Veteranclaims’s Blog

May 5, 2022

Single Judge Application; hepatitis C; in-service air gun inoculations; Secretary’s regulations specifically state that “isolated and infrequent” use of drugs, by itself, will not be considered willful misconduct; 38 C.F.R. § 3.301(c)(3) (2021);

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 21-0491
RANDY RAY, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before LAURER, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
LAURER, Judge: United States Army veteran Randy Ray appeals, through counsel, a
September 29, 2020, Board of Veterans’ Appeals (Board) decision denying service connection for
hepatitis C and a bilateral lower extremity disability as secondary to hepatitis C.1 The Court agrees
with appellant that the Board failed to support its decision with an adequate statement of reasons
or bases. So the Court will remand appellant’s claim.2
I. ANALYSIS
A. Hepatitis C
Appellant served on active duty in the U.S. Army from November 1975 to August 1976. 3
Appellant argued before the Board that his hepatitis C resulted from in-service air gun
inoculations.4 In denying his claim, the Board relied on a February 2019 VA compensation and
1 Record (R.) at 5-12; Appellant’s Brief (Br.) a t 1-5.
2 See Tucker v. West, 11 Vet.App. 369, 374 (1998) (explaining that remand is appropriate “where the Board
has incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its determinations, or
where the record is otherwise inadequate”).
3 R. at 2352.
4 See R. at 7.
2
pension (C&P) opinion in which the examiner opined that appellant’s hepatitis C was “more
plausibl[y] . . . acquired by both sexual transmission as well as by intravenous [(IV)] drug use.”5
The Board found that the “most probative evidence” pointed to appellant’s “post-service risk
factors” as the cause of his hepatitis C.6 On appeal, appellant argues that he had in-service risk
factors of sexual contact and IV drug use and that the Board failed to explain how it determined
that his hepatitis C was most likely related to post-service risk factors.7 The Court agrees.
The Board must support all legal conclusions and factual determinations with adequate
reasons or bases that enable an appellant to understand the precise basis for its decision and
facilitate this Court’s review.8 To satisfy this requirement, the Board must analyze the credibility
and probative value of relevant evidence.9 When the Board rejects materially favorable evidence,
it must explain its basis for doing so.10
The Board first erred in its discussion of appellant’s IV drug use.11 The Board appeared to
acknowledge that the record contains conflicting evidence on whether appellant used IV drugs in
service. 12 The Board stated that appellant denied using IV drugs during his Board hearing
testimony, 13 but the Board also noted that the VA physician conducting an infectious disease
consultation in 2003 noted that appellant had a hepatitis C risk factor of IV drug use from 1975 to
1983.14 Yet the Board never reconciled this conflicting evidence. Instead, it appeared to conclude,
without any explanation, that appellant’s IV drug use was a “post-service” risk factor.15
5 R. at 9 (citing R. at 1674-75).
6 R. at 10.
7 Appella nt’s Br. a t 3-5.
8 Allday v. Brown, 7 Vet.App. 517, 527 (1995).
9 Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).
10 Id.
11 Appellant did not argue to the Board that his hepatitis C resulted from in-service IV drug use. But the
Boa rd must adjudicate theories of entitlement reasonably ra ised by the record, and here the Board’s decision found
that IV drug use was a risk factor and that there was evidence that appellant used IV drugs in service. See Robinson v.
Peake, 21 Vet.App. 545, 552-56 (2008), aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); R. at 8.
12 R. at 7-8.
13 R. at 8, 1745.
14 R. at 8, 2061.
15 See R. at 10.
3
The Secretary argues that, even if the Board failed to properly explain its decision about
appellant’s IV drug use, that failure cannot be error because in-service drug abuse would be willful
misconduct that would bar appellant from receiving benefits.16 But the Secretary’s regulations
specifically state that “isolated and infrequent” use of drugs, by itself, will not be considered willful
misconduct.
17 If the Board finds that appellant used IV drugs in service, then whether any such IV
drug use was simply isolated and infrequent or whether it amounted to willful misconduct is a
factual finding that the Board, not the Secretary, must make. 18 Because the Board failed to
reconcile conflicting evidence and did not explain how it assigned probative value to relevant
evidence, it did not adequately support its decision.19 Thus, the Court will remand appellant’s
claim for the Board to properly address the relevant evidence.20
The Court also finds that the Board erred by not explaining why appellant’s in-service
sexual contact was unrelated to his hepatitis C. The Board broadly concluded that there was “no
competent positive opinion linking [appellant’s] . . . in-service sexual contact to his [h]epatitis
C.”21 But the lack of a “competent positive opinion” does not relieve the Board of its obligation to
discuss other relevant and materially favorable evidence. 22 The February 2019 C&P examiner
opined that the “more plausible” etiology of appellant’s hepatitis C was IV drug use and sexual
transmission.23 Despite acknowledging that the examiner highlighted this risk factor, the Board
apparently concluded that only appellant’s postservice sexual contact was potentially related to his
hepatitis C.24 In doing so, the Board not only discussed no relevant postservice sexual contact that
16 Secreta ry’s Br. a t 7.
17 38 C.F.R. § 3.301(c)(3) (2021).
18 In re Lee, 277 F.3d 1338, 1345-46 (Fed. Cir. 2002) (declining to consider alternative grounds in support
of the Board’s decision because “‘courts may not accept appellate counsel’s post hoc rationalization for agency
action’” (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)) (emphasis omitted)); Martin
v. Occupational Safety & Health Rev. Comm’n, 499 U.S. 144, 156 (1991) (“‘[L]itigating positions’ are not entitled to
deference when they are merely appellate counsel’s ‘post hoc rationalizations’ for agency action advanced for the first
time in the reviewing court.”).
19 See Caluza, 7 Vet.App. at 506.
20 See Tucker, 11 Vet.App. at 374.
21 R. at 9.
22 See Caluza, 7 Vet.App. at 506.
23 R. at 1674.
24 See R. at 9-10.
4
would support its determination, but it also failed to address relevant evidence of in-service sexual
contact. Pertinently, appellant’s 1976 separation exam notes that he had a venereal disease.25
VA makes several arguments on why the Board did not have to discuss appellant’s theory
of service connection and contends that appellant failed to meet his burden of proving entitlement
to benefits to the Board.26 Yet the Secretary’s arguments do not appreciate the scenario here. The
Secretary’s arguments might be relevant if the Board had declined to consider whether appellant’s
in-service sexual contact related to his hepatitis C. But here the Board already considered this
theory of service connection and ultimately found that appellant’s in-service sexual contact was
unrelated to his hepatitis C and that any related risk was incurred postservice.27 So the Board had
to support its conclusions and discuss all relevant and potentially favorable evidence.28 The Board
did not do so, instead relying on broad conclusory findings.29 Because the Board chose to address
a theory of service connection and did not support its conclusions on that theory with an adequate
statement of reasons or bases, remand is required.30
B. Bilateral Lower Extremity Disability
Appellant sought service connection for a bilateral lower extremity disability as secondary
to hepatitis C.31 A decision on appellant’s claim for hepatitis C wou ld thus significantly impact his
claim for a bilateral lower extremity disability considering that he asserts that his bilateral lower
extremity disability should be service connected because it resulted from his hepatitis C. So
appellant’s bilateral lower extremity disability claim is inextricably intertwined with his hepatitis
C claim.32 Because the Court is remanding appellant’s service connection claim for hepatitis C, it
must also remand appellant’s bilateral lower extremity disability claim.33
25 R. at 2167.
26 Id. at 11-12.
27 R. at 9-10.
28 See Allday, 7 Vet.App. at 527, Caluza, 7 Vet.App. at 506.
29 See R. at 9.
30 See Tucker, 11 Vet.App. at 374.
31 See R. at 10.
32 See Smith v. Gober, 236 F.3d 1370, 1372 (Fed. Cir. 2001); Henderson v. West, 12 Vet.App. 11, 20 (1998)
(“[W]here a decision on one issue would have a significant impact upon another, a nd that impact in turn could render
any review by this Court of the decision on the other [issue] meaningless and a waste of judicial resources, the two
[issues] a re inextricably intertwined.”).
33 Id.
5
II. CONCLUSION
For these reasons, the Court SETS ASIDE the Board’s September 29, 2020, decision
denying service connection for hepatitis C and a bilateral lower extremity disability as secondary
to hepatitis C, and the Court REMANDS these claims for readjudication.
DATED: May 3, 2022
Copies to:
Edward M. Farmer, Esq.
VA General Counsel (027)

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