Citation Nr: 0637145 Decision Date: 11/30/06 Archive Date: 12/06/06 DOCKET NO. 03-34 858 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The appellant served on active duty from November 1966 to November 1968. This matter came before the Board of Veterans' Appeals (the Board) on appeal from an August 2002 rating decision of the Oakland, California, Department of Veterans Affairs (VA) Regional Office (RO). This case was remanded in September 2005 for a medical opinion. This development is complete and the case has been returned to the Board for disposition. FINDINGS OF FACT 1. The appellant used intravenous drugs, heroin, in service. 2. Hepatitis C is as likely as not due to intravenous drug abuse, heroin, in service. 3. Abuse of drugs is an act involving conscious wrongdoing or known prohibited action, deliberate or intentional, with knowledge of or wanton and reckless disregard of its probable consequences. CONCLUSION OF LAW Due to willful misconduct, hepatitis C was incurred in active service. 38 U.S.C.A. §§ 105(a), 1110, 5107 (West 2002); 38 C.F.R. §§ 3.1(m) and (n), 3.301(a) (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VCAA The Veterans Claims Assistance Act of 2000 (VCAA), (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002)), imposes obligations on VA in terms of its duty to notify and assist claimants. Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2005); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA must inform the claimant of any information and evidence not of record that (1) is necessary to substantiate the claim as to all five elements of the service connection claim (including degree of disability and effective date of disability (See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); (2) VA will seek to provide; and (3) the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); Quartuccio, supra. at 187; 38 C.F.R. § 3.159(b) (2005). As a fourth notice requirement, VA must "request that the claimant provide any evidence in the claimant's possession that pertains to the claim." 38 C.F.R. § 3.159(b) (1); see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Regarding timing, the Board notes that the United States Court of Veteran Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(A) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that VA receives a completed or substantially complete application for VA-administered benefits. Pelegrini at 119 (2004). This timing requirement applies equally to the initial-disability-rating and effective-date elements of a service connection claim. Dingess/Hartman, supra. The Board finds that the VCAA letter sent to the appellant in June 2001 complied with statutory notice requirements as outlined above, except as to the disability rating and effective date elements which we believe is non-prejudicial to the appellant in view of the denial of the claims, as discussed below. Prior to the initial adjudication of the claims in August 2002, the RO sent the appellant a letter dated June 2001, wherein he was notified of the VCAA. This VCAA letter specifically informed the appellant of the evidence necessary to substantiate his claim, the respective responsibilities for obtaining evidence, and that he should send VA any additional evidence including copies of service medical records in his possession. Also, in March 2002, VA sent the appellant a letter that set forth the requirements for service connection and the hepatitis risk factors, requesting that he identify the risk factor which applies to him. Although the appellant was not informed of the disability rating and effective date elements of his claim, the Board finds that this error was harmless as the appellant was not prejudiced. There was no prejudice to the appellant in this error because he was not deprived of information needed to substantiate his claim and, in the end, his claim must be denied as a matter of law. As the benefit sought could not be awarded even had there been VCAA notice as to the disability rating and effective date elements, there simply is no prejudice in this case. VA has also satisfied its duty to assist the appellant under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. Service medical records and private treatment records have been associated with the claims folder. The appellant was afforded an opportunity to present oral argument at a personally hearing; however, due to his incarceration, the request was essentially withdrawn as he could not appear for hearings scheduled for December 2004 and May 2005. Additionally, VA obtained a medical opinion on behalf of the appellant. There is no indication that there is any additional relevant evidence to be obtained either by the VA or by the appellant, and there is no other specific evidence to advise him to obtain. See Quartuccio v. Principi, 16 Vet. App. 183 (2002) (holding that both the statute, 38 U.S.C. § 5103(a), and the regulation, 38 C.F.R. § 3.159, clearly require the Secretary to notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by the Secretary). Accordingly, the Board concludes it should proceed, as specific notice as to what evidence the appellant could or should obtain was provided and no additional pertinent evidence was submitted. The claimant has had sufficient notice of the type of information needed to support the claim and the evidence necessary to complete the application. Therefore, the duty to assist and notify as contemplated by applicable provisions, including VCAA, has been satisfied. As such, the Board finds that the development requirements of the VCAA have also been met. VA has done everything reasonably possible to assist the claimant. Accordingly, appellate review may proceed without prejudice to the claimant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Furthermore, in the circumstances of this case, a remand would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided). VA has satisfied its duties to notify and to assist the claimant. II. Service Connection Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service, but no compensation is paid if the disability is a result of the person's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Service connection basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303 (2006). For the showing of 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303 (2006). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2006). Furthermore, an injury or disease incurred during active military, naval, or air service will be deemed to have been incurred in line of duty and not the result of the veteran's own misconduct when the person on whose account benefits are claimed was, at the time the injury was suffered or disease contracted, in active military, naval, or air service, whether on active duty or on authorized leave, unless such injury or disease was a result of the person's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C.A. § 105(a) (West 2002); 38 C.F.R. §§ 3.1(m) and (n), 3.301(a) (2006). In this case, a review of the evidence shows that the appellant had service in Vietnam from July 1967 to July 1968. Form DD 214 shows that his military occupational specialty was supply specialist. He received no awards or medals indicative of combat service. The provisions of 38 U.S.C.A. § 1154(b) are not applicable. Service medical records show no findings for hepatitis on service entrance examination. A March 1968 treatment entry notes that the appellant had vomiting, cramps, possible yellow sclera, and that urine had been positive for bile. The impression was early viral hepatitis. Shortly thereafter, he was hospitalized for possible hepatitis due to history of vomiting, pain, intermittent abdominal cramps, diarrhea, and fatigue. Examination revealed minimal pinch tenderness over the liver. The narrative summary states that it later became apparent that he did not have hepatitis and he was treated for gastroenteritis. Report of service separation examination dated November 1968 reflects that the appellant was hospitalized from October to November 1968 for infectious hepatitis, Dewitt Army Hospital, Ft. Belvoir. Those hospital records are not contained in the claims folder and attempts to obtain October to December 1968 hospital records in June 2002 were unsuccessful. Post service medical records show that the appellant was admitted to a private hospital in November 1970, July 1971, and September 1971 for intravenous drug dependence (heroin). On private evaluation in November 1970, the appellant complained of a crampy stomach. By history, he used heroin since age 19, and regularly for the last 6 months. The impression was heroin withdrawal. The discharge diagnosis was drug dependence, heroin. On admission in July 1971, the appellant reported 2 episodes of hepatitis and having somewhat dark urine for the past day or two. By history, he reported a 6 year history of intravenous heroin use. Clinically, he had mild to moderate midepigastric tenderness with considerable voluntary guarding. The impression was heroin addiction, rule out septicemia, and rule out hepatitis. An August 1971 treatment note reflects that the appellant was seen for abdominal complaints related to withdrawal. The impression was heroin addiction. On hospital admission in September 1971, the appellant reported that he had had 2 attacks of hepatitis in service along with a relapse within the year he returned to the country. He also reported history of gonorrhea the same year, resolved with antibiotics. The appellant complained of mild to moderate mid-epigastric tenderness with minimal voluntary guarding. There was no organomegaly palpable. The impression was drug dependence, heroin. On admission in September 1972, the appellant reported a history of heroin abuse for the past 7 years and hepatitis twice in service. The discharge diagnoses were drug abuse, heroin, and history of reactive venereal disease and borderline FTA. The appellant was admitted in February 1983 for possible acute abdomen, but more likely drug withdrawal. History of intravenous drug use was noted. The discharge diagnoses were esophogitis and gastritis, and history of intravenous drug abuse. The appellant was admitted in May 1993 for dehydration. Other diagnoses included upper gastrointestinal bleed, drug withdrawal, and left hamstring hematoma. Additional medical records show that, in May 1995, laboratory findings indicated elevated SGPT, GGTP, and alkaline phosphates. In August 1995, a profile revealed a positive hepatitis C antibody, negative hepatitis B surface AG and AB, negative hepatitis B antibody and antigen, and negative hepatitis A antibody (IgM). A liver biopsy in November 1995 confirmed chronic hepatitis C. In May 2001, the appellant filed a claim for service connection for hepatitis. In March 2002, VA informed the appellant of the risk factors for hepatitis C. These included organ transplant before 1992, blood transfusions before 1992, hemodialysis, accidental exposure by health worker, intravenous drug use or intranasal cocaine use, high risk sexual activity, and other direct percutaneous exposure to blood (such as, by tattooing, body piercing, acupuncture). The appellant responded that he possibly acquired hepatitis from sexual activity; he did not acknowledge prior drug abuse. In October 2005, a VA medical opinion was obtained. The physician thoroughly reviewed the claims folder and relevant documents as evidenced by the narrative set out in the opinion. The physician concluded that the appellant's "current liver condition is hepatitis C," first diagnosed in 1995, and that this condition was acquired through intravenous drug use. He further concluded that "it is at least as likely as not likely that the veteran's current hepatitis C infection is a continuation of conditions manifest during military service." The physician reasoned that medical records dated soon after service discharge reflect a self-reported history intravenous drug use in service, hepatitis C is often acquired through intravenous drug use, and that the record shows no other potential sources of the current infection. The evidence of record establishes that the appellant's current hepatitis C infection was, at least as likely as not, acquired during active service. In an April 2002 statement, the appellant suggested that hepatitis was possibly caused by sexual activity. We observe that high risk sexual activity is a risk factor for hepatitis C and that the appellant was treated for gonorrhea. However, the evidence of record clearly demonstrates another high risk activity for hepatitis, which is intravenous drug use. Although the appellant's medical history is rife with hospital admissions for drug abuse treatment, the appellant neglected to report this activity as a possible source of his infection when responding to the VA in April 2002. Private medical records show that the appellant was seen soon after discharge for intravenous drug use. The self-reported history provided by the appellant from 1970 to 1972 shows that he began using heroin intravenously in service at age 19. The appellant is competent to report his behavior and the report of intravenous drug use beginning in service is also credible in view of the consistency of the appellant's report of drug use in service and because the history was provided not long after service discharge. The Board finds the history repeated at his various admissions highly probative of his high risk activity as an intravenous drug user in service. Also, the VA medical opinion in October 2005 reflects that the current hepatitis C infection is "at least as likely as not" caused by intravenous drug use in service. The physician noted that the post service medical records dated in the early 1970's "very likely represent an accurate historical document reflecting potential sources of exposure to hepatitis C virus during military service." In view of the October 2005 medical opinion and the absence of convincing evidence of an alternative source of the hepatitis infection, the Board finds that the appellant's hepatitis C was caused by drug use in service. Notwithstanding the onset of hepatitis in service, the claim must be denied. Because drug abuse was the cause of hepatitis in service there is no entitlement under the law. A preponderance of the evidence supports a finding of drug abuse. Smith v. Derwinski, 2 Vet. App. 241, 244 (1992). In this regard, although drug use is not shown in the service medical records, the self-reported history by the appellant soon after service discharge is both competent and credible, and sufficient to overcome the silence for drug abuse in service. Therefore, due to drug abuse, compensation is precluded. Accordingly, as the onset hepatitis C in service is due to drug abuse, the claim must be denied as a matter of law. 38 U.S.C.A. § 1110 (West 2002). ORDER Compensation for hepatitis C is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs