Citation Nr: 0630941 Decision Date: 10/02/06 Archive Date: 10/10/06 DOCKET NO. 03-08 340 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL The veteran ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The veteran served on active duty from October 1975 to January 1984. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The RO in Cleveland, Ohio, currently has original jurisdiction over the veteran's VA claims folder. Procedural history The record reflects that service connection was initially denied for hepatitis in a June 1999 VA rating decision. In the May 2002 rating decision, the Philadelphia RO denied the veteran's claim of entitlement to service connection for hepatitis C on the merits, without considering whether new and material evidence had been received to reopen the claim. The veteran provided testimony at a videoconference hearing before a Veterans Law Judge (VLJ) in April 2004. In an August 2004 decision the Board identified the issue on appeal as whether new and material evidence had been received to reopen the previously denied claim. The Board determined that new and material evidence had been received and accordingly reopened the claim. See 38 U.S.C.A. § 5108 (West 2002). The Board further determined that additional development was required to address the merits of the claim. Consequently, the Board remanded the case, in part, to obtain additional records and to accord the veteran a medical examination. The VLJ who conducted the April 2004 hearing is no longer employed at the Board. In accord with 38 C.F.R. § 20.707 (2005), the veteran was asked whether he desired a new hearing, and he responded in the affirmative. He subsequently provided testimony at a videoconference hearing before the undersigned VLJ in June 2006. Transcripts of both the April 2004 and June 2006 videoconference hearings are contained in the veteran's VA claims folder. Issues not on appeal During the course of this appeal, the RO also promulgated a rating decision in January 2004 which denied the veteran's claims of service connection for hypertension, residuals of syphilis, tuberculosis, arthritis, and gout. To the Board's knowledge, the veteran has not submitted a notice of disagreement with respect to that decision. Accordingly, those issues are not currently before the Board. See 38 C.F.R. §§ 20.200, 20.302 (2005). The Board's August 2004 decision denied service connection for sleep apnea and denied an increased rating for nasal fracture residuals. Nothing in the record indicates that the veteran appealed these denials to the United States Court of Appeals for Veterans Claims (the Court). Thus, that decision is final, and those issues will be addressed no further herein. See 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2005). FINDING OF FACT The competent and probative evidence of record shows that the veteran currently has hepatitis C that is related to his military service. CONCLUSION OF LAW Service connection is warranted for hepatitis C. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2005). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran contends that he developed hepatitis C during his military service. He has identified various hepatitis risk factors in his statements and hearing testimony, to include intravenous (IV) drug use and sex with female prostitutes. After careful consideration of the record, and for the reasons stated below, the Board concludes that the veteran is entitled to a grant of service connection for hepatitis C. In the interest of clarity, the Board will initially discuss certain preliminary matters. The Board will then address the pertinent law and regulations and their application to the facts and evidence. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). The VCAA alters the legal landscape in three distinct ways: standard of review, notice and duty to assist. The Board will now address these concepts within the context of the circumstances presented in this case. Standard of review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2005). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Notice The VCAA requires VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103 (West 2002); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). A VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004). In this case the veteran was sent pre-adjudication notice in the form of letters dated in July 2001, October 2001, and April 2002, all of which were prior to the May 2002 rating decision that is the subject of this appeal. He was also sent additional notification via letters dated in May 2003, August 2004, and September 2004. For the reasons detailed below, the Board finds that, through these letters, the veteran has been amply informed of what is required of him and of VA. First, VA must inform the claimant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103 (West 2002); 38 C.F.R. § 3.159(b)(1) (2005). The July 2001, October 2001, May 2003, and August 2004 letters all included the criteria for establishing service connection for a disability. In addition, the April 2002 letter noted the risk factors for hepatitis C infections. Second, VA must inform the claimant of the information and evidence VA will seek to provide. See 38 U.S.C.A. § 5103 (West 2002); 38 C.F.R. § 3.159(b)(1) (2005). In this case, the July 2001, October 2001, May 2003, and August 2004 letters all contained language to the effect that VA would obtain relevant records from VA or other Federal agency or department, and that they would request such records from private sources. Moreover, the July 2001, October 2001, and May 2003 letters stated that VA would provide a medical examination or get a medical opinion if they decided it was necessary to make a decision on the veteran's claim. The August and September 2004 letters informed the veteran that an examination was being scheduled in this case. Third, VA must inform the claimant of the information and evidence the claimant is expected to provide. See 38 U.S.C.A. § 5103 (West 2002); 38 C.F.R. § 3.159(b)(1) (2005). The July 2001, October 2001, April 2002, May 2003, and August 2004 letters VCAA letters noted above contained language indicating the veteran should identify any relevant evidence he wanted VA to request on his behalf, and that he should submit any necessary release for VA to obtain such evidence. Moreover, these letters informed the veteran that while VA would request private records, it was ultimately his responsibility to make sure VA received the evidence. In addition, the April 2002 letter stated that the veteran should identify which hepatitis C risk factors were applicable to his case. Finally, VA must request that the claimant provide any evidence in his possession pertaining to the claim. See 38 U.S.C.A. § 5103 (West 2002); 38 C.F.R. § 3.159(b)(1) (2005). In pertinent part, the May 2003 VCAA letter informed the veteran that he should "[s]end us any medical reports you have," and that he should "submit any evidence or records that you think may be helpful." In addition, the August 2004 VCAA letter informed the veteran that "[i]f there is any other evidence or information that you think will support your claim, please let us know." This letter also informed the veteran that "[i]f you have any evidence in your possession that pertains to your claim, please send it to us." Further, as noted in the preceding paragraph, the July 2001, October 2001, April 2002, May 2003, and August 2004 letters informed the veteran that while VA would request private records, it was ultimately his responsibility to make sure VA received the evidence. The Board is cognizant of the holding of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), in which the Court observed that a claim of entitlement to service connection consists of five elements: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date disability. Because a service connection claim is comprised of five elements, the Court further held that the notice requirements of section 5103(a) apply generally to all five elements of that claim. Therefore, upon receipt of an application for a service connection claim, section 5103(a) and section 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The Board observes that elements (1) and (2) are not in dispute in this case. Element (3) is in dispute, and was addressed by the VCAA letters noted above. Although it does not appear that elements (4) or (5) were addressed by these letters, for the reasons stated below the Board concludes that service connection is warranted for the veteran's hepatitis C. The Board is confident that in effectuating this grant, the RO will provide adequate notification to the veteran regarding disability ratings and effective dates. Consequently, there is no prejudice to the veteran by the Board proceeding with an adjudication of his claim on the merits. The Board further notes that the veteran has actively participated in the processing of his claim, and the statements submitted in support of his claim have indicated familiarity with the requirements for the benefits sought on appeal. In view of the foregoing, the Board finds that the veteran was notified and aware of the evidence needed to substantiate his claims and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between him and VA in obtaining such evidence. Accordingly, there is no further duty to notify. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) [VCAA notice not required where there is no reasonable possibility that additional development will aid the veteran]. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law provides that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. An examination is deemed "necessary" if the record does not contain sufficient medical evidence for VA to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2005). It is clear from a review of the file that any and all evidence pertinent to the appellate claim is already of record. The evidence includes the veteran's service medical records, extensive post-service medical records, as well as statements and hearing testimony from the veteran. He has not indicated the existence of any relevant evidence that has not been obtained or requested. In addition, he was accorded a VA medical examination in conjunction with this case in September 2004. The Board observes that general due process considerations have been satisfied. See 38 C.F.R. § 3.103 (2005). The veteran has been afforded the opportunity to present evidence and argument in support of his appeal, to include at his April 2004 and June 2006 Board hearings. Accordingly, the Board will move on to a decision on the merits. Pertinent law and regulations Service connection - in general In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2005). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. See 38 C.F.R. §3.303(d) (2005); Cosman v. Principi, 3 Vet. App. 303, 305 (1992). The resolution of issues pertinent to a determination of entitlement to service connection must be considered on the basis of the places, types, and circumstances of service as shown by service records, the official history of each organization in which the veteran served, and all pertinent medical and lay evidence. Determinations relative to service connection will be based on review of the entire evidence of record. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 3.303(a) (2005); see Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). In order to establish service connection for the claimed disorder, there must be (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 in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Willful misconduct 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 (West 2002); 38 C.F.R. § 3.1(n), 3.301 (2005). 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) (2005) (2005). Residuals of venereal disease are not to be considered the result of willful misconduct. See 38 U.S.C.A. § 105; 38 C.F.R. § 3.301(c)(1) (2005). Analysis Initially, the Board notes that Hickson element (1) is satisfied, as the medical record reflects he has been diagnosed with hepatitis C. A private medical statement dated in May 2001 noted that the veteran's liver function tests were high secondary to hepatitis C (and alcohol). The September 2004 VA medical examination includes an impression of hepatitis C. Regarding Hickson element (2), in-service disease or injury, service medical records dated in August 1981 indicate that he reported being exposed to hepatitis B through "a friend". A laboratory report from that same month indicated "hepatitis contact - weak." There are also the veteran's reported risk factors for hepatitis while on active duty, IV drug use and unprotected sex with female prostitutes. The Board notes that while service medical records from June and July 1982 indicate that the veteran was treated for improper use of cannabis, there is nothing in these records which confirms the use of IV drugs. With respect to unprotected sex with prostitutes, as noted above service medical records in August 1981 reflect that he was exposed to hepatitis B through "a friend," although the records do not appear to detail the circumstances of this exposure. More importantly, his account of unprotected sex is supported by the fact that service medical records from 1983 reflect treatment for syphilis. In view of the foregoing, the Board concludes that Hickson element (2) has been satisfied in this case. Turning to Hickson element (3), the veteran underwent a VA medical examination in September 2004, in accord with the Board's remand directives, for the purpose of addressing the etiology of his hepatitis C. The September 2004 VA examiner noted that the veteran's VA claims folder was reviewed. According to the examiner the following risk factors were present for hepatitis: exposure between 1979 and 1981 from the veteran's girlfriend, who was a heroin addict and shared a needle with the veteran; hepatitis B in 1981 and a diagnosis of syphilis in 1983 [although not stated by the examine, this was presumably indicative of unprotected sex with ladies of dubious virtue]. Following examination of the veteran, the VA examiner opined that the veteran's hepatitis C was more likely than not the hepatitis diagnosed in 1981. The examiner's reasoning was that since diagnostic testing for hepatitis C was not commercially available until 1990, it was more likely than not that the type of hepatitis diagnosed in the service was hepatitis C. No contrary medical opinion is of record regarding the etiology of the veteran's hepatitis C. The record reflects the RO denied the veteran's claim on the basis that his hepatitis C was due solely to his own willful misconduct, specifically referring to his substance abuse in the May 2003 statement of the case. The Board concurs that the veteran's account of IV in-service drug use undoubtedly constitutes willful misconduct. However, the frequency, or even the occurrence of such episodes of IV drug use, is not objectively documented or corroborated. As noted above, there is no indication in the service medical records of such use. In fact, records from July 1982 reflect that he denied drug use other than alcohol and cannabis, and indicated he had not taken any drugs by needle. The Board is of course ware that if the veteran was engaging in IV drug use at that time, it is well within the realm of possibility that he would not admit to such in order to avoid repercussions. Moreover, the veteran has very now forthrightly admitted to IV drug use, including under oath during his most recent hearing. See the June 2006 hearing transcript, page 3-4. The Board has no reason to doubt that the veteran used IV drugs in service. It also has no reason to doubt that such use was minimal as he contends. The veteran has presented two possible modes of transmission of hepatitis C during service: IV drug use, which he contends was only twice [hearing transcript, page 4] and unprotected sex with prostitutes, which he contends was much more frequent. Indeed, the veteran admitted that his German girlfriend was a prostitute. [Although whether having sex with a girlfriend who was a prostitute involves "patronizing a prostitute" is questionable.] In any event, the risk factor of unprotected sex does not appear to constitute willful misconduct under VA regulations. 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 consorting with prostitutes constitutes an act "involving conscious wrongdoing or known prohibited action." Although patronizing prostitutes is illegal in many jurisdictions, prostitution is legal or quasi-legal in certain parts of the world. Whether patronizing a prostitute is or is not a "mere technical violation of police regulations or ordinances" varies from jurisdiction to jurisdiction even in the United States. Indeed, prostitution is legal under certain circumstances in some counties in Nevada. There is clear authority for a conclusion that unprotected sexual activity does not constitute willful misconduct under the law and VA regulations, which 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, Third College Edition (1988) 1480. The veteran has not contended that hepatitis C fits that definition. The Board similarly does not believe that the definition of venereal disease applies to Hepatitis C, 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. 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 syphilis 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. The Board also observes that the opinion of the September 2004 VA examiner linking the veteran's current hepatitis C to service is based upon the medical records indicating exposure to hepatitis B from "a friend" [possibly his prostitute girlfriend] in 1981. As the service medical records do not document the circumstances of this exposure, there is no basis upon which to determine whether it involved activity that constituted willful misconduct. However, it appears quite probable that this exposure occurred as a result of a sexual activity. In view of the foregoing, it appears that the veteran engaged in hepatitis risk-related activities during active service, some of which constitute willful misconduct (IV drug use) and some which would not (unprotected sex with prostitutes). There is simply no way to quantify the amount of such usage. As noted above, it appears that there was moiré sex than drugs. In any event, to attribute the veteran's current hepatitis C exclusively to IV drug use would be nothing more than speculation. Based on the sketchy history, the Board concludes that it is a likely as not that the hepatitis C arose from the unprotected sex. In short, given the foregoing analysis regarding the hepatitis risk factors present in this case, and resolving all reasonable doubt in favor of the veteran, the Board concludes that he is entitled to a grant of service connection for hepatitis C. See 38 C.F.R. § 3.102 (2005). ORDER Entitlement to service connection for hepatitis C is granted. The benefit sought on appeal is allowed. ____________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs