Citation Nr: 0916006 Decision Date: 04/29/09 Archive Date: 05/07/09 DOCKET NO. 06-07 004A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Whether the severance of service connection for hepatitis C was proper. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M.G. Mazzucchelli, Counsel INTRODUCTION The Veteran served on active duty from June 1969 to December 1970. He died in November 2004 and the appellant is his widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision by the Department of Veterans Affairs (VA) Phoenix, Arizona, Regional Office (RO). In May 2003, the New York, New York, RO granted service connection for hepatitis C, and assigned a 60 percent evaluation to that disability. In February 2005, the New York RO proposed to sever the award of service connection. In August 2005, the Phoenix RO implemented the proposed severance of the award of service connection. In September 2008, the appellant testified at a Travel Board hearing before the undersigned Veterans Law Judge. The transcript of that hearing has been associated with the claims file. FINDING OF FACT The evidence does not show that the grant of service connection for hepatitis C was clearly and unmistakably erroneous. CONCLUSION OF LAW The criteria to sever service connection for the Veteran's hepatitis C have not been met; restoration of service connection is warranted. 38 U.S.C.A. §§ 1110, 5109 (West 2002); 38 C.F.R. §§ 3.105(d), 3.303, 3.307, 3.309 (2008). REASONS AND BASES FOR FINDING AND CONCLUSION I. Notice and Assistance VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. With regard to the issue decided herein, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. II. Propriety of Severance of Service Connection Preliminarily, the Board notes that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). 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(b). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Once service connection has been granted, it can be severed only where the evidence establishes that the grant is clearly and unmistakably erroneous (the burden being on the Government), and only where certain procedural safeguards have been met. Stallworth v. Nicholson, 20 Vet. App. 482, 487 (2006); Daniels v. Gober, 10 Vet. App. 474, 478 (1997). Severance of service connection based on any standard less than that set forth in 38 C.F.R. 3.105(d) is erroneous as a matter of law. Stallworth v. Nicholson, 20 Vet. App. at 488; Graves v. Brown, 6 Vet. App. 166, 170 (1994); see also Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991). In Stallworth, the United States Court of Appeals for Veterans Claims (Court) recognized that 38 C.F.R. 3.105(d) contemplates consideration of evidence that post-dates the award of service connection and that VA is not limited to the law and the record that existed at the time of the original decision. Id. at 488; see also Allen v. Nicholson, 21 Vet. App. 54, 59 (2007). In fact, the Court noted that the regulation specifically allows a change in medical diagnosis to serve as a basis for severance. Indeed, in Stallworth, the Court, quoting Venturella v. Gober, 10 Vet. App. 340, 343 (1997), reiterated that "[i]f the Court were to conclude that . . . a service-connection award can be terminated pursuant to § 3.105(d) only on the basis of the law and record as it existed at the time of the award thereof, VA would be placed in the impossible situation of being forever bound to a prior determination regardless of changes in the law or later developments in the factual record." Id. at 488. The Court in Stallworth further emphasized that the severance decision focuses not on whether the original decision was clearly erroneous, but on whether the current evidence established that service connection is clearly erroneous. Id. The Court has stated that clear and unmistakable error is a very specific and rare kind of error. It is the kind of error, of fact or of law, that, when called to the attention of reviewers, compels the conclusion, to which reasonable minds could not differ, that the results would be manifestly different but for the error. See Fugo v. Brown, 6 Vet. App. 40, 43 (1993). To warrant revision of a decision on the ground of clear and unmistakable error in a severance of service connection case, there must have been an error in the adjudication of the appeal that, had it not been made, would have manifestly changed the outcome, i.e., whether, based on the current evidence of record, a grant of service connection would be clearly and unmistakably erroneous. The Veteran was diagnosed with hepatitis C in approximately 2000. He was granted service connection for hepatitis C with secondary liver problems in a May 2003 rating decision. The Veteran died in November 2004; the certificate of death noted the cause of death as cirrhosis of the liver due to or a consequence of hepatitis C. The appellant, the Veteran's widow, sought service connection for the cause of the Veteran's death. In August 2005, the RO severed service connection for hepatitis C, finding that the May 2003 rating decision was clearly and unmistakably erroneous in granting service connection for hepatitis C because the evidence showed that the Veteran's hepatitis C was the result of his abuse of drugs. Direct service connection may be granted only when a disability 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. See 38 C.F.R. § 3.301(a). The isolated and infrequent use of drugs by itself will not be considered willful misconduct; however, the progressive and frequent use of drugs to the point of addiction will be considered willful misconduct. Where drugs are used to enjoy or experience their effects and the effects result proximately and immediately in disability, such disability will be considered the result of the person's willful misconduct. Organic diseases and disabilities which are a secondary result of the chronic use of drugs and infections coinciding with the injection of drugs will not be considered of willful misconduct origin. See 38 C.F.R. § 3.301(d). Where drugs are used for therapeutic purposes or where use of drugs or addiction thereto, results from a service-connected disability, it will not be considered of misconduct origin. See 38 C.F.R. § 3.301(c)(3). An injury or disease incurred during active military, naval, or air service shall not be deemed to have been incurred in the 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. For the purpose of this paragraph, alcohol abuse means the use of alcoholic beverages over time, or such excessive use at any one time, sufficient to cause disability to 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. See 38 C.F.R. § 3.301(d) (2007); see also 38 U.S.C.A. § 105 (West 2002); 38 C.F.R. § 3.1(m) (2007). VA's General Counsel has confirmed that direct service connection for a disability that is a result of a veteran's own abuse of alcohol or drugs is precluded for purposes of all VA benefits for claims filed after October 31, 1990. See VAOPGCPREC 7-99 (1999), published at 64 Fed. Reg. 52,375 (June 9, 1999); VAOPGCPREC 2-98 (1998), published at 63 Fed. Reg. 31,263 (February 10, 1998). The record shows that the Veteran served as a medic in Vietnam. Hence, VA concedes that he was exposed to blood in service. The service treatment records do not show any treatment for hepatitis or any indications of liver abnormality. A VA examination of the Veteran conducted in February 2003 referred to his reported "history of snorting cocaine, intravenous use of heroin and he stopped using drugs in 1994." The diagnosis was "chronic hepatitis C with cirrhosis more likely than not due to intravenous drug use in the service." The examination report indicates that the examiner did not have the claims folder available for review. The appellant has objected to the language in that diagnosis, noting that the reported history of the Veteran did not specify intravenous use of heroin during service. She has testified, under oath, that the Veteran told her that he smoked heroin during service in Vietnam, but that he never used heroin intravenously until approximately 1984. She testified that the Veteran had reported being exposed to extensive blood from wounded and dead soldiers in his duties as a medic in Vietnam. The appellant has also indicated that a private physician had told her that based on the extent of liver damage noted when the Veteran's hepatitis C was diagnosed, it was likely that the hepatitis had been contracted long ago, i.e., prior to the Veteran's reported first use of intravenous drugs in the 1980s. In February 2009, the Board obtained a Veterans Health Administration (VHA) opinion from a VA Chief of Infectious Disease physician. This physician reviewed the record and stated that: It is with a reasonable degree of medical certainty that the exposure to hepatitis C occurred post military service....His intravenous drug use beginning in the 1980s, and probable exposure to HCV during this time, allows twenty years of liver damage to occur, leading to his death in 2004. In this case, whether reasonable minds could have differed as to whether the Veteran's hepatitis C was a result of intravenous use of drugs as opposed to exposure to blood in the course of his duties as a medic in Vietnam is a medical question. The best medical evidence of record, the VHA physician's opinion dated in February 2009, states that the finding that the Veteran's hepatitis C was incurred after his separation from service is made "with a reasonable degree of medical certainty." The Board finds that that language falls short of the standard necessary to demonstrate that the grant of service connection based on inservice incurrence of hepatitis C was clearly erroneous. Overall, the Board is satisfied that reasonable minds could disagree about whether the Veteran's exposure to blood as a medic in Vietnam lead to the hepatitis C infection. However, severance requires that the evidence be clear and unmistakable. As such, the conclusion that the Veteran incurred hepatitis C as a result of service can not be deemed clearly and unmistakably erroneous. VA has the burden of proving that the grant of service connection was CUE, and this burden has not been met. Restoration of service connection for hepatitis C is warranted. This claim is accordingly granted in full. ORDER Severance of service connection not being proper, service connection for hepatitis C is restored. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs