WGM got the short end of the stick on this one but now I see why. vA just can’t bring themselves to accept the fact that getting Winky dirty isn’t willful misconduct. Listen to this Judge pontificate, bluster, chew her pencil eraser, have one conniption fit after another and finally accede that it’s the will of Congress that this is so.  She sure isn’t happy with it and lets everyone know it’s WRONG!…Wrong!……………..Wrong! as Sen. Byrd used to inveigh.

This is priceless. It goes on for three paragraphs. What’s amazing is that this VLJ actually understands you can’t say no hep in 75 if there wasn’t a test for it.

Citation Nr: 1220078
Decision Date: 06/07/12 Archive Date: 06/20/12

DOCKET NO. 09-22 952A ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina

THE ISSUES

1. Entitlement to service connection for hepatitis C. 

2. Entitlement to a disability rating greater than 10 percent for a left eye maculopathy with headaches and blurred vision.

REPRESENTATION

Appellant represented by: The American Legion

The Board dismisses the blood transfusion as the source of the Veteran’s hepatitis C in this case. First, the Board notes that there is no objective evidence of any blood transfusion during military service. While the Veteran is competent to state that he had a blood transfusion, the Board concludes that such is not a credible statement in light of the lack of objective evidence of such in the service treatment records.

Instead, the Board focuses on the Veteran’s high-risk sexual activity in service. The Board notes the several instances of treatment for sexually-transmitted diseases during military service. The Board further observes that the May 2011 VA examiner specifically noted that the Veteran’s hepatitis C was more likely than not the result of his high-risk sexual behavior from 1975-1977, during which time he was treated for multiple different sexually-transmitted diseases. The Board cannot find any evidence of record at this time that the Veteran continued to engage in high-sexual practices after his discharge from service, nor is there any other evidence of record such as a blood transfusion after discharge from service but prior to 1989; any evidence of illicit drug use, particularly intravenous drugs or intranasal cocaine use; or, any other noted risk factors post-service. 

[In other words, they can’t screw him for après-service risks although they’d love to]

Moreover, the Board finds that such high-risk sexual activity during service is not willful misconduct and therefore is not a bar to compensation benefits. 

[But….. but….. but….]

The Board notes that no compensation shall be paid if a disability is the result of the veteran’s own willful misconduct, including the abuse of alcohol or drugs. 38 U.S.C.A. §§ 105, 1110, 1131; 38 C.F.R. § 3.1(n), 3.301. Willful misconduct is defined as an act involving conscious wrongdoing or known prohibited action. It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. A mere technical violation of police regulations or ordinances will not per se constitute willful misconduct. 38 C.F.R. § 3.1(n). Residuals of venereal disease are not to be considered the result of willful misconduct. See 38 U.S.C.A. § 105; 38 .F.R. § 3.301(c)(1).

[Dang it. What can we use to deny… ah, the rule is fuzzy]

The general prohibition against service connection for disease or injury caused by a veteran’s own willful misconduct has been set forth above. The precise outline of this rule is somewhat unclear. There is no statute or regulation specifically prohibiting payment of benefits for any disease or injury incurred as a result of promiscuous sexual activity during service. It is debatable whether engaging in high-risk sexual activity constitutes an act “involving conscious wrongdoing or known prohibited action.” 

[ I think we can go out on a limb and deny this guy. It’s a stretch but let’s see where this line of thought goes…]

VA regulations specifically provide that residuals of venereal disease are not to be considered “willful misconduct.” See 38 U.S.C.A. § 105; 38 C.F.R. § 3.301(c)(1). The Board observes that “venereal disease” is defined as one “transmitted only or chiefly by sexual intercourse with an infected individual.” See Webster’s New World Dictionary. The Veteran has not contended that hepatitis C fits that definition. However, the Board does not believe that the definition applies, in that it may be transmitted in numerous ways other than sexual intercourse (including tattoos, intravenous drug use and needle sticks). However, while it is true that hepatitis C may be acquired in ways other than sexual contact, it is also true that it may be acquired through sexual contact. {Dick Tracy moment in 3,2, 1…}> The Veteran claims that such is his situation, and the medical opinion supports the Veteran’s contention.

[Shoot. what about this Congress thing? I think they tied my hands]

While the Veteran thus does not currently suffer from a venereal disease, it appears that there is clearly intent on the part of Congress and VA to remove from the definition of willful misconduct diseases which are the residuals of sexual contact. It would thus appear to be contrary to the spirit, if not the letter, of the law to allow service connection for say syphilis or HIV/AIDS but deny service connection for hepatitis C when it has been demonstrated that the latter has been incurred as a result of sexual contact. The Board therefore concludes that in this case the Veteran’s hepatitis C may be likened to venereal disease and therefore falls outside of the statutory misconduct prohibition. 
Accordingly, the Board finds that the evidence of record in this case supports the finding that the Veteran’s hepatitis C is the result of high-risk sexual activity during military service; therefore, by resolving all doubt in the Veteran’s favor, the Board finds that service connection for hepatitis C is warranted on the evidence of record. See 38 C.F.R. §§ 3.102, 3.303. In so concluding, the Board has appropriately applied the benefit of the doubt doctrine. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).

Well, I’m glad we allowed Congress to settle that one. I was beginning to think that the VLJ was going to say they simply were in error and he was going to right this wrong here and now. Now, look down at the bottom and what do we see?

APRIL MADDOX
Acting Veterans Law Judge, Board of Veterans’ Appeals

Well, helloooooooooooooooooo, April. Been deciding claims very long? Oh. That’s right. You’re just an acting VLJ.  No wonder you had to sound it out like phonics.