Citation Nr: 0007847 Decision Date: 03/23/00 Archive Date: 03/28/00 DOCKET NO. 98-08 255 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Entitlement to service connection for Hepatitis B and C with liver complication. REPRESENTATION Appellant represented by: Paul E. Herrod, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Odlum, Associate Counsel INTRODUCTION The veteran had active military service from August 1974 to December 1975. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 1997 rating decision from the North Little Rock, Arkansas Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. Service records show that the veteran was treated for heroin abuse while in the service. 2. The veteran was found to have drug-related hepatitis while in the military service. 3. The claim of entitlement to service connection for hepatitis B and C with liver dysfunction is not otherwise supported by cognizable evidence showing that the claim is plausible or capable of substantiation. CONCLUSIONS OF LAW 1. Hepatitis incurred in service was due to the veteran's own willful misconduct. 38 U.S.C.A. § 105(a) (West 1991); 38 C.F.R. §§ 3.1(n), 3.301 (1999). 2. The claim of entitlement to service connection for hepatitis B and C with liver complications is not otherwise well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background Enlistment examination did not document a diagnosis or history of hepatitis. In May 1975 the veteran was hospitalized in Germany with a diagnosis of hepatitis. In August 1975 it was noted that the veteran had used heroin within the last two to seven days and that he had been using it several times a week. It was also noted that he was taking it intravenously. A undated clinical record noted that the veteran had drug- related hepatitis in May 1975, and that he did not attend the follow-up appointment. It was noted that he was currently up for an expeditious discharge. In October 1975 the veteran was followed up for his drug abuse. Eight drug tests were performed and none were positive for unauthorized drugs. It was concluded that no estimate of the veteran's drug use could be made at that time. On discharge examination, a history of drug-related hepatitis was noted. It was also noted that the hepatitis-associated antigen (HAA) was unknown. The veteran underwent three more tests in November 1975 prior to discharge, none of which revealed a positive result. A VA hospitalization report from April 1997 noted diagnoses of alcohol dependence, anemia, a positive hepatitis B antibody, and positive hepatitis C. It was indicated that the veteran was found to be positive for hepatitis C in 1995. In May 1997 the veteran submitted a claim for service connection of, in pertinent part, hepatitis B and C. On VA examination in September 1997 the veteran was noted as having a history of hepatitis B and C. Testing was negative for a hepatitis B surface antigen (HBsAG). It was noted that a positive test would indicate an acute or present infection with hepatitis B. It was positive for antibodies to hepatitis B surface antigen (AntiHBs). A negative result was noted as indicating that there had been no past infection and no immunity against hepatitis B. Testing for the hepatitis C antibody reactive was described as reactive with a negative reference range. Testing for hepatitis C by "PCR" was described as negative. It was noted that a negative result was very suggestive of the absence of hepatitis C virus RNA in the sample test but did not exclude the diagnosis of the disease. The pertinent impression was residuals of hepatitis B and C. A hearing was conducted in October 1999. During the hearing the veteran testified that he was diagnosed with hepatitis B in May or June of 1975. Transcript, p. 3. He noted that he was never declared to be cured of hepatitis B. Tr., p. 7. The veteran reported that he was tested on several occasions for drugs following the onset of hepatitis and that such tests were negative. Tr., p. 7. He indicated that there was no proof in any of the medical records that he had abused drugs. Tr., p. 3. He testified to being told that his hepatitis C "comes from" the hepatitis B. Tr., p. 8. The veteran testified to being given Tetanus shots for a cut hand while in the service, and that he was involved in an injury in which blood was exposed while stationed in Germany. Tr., p. 9. He also noted that he had sex on more than one occasion while in Germany. Id. He finally testified to receiving a tattoo while in Germany prior to the diagnosis of hepatitis B. Tr., p. 10. Criteria Direct service connection may be granted only when a disability or cause of death was incurred or aggravated in line of duty, and not the result of the veteran's own willful misconduct or, for claims filed after October 31, 1990, the result of his or her abuse of alcohol or drugs. 38 U.S.C.A. § 105(a) (West 1991); 38 C.F.R. § 3.301 (1999); see also 38 C.F.R. § 3.1(n) (1999). An injury or disease incurred during active military, naval, or air service shall not be deemed to have been incurred in line of duty if such injury or disease was a result of the abuse of alcohol or drugs by the person on whose service benefits are claimed. Alcohol abuse means the use of alcoholic beverages over time, or such excessive use at any one time, sufficient to cause disability to or death of the user; drug abuse means the use of illegal drugs (including prescription drugs that are illegally or illicitly obtained), the intentional use of prescription or non-prescription drugs for a purpose other than the medically intended use, or the use of substances other than alcohol to enjoy their intoxicating effects. 38 C.F.R. § 3.301(d) (1999). Pursuant to 38 U.S.C.A. § 5107(a), a person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well-grounded. The United States Court of Appeals for Veterans Claims (Court) has held that a well-grounded claim is "a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of § [5107(a)]." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The Court has also held that although a claim need not be conclusive, the statute provides that it must be accompanied by evidence that justifies a "belief by a fair and impartial individual" that the claim is plausible. Tirpak v. Derwinski, 2 Vet. App. 609, 610 (1992). The Court has held that "where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is 'plausible' or 'possible' is required." Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993) (citing Murphy, at 81). The Court has held that a well-grounded claim requires competent evidence of current disability (a medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus between the in-service injury or disease and the current disability (medical evidence). See Epps v. Brown, 126 F.3d. 1464, 1468 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed.Cir. 1996). In order to establish service connection for a claimed disability the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). Continuous service for 90 days or more during a period of war, and post-service development of a presumptive disease to a degree of 10 percent within one year from the date of termination of such service, establishes a presumption that the disease was incurred in service. 38 C.F.R. §§ 3.307, 3.309 (1999). Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (1999). This rule does not mean that any manifestation in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (1999). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after consideration of all of the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt doctrine in resolving each such issue shall be given to the veteran. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 4.3 (1999). Analysis The Board notes that the veteran was diagnosed with hepatitis while in the military. While the veteran has claimed that he was diagnosed with hepatitis B in the service, service medical records do not specifically document which form of hepatitis he was infected with. In fact, the examiner noted during the discharge examination that the HAA was unknown. Post-service medical records appear to indicate that the veteran first tested positive for hepatitis C in 1995. He indicated as much at the hearing. See Transcript, p. 6. This would appear to suggest that the veteran did not have hepatitis C while in the service. There are no specific conclusions of record indicating an opinion as to which hepatitis the veteran contracted while in the service. Thus, it is not entirely clear which hepatitis he incurred in service, or how the hepatitis incurred in service is related to the post-service findings pertaining to hepatitis B and C. The Board is not competent to supplement the record with its own unsubstantiated medical conclusions regarding the etiology as to which strain of hepatitis was diagnosed in the service medical records or as to how it is currently being manifested. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Nonetheless, the Board is of the opinion such a determination is of little or no significance in light of the fact that it is in the service medical records that the in-service hepatitis use was due to heroin abuse. In August 1975 it was indicated that the veteran had been abusing heroin. The examiner noted the history of hepatitis and heroin abuse on discharge examination, and his hepatitis was specifically noted as being drug-related. Thus, the service records indicate that the veteran contracted his hepatitis in service as a result of his own willful misconduct or drug abuse. The veteran and his representative appeared to contend during the October 1999 hearing that that there was no proof in the service records of actual drug abuse. Tr., p. 3. However, there is a service record specifically documenting intravenous use of heroin. They also appeared to contend that the veteran could have contracted hepatitis from elsewhere, such as from a Tetanus shot, from having sex, or from getting a tattoo. Tr., pp. 9- 10. While a lay person is competent to provide evidence on the occurrence of observable symptoms during and following service, such a lay person is not competent to make a medical diagnosis or render a medical opinion which relates a medical disorder to a specific cause or which assesses the etiology of a medical disorder. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-495 (1992). Thus, the Board finds that service connection for hepatitis B or C cannot be granted by linking either or both of them to the in-service diagnosis of hepatitis because the service records indicate that the hepatitis diagnosed in service was due to the veteran's own willful misconduct or drug abuse. 38 C.F.R. § 3.301 (1999). The Board finds that the claims for hepatitis B and C with liver complications are not otherwise well-grounded. Section 5107 of Title 38, United States Code unequivocally places an initial burden upon the veteran to produce evidence that his claim is well grounded; that is, that his claim is plausible. Grivois v. Brown, 6 Vet. App. 136, 139 (1994); Grottveit v. Brown, 5 Vet. App. 91, 92 (1993). The Board reiterates the three requirements for a well grounded claim: (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in- service incurrence or aggravation of a disease or injury; and, (3) medical evidence of a nexus between the claimed inservice injury or disease and a current disability. See Caluza, supra. With the above discussion in mind, the Board finds that there is no competent evidence, such as a medical opinion, of record indicating that either hepatitis B or C are linked to any other disease or injury incurred in service. In fact, it is unclear whether the veteran actually has a current hepatitis B disability. There is no evidence that any chronic disease was shown in service or during an applicable presumption period that was not the result of the veteran's willful misconduct or drug abuse. 38 C.F.R. §§ 3.303(b), 3.307. Nor is there medical evidence of a relationship between the veteran's current hepatitis B and C and any alleged continuity of symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999); McManaway v. West, 13 Vet. App. 60 (1999); Savage v. Gober, 10 Vet. App. 488 (1997). The veteran's own opinions and statements linking hepatitis B and C to service will not suffice to well-ground his claim. While a lay person is competent to provide evidence on the occurrence of observable symptoms during and following service, such a lay person is not competent to make a medical diagnosis or render a medical opinion, which relates a medical disorder to a specific cause. Espiritu v. Derwinski, 2 Vet. App. 492, 494-495 (1992). Neither is the Board competent to supplement the record with its own unsubstantiated medical conclusions as to whether the veteran's hepatitis B or C is related to a disease or injury incurred during service. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Board further finds that the veteran has not indicated the existence of any evidence that has not already been requested and/or obtained that would well ground his claim. 38 U.S.C.A. § 5103(a) (West 1991); McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997); Epps v. Brown, 9 Vet. App. 341, 344 (1996), aff'd sub nom. Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). Based on the above, the Board concludes that the veteran's claim of entitlement to service connection for hepatitis B and C is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). The Board views its foregoing discussion as sufficient to inform the veteran of the elements necessary to complete his application to reopen this claim. See Graves v. Brown, 8 Vet. App. 522 (1996); Robinette v. Brown, 8 Vet. App. 69, 77-78 (1995); McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997); Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). As the veteran's claim for service connection of hepatitis B and C is not well grounded, the doctrine of reasonable doubt has no application to his claim. ORDER Hepatitis, as diagnosed in service, resulted from willful misconduct; accordingly, the benefit sought on appeal (entitlement to service connection for hepatitis B and C with liver complication), to the extent of it being based on the in-service diagnosis of hepatitis, is denied. The veteran, not having otherwise submitted a well grounded claim of entitlement to service connection for hepatitis B and C, the appeal is denied. RONALD R. BOSCH Member, Board of Veterans' Appeals