Citation Nr: 22040109 Decision Date: 07/13/22 Archive Date: 07/13/22 DOCKET NO. 15-26 640 DATE: July 13, 2022 ORDER Entitlement to service connection for hepatitis C is denied. FINDING OF FACT 1. With the possible exception of in-service intravenous drug use, the evidence weighs against a finding that hepatitis C had its initial onset during the Veteran's active-duty service or that hepatitis C is otherwise related to any in-service disease, injury, or event. 2. To the extent the Veteran's hepatitis C is related to in-service intravenous drug use, that drug use constitutes willful misconduct. CONCLUSION OF LAW The criteria for service connection for hepatitis C have not been met. 38 U.S.C. §§ 105, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.301, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from April 1971 to July 1972. This case initially came to the Board from a January 2012 decision of the Agency of Original Jurisdiction (AOJ), which denied a request to reopen a previously denied claim for service-connected compensation for hepatitis C. In September 2017, the Veteran testified before the undersigned at a videoconference hearing. A transcript of that hearing is of record. In August 2018, the Board issued a decision and remand which, among other things, reopened the previously denied hepatitis C claim and remanded the reopened claim with instructions to obtain a medical opinion. The Board also remanded this appeal for further development in July 2019. The Board denied service connection for hepatitis C in February 2020. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). After further proceedings, counsel for both parties filed a Joint Motion for Partial Remand (JMR), in which they agreed that, when denying service connection for hepatitis C, the Board erred by relying on an inadequate medical opinion. By granting the JMR, the Court vacated the February 2020 denial of service connection for hepatitis C and remanded that claim back to the Board. The Board most recently remanded the case in July 2021, this time with the goal of obtaining a new medical opinion. Service Connection for Hepatitis C Establishing service connection requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and an in-service precipitating disease, injury or event. See Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service connection "basically . . . means that . . . a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces . . . . This may be accomplished by affirmatively showing inception or aggravation during service . . ." 38 C.F.R. § 3.303(a). The Veteran suggests that he developed hepatitis C because, when he received certain inoculations during military service, medical personnel used unclear "air gun" injectors, which they also used to inoculate other soldiers. The Veteran has also suggested that sharing razors with other soldiers could have caused his hepatitis C. The records of his in-service medical treatment do not mention hepatitis or any other diseases of the liver. The reports concerning his April 1971 entrance exam and the July 1972 examination at the time of his separation from service both describe all body systems as normal. According to his post-service medical records, the Veteran was first diagnosed with hepatitis C in 1996. A more recent VA examination report, dated September 2019, confirms that the Veteran had hepatitis C during the relevant period. This evidence satisfies the "current disability" requirement of the claim. See Fagan, 573 F.3d at 1287; McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). To help assess the theory that the Veteran hepatitis C is related to his in-service inoculation with "air gun" injectors and/or his sharing of razor blades with fellow soldiers, the AOJ has arranged examinations and obtained opinions from the examiners. These include an opinion prepared by a VA physician in September 2019. After reviewing the claims file and completing an in-person examination of the Veteran, the examiner acknowledged that the "possibility does exist" that air gun inoculations caused hepatitis C "considering the period of service . . ." The examiner's opinion indicated that there was no test for hepatitis C in the 1970s. But the Veteran also reported using intravenous (IV) drugs during and after his military service. This drug use, the examiner explained, "is a high risk factor for contracting hepatitis C as well." According to the February 2021 JMR, the quoted language ("[IV drug use] is a high risk factor for contracting hepatitis C as well"), because it came after the examiner's acknowledgment that "the possibility does exist [that inoculation with shared air gun injectors transmitted hepatitis C to the Veteran] considering the period of service", suggests that, like IV drug use, the sharing air gun injectors or razors were also "high risk" factors for contracting hepatitis C. Thus, the JMR concluded, "It is therefore not clear whether the examiner is in fact saying it is less likely than not that hepatitis C was caused by air gun inoculations and sharing razors (and if he is, what that finding is based on, if both [IV drug use] and [the Veteran's] other risk factors were high risk), or simply that he cannot offer an opinion as to what caused the hepatitis C without resort to speculation because both [IV drug use] and [the Veteran's] other risk factors are of similar risk." If the examiner was endorsing the latter possibility, the parties explained, it was not clear that the examiner's opinion was consistent with Jones v. Shinseki, 23 Vet. App. 382, 389 (2010) (an examiner must explain the reasons for any finding that a requested opinion required speculation). Pursuant to the Board's most recent remand orders, the AOJ obtained another medical opinion in August 2021. According to the examiner, it was likely that the Veteran's IV drug use or high-risk sexual activity caused his hepatitis C. Avoiding the ambiguity of the September 2019 opinion, the examiner further explained that it was less likely than not, "that [the Veteran's] air gun inoculations or possible shared use of razors cause[d] [his] hepatitis C." To support this conclusion, the examiner cited an article from a scientific journal assessing the risks associated with various potential methods of transmission for hepatitis C. The use of intravenous needles during drug use, the examiner explained, was more likely to transmit hepatitis C than the air gun injectors. These injectors, the examiner wrote, did "not have a needle component" and the risk of infection associated with the use of the injectors related to, "potential backflow from the injector vile." According to the examiner, this risk posed a lower probability of transmitting hepatitis C than the risk associated with the use of intravenous needles. Sharing razors, the examiner continued, posed an "an even lower risk for hepatitis C transmission [than air gun injectors] which is noted to be [less than] 1% risk." Because the examiner clearly explained that IV drug use was a likely cause of the Veteran's hepatitis C and stated with similar clarity that razors and air gun injectors were not, the August 2021 opinion substantially complied with the Board's remand orders and does not share the weaknesses described in the JMR. Having reviewed the record, the Board finds that the evidence weighs persuasively against the theory that the Veteran developed hepatitis C as a result of sharing razors with fellow soldiers or as a result of in-service inoculation with air gun injectors. On the issue of whether the required causal connection exists between hepatitis C and service, the most persuasive evidence is the August 2021 opinion. That opinion correctly described the relevant medical history. It documents the examiner's research into the relevant medical literature and it clearly explains why, in the examiner's opinion, air gun inoculations and sharing razors were not likely causes of the Veteran's hepatitis C. The Board has considered the other items of potentially relevant medical evidence, including the August 1999 letter of a VA physician, which includes an opinion that the Veteran first contracted hepatitis C around the time of his service in the Army. There is also an April 2011 letter from a physician assistant, which indicates that the Veteran had multiple risk factors for hepatitis C. However, these letters do not clearly attribute the Veteran's hepatitis C to the use of air gun injectors or to the sharing of razors. Unlike the August 2021 opinion, these letters do not identify potential causes of the relevant disability, nor do they attempt to assess the relative risks associated with the use of air gun injectors and IV drug use. To the extent the medical evidence attributes the Veteran's hepatitis C to in-service IV drug use, this drug use constitutes willful misconduct. The post-service treatment records support this conclusion. Among the earliest of these records is a November 1976 discharge summary which describes the Veteran's treatment for detoxification and rehabilitation. The summary refers to, "a history of parenteral poly drug abuse for three or four years (heroin, PCP, Cocaine, Amphetamines, barbiturates)." This information supports the finding that, to the extent his hepatitis C is related to IV drug use which may have commenced before his discharge from the Army, it is the result of willful misconduct. Accordingly, he is not eligible for service-connected compensation for hepatitis C based on his in-service recreational IV or intranasal drug use. See 38 U.S.C. § 105; 38 C.F.R. § 3.301(d). The Veteran has the burden of proving, at least to an equipoise standard, all of the requirements of a claim for service connection. See 38 U.S.C. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). The most probative evidence weighs against a finding that the required nexus exists between the Veteran's hepatitis C and any in-service disease, injury, or event unrelated to his willful misconduct, including the Veteran's in-service vaccinations with air gun injectors. Because the the weight of the evidence is persuasively against the claim, the benefit of the doubt doctrine does not apply, see 38 U.S.C. § 5107(b), and the claim must be denied. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Nye, 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.