clinical evaluation by a private treatment provider. Subsequently, a VA examination was done October 2019, indicating the following medical history, treatment record dated January 2011 reported positive since the 1970s, treated with infectious disease consult 2011, past history of drug and alcohol abuse. The Veteran had undergone biopsy, multiple CT scans and received Harvoni treatment in 2012. He continued to report feeling tired, itching, stomach pain and joint pain. The diagnosis was hepatitis C. The status of the condition was listed as being active since 2015. The symptoms included fatigue, constipation, episodes of itching, sleep pattern disturbance, regurgitating. The VA examiner then notated the following on review of the evidence: DD 214 does list 272 days service in Indochina or Korea after 1964. Entrance exam nor separation examination list abdominal or liver problems. [The Veteran] has performance evaluation noted as outstanding NCO 11NOV1974. 9April1975 discharge proceedings were initiated due to personal abuse of drugs and failure to complete a course of rehabilitation. 14 April1975 [the Veteran] waived his right to discharge board contingent on receiving honorable discharge. [The Veteran] volunteered for the Drug Rehabilitation Program through the Limited Privilege Communications Program 23JAN1973. He entered phase IV 6Feb1975. The Drug Rehabilitation Committee determined [the Veteran] to be unrehabilitatible for lack of cooperation and recommended discharge with referral to VA hospital 3APR1975. He self-reported as an Intravenous heroin user 1973. In 1975 while under going rehabilitation he was found on urinalysis to be positive for morphine. [The Veteran] had received outstanding performance reports for the periods 18NOV1971-11NOV1974. He was recommended for discharge under honorable conditions when it was determined he no longer wished to participate in rehabilitation efforts. Long-term rehabilitation was offered upon discharge with referral to VA hospital 10April1975. There is no documentation supporting his continued rehabilitation up discharge. Separation examination reported no abnormalities and there were no recommendations made for long term rehabilitation. The Veteran reported in service treatment for sexually transmitted disease and during that period also treated for Hepatitis C. These facts present a case for contraction of hepatitis C due to IV drug use in a country that has long been reported as high prevalence Hepatitis C. The VA examiner in providing an opinion on the etiology of hepatitis designated on the examination form that the condition was found at least as likely as not due to service. The stated basis for the opinion was as follows: The Veteran had no issues related to the claimed chronic hepatitis C prior to military service. Documented onset is in the 1990s confirmed by biopsy in 2001, antibody reactivity in 2011. Reports treatment with Harvoni in 2015. There is documented proof of self-reported IV heroin use while stationed in Thailand in the 1970s. People who inject drugs are the highest-risk group for acquiring hepatitis C. There is evidence of current, chronic and continuous treatment and care for hepatitis C now as [the Veteran] is a resident of Bill Nichols State Veterans Home. A nexus has been established. The above medical opinion took into account relevant evidence and background history, then found that the hepatitis C was most likely due to drug use during service, and while stated in terms of a cause and effect, nonetheless did link the condition claimed with a pattern of substance abuse which is not an actionable claim. As indicated, VA law precludes recovery as to claims for service connection that are based on substance abuse. See U.S.C. § 105; 38 C.F.R. § 3.301(d). The opinion considered other possible risk factors for hepatitis C and stated that substance use during service was the more probable factor. It was also based on review of the claims file and relevant medical history. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (the thoroughness and detail of a medical opinion is a factor in assessing the probative value of the opinion). As a result, the opinion carries higher probative weight than the Veteran’s assertions regarding etiology of his hepatitis C. For these reasons, the Board finds that the preponderance of the evidence weighs against the claim for service connection for hepatitis C. VA’s benefit-of-the-doubt doctrine does not apply in these circumstances, and the claim is denied. REASONS FOR REMAND The claim for service connection for a left knee condition is remanded. The record does not provide a current basis upon which to thoroughly consider and adjudicate this matter. The VA examination obtained at the direction of the Board’s prior remand directive did not sufficiently address the question of etiology, rather, seems to have given an incomplete discussion of the background history. To that extent, the opinion cannot be considered to have enough of a foundation to be considered useful in determining whether a left knee condition is due to the Veteran’s service. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). The October 2019 VA examiner’s opinion stated as follows, that the claimed left knee condition was less likely than incurred in or caused by an in-service injury or event. The stated rationale was as follows: Right knee replacement prior to 2011 and continued use and reliance on the left knee increasing symptoms over time. Multiple treatment records since 2011 where his complaints were always listed as pain in the left knee. There is established chronicity of care but not for in-service injury. According to the Board’s review of the record however a December 1994 VA general medical examination did diagnose, in part, “possible early degenerative joint disease, left knee (also with normal x-rays).” The examiner’s report notated further the Veteran had reported ongoing bilateral knee pain. To get a more comprehensive opinion on the issue, another examination and opinion is needed. The matter is REMANDED for the following actions: 1. Obtain the Veteran’s most recent VA outpatient treatment records and associate them with the claims folder. 2. Then, schedule the Veteran for an additional examination with an appropriate clinician for a left knee condition. The claims file must be provided to and reviewed by the examiner in conjunction with the examination. The examiner should initially indicate the current diagnosis of any left knee condition. Then provide an opinion regarding whether the left knee disorder at least as likely as not (50 percent or greater probability) was incurred during military service, or is otherwise etiologically related to service, based on consideration of both the Service Treatment Records (STRs) and the Veteran’s own competent reported lay witness history. In offering the requested opinion, please further state consideration of the December 1994 VA examination report as relevant evidence, including that notation on the report pertaining to left knee degenerative joint disease. The examination report should include an explanation for all opinions stated. If the examiner cannot respond to the inquiries posed without resort to speculation, he or she should further explain why. 3. Then, readjudicate the claim. If the decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. T. Blake Carter Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Lyons, 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.