Citation Nr: 21029029 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 17-63 600 DATE: May 12, 2021 ORDER Entitlement to service connection for hepatitis C is denied. REMANDED Entitlement to service connection for a bilateral hearing loss disability is remanded. Entitlement to service connection for tinnitus is remanded. FINDING OF FACT The Veteran's hepatitis C is related to his intravenous drug use during active service. CONCLUSION OF LAW The criteria for entitlement to service connection for hepatitis C are not met. 38 U.S.C. §§ 105, 1101, 1131, 5107 (2018); 38 C.F.R. §§ 3.1, 3.102, 3.301, 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from May 1976 to May 1980. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). In September 2019, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board notes that in his December 2015 notice of disagreement (NOD), the Veteran raised the issues of entitlement to service connection for an attempted suicide/psychiatric disability and back pain. If the Veteran wants those issues to be considered, he must first file a claim on a standard form prescribed by VA. Service Connection Hepatitis C The Veteran asserts that his hepatitis C was incurred in or is related to his military service. During the September 2019 hearing, he stated that he believed he became infected with hepatitis C from shooting drugs during service. He stated that he used something called scag, i.e., heroin. The Board notes that the hepatitis C virus was not identified until 1989. Prior to that, it was referred to as non-A, non-B hepatitis. The Veteran's service treatment records are unremarkable for any treatment, complaints, or diagnoses related to hepatitis. It is unclear when the Veteran was diagnosed with hepatitis C; however, private treatment records indicate a diagnosis and treatment since at least August 2010. The payment of compensation for a disability that is a result of a Veteran's own alcohol or drug abuse is prohibited by law. 38 U.S.C. § 105(a); 38 C.F.R. §§ 3.1 (m), 3.301(d). Therefore, service connection for the Veteran's hepatitis C as a result of his drug use during service is precluded by law. The Board notes that service-connected disability compensation may be awarded for an alcohol or drug abuse disability secondary to a service-connected disability or use of an alcohol or drug abuse disability as evidence of the increased severity of a service-connected disability. Allen v. Principi, 237 F.3d 1368, 1376 (Fed. Cir. 2001). However, in this case, the Veteran does not have any service-connected disabilities and he has not alleged that his drug use was secondary to a disability related to service. As the disposition of this claim is based on the law, and not the facts of the case, the claim must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). REASONS FOR REMAND The Board finds that additional development is required before the remaining claims on appeal are decided. During the September 2019 hearing, the Veteran testified that he was exposed to acoustic trauma during service and the Board has conceded hazardous noise exposure. He also testified that he first noticed hearing loss shortly after he left service, that his hearing has worsened since he was last examined, and that his tinnitus began during service and has continued since. A VA examination was conducted in April 2015. At that time, the results of the examination did not show that the Veteran had right ear hearing loss that met the threshold requirements to be considered a disability under VA regulation. See 38 C.F.R. §3.385. However, the Veteran testified that his hearing had worsened since then. Therefore, a remand is required for an additional VA examination. Regarding the left ear hearing loss disability, the VA examiner opined that it was less likely than not incurred in or related to service, noting that there was no significant threshold shift during service. The examiner, however, did not address the possibility of any delayed-onset hearing loss, i.e., whether noise exposure during service could cause later hearing loss. Therefore, the Board finds that a remand for an additional VA medical opinion is required. Regarding tinnitus, the April 2015 VA examiner indicated that there was no diagnosis of tinnitus because the condition was not claimed. However, the Veteran filed a claim for service connection for tinnitus and testified that he has had tinnitus since service. Therefore, the Board finds that a remand for an additional VA examination is warranted. In addition, any current outstanding treatment records should be obtained. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA audiological evaluation to determine the nature and etiology of any currently present hearing loss and tinnitus. The claims file must be made available to, and reviewed by the examiner. Any indicated studies must be performed. The examiner should determine whether the Veteran has a hearing loss disability for VA purposes. If so, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present hearing loss is etiologically related to the Veteran's active service. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present tinnitus is etiologically related to the Veteran's active service. In rendering the above opinions, the examiner should consider and address the Veterans' September 2019 hearing testimony that he noticed hearing loss shortly after service and that he noticed tinnitus during service and has had it since service. The examiner should also address the possibility of any delayed-onset hearing loss and/or tinnitus. A rationale for all opinions expressed must be provided. 3. Confirm that the VA examination report and all opinions provided comport with this remand and undertake any other development found to be warranted. 4. Then, readjudicate the issues remaining on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Mishalanie, 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.