Citation Nr: 21042454 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 16-63 419 DATE: July 13, 2021 ORDER Service connection hepatitis C is denied. FINDING OF FACT The preponderance of the evidence demonstrates that the Veteran's hepatitis C is related to his intravenous drug abuse during his active service. CONCLUSION OF LAW The criteria for service connection for hepatitis C are not met. 38 U.S.C. § 1101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.301, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1976 to January 1979. In a May 2020 Board decision, the Board denied service connection for hepatitis C. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In March 2021, the Court issued an Order that vacated the Board's May 2020 determination to deny service connection for hepatitis C and remanded the matter on appeal for adjudication consistent with the instructions outlined in the February 2021 Joint Motion for Partial Remand (JMPR) by the parties. The JMPR specifically instructed the Board to address the Veteran's argument that there was no specific evidence revealing the sharing of contaminated needles in the record. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 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). Where drugs are used to enjoy or experience their effects and the effects result proximately and immediately in disability or death, such disability or death will be considered the result of the person's willful misconduct. Id. Service connection for hepatitis C The Veteran seeks service connection for hepatitis C, which he contends he contracted during service "from in-service jet injector vaccinations and from his duties as a medic." See April 2020 Third Party Correspondence. He also reports that he "roomed with a roommate, who was positive for hepatitis C" during his service. See Private Treatment Record received June 2014. Service personnel records document that the Veteran's military occupation specialty was as a medical specialist. See Form DD-214. A review of the Veteran's service treatment records does not reveal documented intravenous drug use. A May 1999 post-service private treatment record documents a diagnosis of hepatitis C and transcribes the Veteran's report that he had a history of "intravenous drug abuse in the late 1970's and late 1980s, although he at this time abstains completely from illicit drugs and ethanol." See Private Treatment Record received October 2004. The Veteran is currently diagnosed with hepatitis C. See May 2014 Letter from Dr. M.P. The key inquiry is whether such is related to his active service, rather than willful misconduct, such as intravenous drug abuse. As will be explained in more detail below, the Board finds that the preponderance of the evidence demonstrates that the Veteran's hepatitis C is related to his intravenous drug abuse during service, and that such abuse constituted willful conduct. As a result, he is barred from establishing service connection for this disability. See 38 C.F.R. § 3.301. In August 2004, during the pendency of the Veteran's initial claim for service connection, the Veteran was provided a VA examination to evaluate the nature and etiology of his hepatitis C. The examiner noted that the Veteran was diagnosed with hepatitis C in 1988 and began treatment for the condition in 1999. During the examination, the Veteran denied a history of intravenous drug abuse or blood transfusions, but did report a history of unsafe sex while in service and working as a medic in service, which he believed were risk factors for hepatitis C. The examiner confirmed the diagnosis of hepatitis C but did not provide an opinion as to etiology of the condition. See August 2004 VA Examination. In March 2005, the same examiner provided an addendum opinion wherein she opined on the etiology of the Veteran's hepatitis C. The examiner confirmed a review of the Veteran's private records in 2009, as well as the reports from the Veteran at the time of the August 2004 examination. The examiner then explained that intravenous drug use was the number one risk factor for hepatitis C with the next possibility being blood transfusion. Based upon the review of the Veteran's history as given in 1999, the examiner found the highest risk factor for his hepatitis C to have been his intravenous drug use in the 1970s and 1980s, with the other factors less likely to have caused the hepatitis C. See March 2005 VA Medical Opinion. In May 2014 the Veteran submitted a private medical opinion that claimed the Veteran's hepatitis C was due to in-service factors other than intravenous drug use, such as medical specialist duties and living with a roommate who was positive for hepatitis C. Notably, however, the opinion contained no rationale for the conclusion, and, accordingly, the Board finds that the May 2014 opinion carries minimal probative weight. See Private Treatment Record received June 2014. In August 2014, a second VA medical opinion was obtained to assess the etiology of the Veteran's hepatitis C. The VA examiner opined that the Veteran's hepatitis C was due to the reported intravenous drug use at the time of his service. In his rationale, the examiner explained that, "sharing of contaminated needles among IV drug users is the most common mode of transmission." Moreover, the examiner held that the risk of hepatitis C virus transmission to health care workers, such as by needle sticks with "HCV-contaminated blood" or "a blood splash to the eye of a worker" was statistically rare. As for the Veteran's argument that he contracted hepatitis C from his roommate during his service, who was positive for the virus, the examiner responded that hepatitis C virus contraction was not possible "by living with, being near, or touching someone with the disease, "without actually "sharing items contaminated with blood," which the Veteran has not argued. The examiner concluded that the Veteran's claimed sources of contracting hepatitis C during service, including immunizations with jet injectors and medical specialist duties, had significantly less likely chance of hepatitis C virus transmission compared to IV drug use. Specifically, the examiner held that the risk of contracting the hepatitis C following a needle stick is about 1.8 percent, with a range of 0 to 10 percent. See August 2014 VA Medical Opinion. As the March 2005 and August 2014 nexus opinions were based on full consideration of all pertinent evidence of record and were supported by clear rationales based on the current clinical statics and studies, the Board places great probative weight to these opinions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In December 2016, the Veteran's private physician, Dr. A.A., submitted a report in support of the Veteran's claim. The physician noted review of and summarized the pertinent in service and post service records and indicated the 1999 note of post intravenous drug use, as well as the subsequent VA medical opinions. The private physician opined that the Veteran more likely than not contracted hepatitis C during his time in service secondary to his work as a medic and in-service injection with a jet injector. The physician based the positive opinion on a Mayo Clinic study and a 1976 PSA/60 Minutes report, which suggested that jet injection guns can cause blood splatter, as well as a Senator's testimony in 2000 suggesting a high level of occurrence of hepatitis C in veterans. The physician discounted the Veteran's own report in 1999 of intravenous drug use and suggested the report should be called into question because it referenced the use of a certain medication as well as the presence of hypertension, which was then not shown in a 2002 report. It is unclear to the Board why unrelated fluctuations in general health call a 1999 report of intravenous drug use into question. The physician also suggested that the past medical history noted in 1999 was, "documented by the physician, and not the [V]eteran." The report gave no reason for the suggestion that the doctor in 1999 would have misreported the medical history provided by the Veteran in 1999. There is no reason to believe that the Veteran did not report to the physician in May 1999, at the time of his initial evaluation following the discovery of hepatitis C, that he had a history of intravenous drug use in the late 1970s and late 1980s. Thus, the Board finds the December 2016 report to lack probative value due to its dismissal of the Veteran's 1999 reported history for unclear reasons. In essence, the opinion provided was not based upon the complete factual history because the physician elected to dismiss a significant portion of that history. See December 2016 Private Treatment Record. The Board acknowledges the Veteran and his representative's contentions that his hepatitis C is related to his active duty, to include as secondary to jet injector vaccinations, and from his duties as a medic. In this regard, the Board emphasizes that the claim under consideration fundamentally turn on the matter of whether there exists a link between the Veteran's claimed hepatitis C and his military service. While lay persons are competent to provide opinions on some medical issues, the diagnoses and etiologies of liver disabilities are complex medical matters in the medical field that fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). As neither the Veteran nor his attorney is shown to have the education, training or experience to competently opine as to diagnosis and medical nexus of the claimed liver disability, the lay assertions in this regard have been assigned minimal probative value, and a significant probative weight has been afforded to the March 2005 and August 2014 nexus opinions for reasons articulated above. The further Board acknowledges the Veteran's reports that he did not participate in illicit drug use during his service, maintaining that there is no actual documentation of such use in the service records and that he has consistently denied such use in August 2004, March 2005, and August 2014 VA examination reports. However, the Board finds significantly more credible his report of in-service intravenous drug use in the May 1999 private treatment record, given that the statement was made in the course of seeking clinical treatment, indicative of a strong motive to tell the truth in order to receive proper care, see Rucker v. Brown, 10 Vet. App.67, 73(1997), especially in light of clinical findings from the March 2005 and August 2014 examiners who have identified such illicit drug use as the most common risk factor for hepatitis C. In short, the Board finds the Veteran's later denials of intravenous drug use to be not credible, in the face of the earlier statements made in private treatment records. That there is no documentation of such IV drug use in service is but one item for the Board to consider. Case law is clear that the lack of documented treatment in service, while probative, cannot serve as the sole basis for a medical conclusion. The Veteran's lay contentions must be considered and weighed in making the determination as to whether a nexus exists. In this case, the Veteran's 1999 lay statements in the context of private treatment are more probative than those made in 2004 and beyond in the VA system from which he was then seeking benefits. Therefore, the Board assigns the Veteran's statements denying in-service illicit drug use significantly less probative weight than the May 1999 report of in-service drug use, as they are not reliable and were made under circumstances indicating bias and/or self-interest. Lastly, the Board acknowledges the Veteran's representative's contention that the record contains no specific evidence showing that the Veteran shared contaminated needles. See April 2020 Third Party Correspondence; June 2021 Third Party Correspondence. In this regard, the representative is correct. Nevertheless, given the credible evidence indicating the Veteran's history of IV drug use, and the probative medical opinions holding that IV drug use was the most likely source of the Veteran's hepatitis C, the Board finds that, despite the lack of specific evidence on the matter, the weight of the evidence indicates that the Veteran likely shared contaminated needles, which ultimately led to the development of his hepatitis C. Therefore, the preponderance of the evidence of record demonstrates that the Veteran's drug use during service proximately resulted in his hepatitis C, and that such abuse constituted willful misconduct. As the Board has determined that the Veteran's drug abuse in service constituted willful misconduct, hepatitis C resulting from drug abuse shall not be deemed to have been incurred in the line of duty. 38 C.F.R. §§3.1(m), 3.301(d). In sum, the preponderance of the evidence is against the Veteran's claim, the "benefit of the doubt" doctrine is not applicable, and the appeal as to the issue of entitlement to service connection for hepatitis C must be denied. 38 U.S.C. § 5107; 38 C.F.R. §3.102. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Talton, John H. 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.