Citation Nr: 1101518 Decision Date: 01/13/11 Archive Date: 01/20/11 DOCKET NO. 06-39 644 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for hepatitis. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Thomas H. O'Shay, Counsel INTRODUCTION The appellant had an initial period of active duty for training from November 1973 to March 1974. He thereafter served in the Army National Guard until 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The appellant testified at a Board Videoconference hearing held in November 2010. Although the RO has styled the issue as one involving service connection for hepatitis C, the record shows that the appellant is seeking service connection for residuals of hepatitis B and/or C. The record shows that the RO actually has included consideration of hepatitis B in the decisional documents on file. The Board has accordingly recharacterized the issue on appeal. The record shows that the appellant has raised issues of entitlement to service connection for cardiovascular disability, and entitlement to VA pension benefits. As to the cardiovascular disability, inasmuch as there is no indication that the RO has acted on his claim, that matter is referred to the RO for appropriate action. As to pension benefits, the record shows that the claim is being processed. In several statements on file, the appellant has discussed several disabilities he specifically notes are not service connected, including a back disorder. In January 2010, he contacted the RO and indicated that he had filed a claim for a back disability. It is unclear if the appellant was referring to his claim for pension, or whether he intended to assert a claim of service connection for back disorder. If the appellant wishes to submit a claim of service connection for back disorder, he should so inform the RO, which should respond appropriately to any such communication received. FINDINGS OF FACT 1. The appellant was not exposed to any risk factors for hepatitis during any period of service. 2. The appellant's illicit intravenous drug use during service was not isolated, was frequent, and was not in the line of duty. 3. The appellant had pre-service risk factors of tattoos in 1972 and intravenous drug use, and the post-service risk factor of intravenous drug use. 4. The appellant did not experience any symptoms of hepatitis in service, and did not experience continuous symptoms of hepatitis after service. 5. The appellant's currently diagnosed hepatitis is not related to the initial period of active duty for training or any subsequent period of active duty for training. CONCLUSION OF LAW The criteria for service connection for hepatitis are not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303, 3.304 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Under 38 U.S.C.A. § 5103, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, and of which information and evidence that VA will seek to provide and which information and evidence the claimant is expected to provide. As will be discussed in greater detail below, the appellant's claims file was lost during the pendency of this appeal, and a rebuilt folder was constructed. A copy of the December 2004 rating decision from which this appeal originates indicates that the appellant was provided with notice pursuant to 38 U.S.C.A. § 5103 in December 2003. He was thereafter provided with 38 U.S.C.A. § 5103(a)-compliant notice in December 2008 (which is on file), including as to notice of the information and evidence necessary to substantiate the initial rating and the effective date to be assigned a grant of service connection in the event his claim was successful. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The appellant responded in January 2009 that he had no further evidence to submit, and his claim was thereafter readjudicated in a May 2009 supplemental statement of the case, thereby curing any notice deficiency. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a supplemental statement of the case, is sufficient to cure a timing defect). Based on the procedural history of this case, it is the conclusion of the Board that VA has complied with any duty to notify obligations set forth in 38 U.S.C.A. § 5103(a). With respect to VA's duty to assist an appellant, the record shows that at some point between December 2004 and September 2005 the claims file was lost and had to be rebuilt. According to a copy of the December 2004 rating action, the evidence on file at the time included the appellant's October 2003 claim, his Army National Guard service records, an August 2004 statement by the appellant, records from Kaiser Permanente for April 2001 to January 2004, and two letters from the University of California, San Francisco Medical Center dated respectively in February and March 2004. In August 2006, the appellant was notified that his claims file had been lost, and was invited to provide any service treatment records, separation papers, and copies of VA correspondence in his possession. He responded only with a copy of his DD 214, but indicated that the VA Outpatient Clinic in Martinez, California would have all pertinent medical records. In December 2008, he was provided with 38 U.S.C.A. § 5103(a)-compliant notice, including the advisement that he could submit "buddy" statements in support of his claim. The RO attempted to re-obtain the appellant's service treatment records, but was informed by the Records Management Center at the National Personnel Records Center in May 2006 that no records for the appellant were available. In June 2006, VA reported that a search of the appropriate VA facilities for the appellant's missing records was unavailing. Given that the appellant's service records were apparently transferred to VA at some point, the Board finds that the Records Management Center's response demonstrates that further efforts to obtain the appellant's service treatment records would be futile. The Board does acknowledge the appellant's contention that he was placed three times in a detoxification program at Fort Ord during his period of initial active duty for training, and notes that the RO has not attempted to contact that facility directly. Given the length of time since the reported detoxification, it is likely such records would have been transferred from Fort Ord to the National Personnel Records Center, and thereafter to the claims file. Even if Fort Ord still maintains the records of the detoxification, however, the Board points out that the appellant himself contends the treatment was for intravenous drug abuse. Such abuse, as explained in the decision portion of this action, precludes the very benefit he seeks. The Board consequently finds that no efforts to contact the Fort Ord facility are necessary to decide the claim. The record shows that VA has obtained the VA treatment records from the Martinez Outpatient Clinic for January 2004 to May 2008, and that records from Kaiser Permanente and Sutter Solano Medical Center for September 1998 to August 2008 are on file. Since the August 2006 VA correspondence, the appellant has not authorized VA to obtain records for him from the University of California, San Francisco Medical Center, but he did submit the records he himself received when he attempted to contact that facility. As the above facilities provided whatever records were in their possession, or otherwise apparently have no records for the appellant, and as the appellant has not identified or authorized VA to obtain any other records in connection with his claim, the Board finds that VA has fulfilled its duty to assist the appellant in obtaining records in support of his claim. 38 U.S.C.A. § 5103A. VA has not provided the appellant with an examination or obtained a medical opinion addressing the etiology of his hepatitis. Under 38 C.F.R. § 3.159(c)(4), in a claim for disability compensation, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. In disability compensation claims, the Secretary must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with a veteran's service or with another service- connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). In the present case, an examination or medical opinion is not required because there is sufficient competent medical evidence on file for the Secretary to make a decision on the claim. The appellant clearly has a current disability. He contends that the in-service event in this case is intravenous drug abuse, and the Board has no reason to doubt the credibility of his account that such abuse occurred. He maintains that his current hepatitis is the eventual result of that drug abuse. Notably, however, the in-service event and injury claimed, namely the drug abuse, is defined by law as not occurring in the line of duty, and hepatitis based on such drug abuse therefore is not permitted. The appellant does not otherwise allege, or the evidence suggest, another event, injury or disease in service that led to hepatitis. The evidence as it stands therefore is sufficient to make a decision on the claim, and a VA examination or opinion is not necessary. In this decision, the Board has found as a fact that there was no in-service injury or disease, including no in-service risk factors for hepatitis other than the reported intravenous drug abuse, and no chronic in-service symptoms of disability of hepatitis. Because there is no in-service injury or disease to which competent medical opinion could relate a current disability, there is no reasonable possibility that a VA examination or opinion could aid in substantiating the current claim for service connection for hepatitis. See 38 U.S.C.A. § 5103A(a)(2) (West 2002) (VA "is not required to provide assistance to a claimant . . . if no reasonable possibility exists that such assistance would aid in substantiating the claim"); 38 C.F.R. § 3.159(d) (VA to discontinue assistance where there is "no reasonable possibility that further assistance would substantiate the claim"). The Board has considered the decision in Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); however, in the absence of evidence of an in-service disease or injury, including risk factors other than drug abuse, referral of this case to obtain an examination and/or an opinion as to the etiology of the hepatitis would in essence place the examining physician in the role of a fact finder, would suggest reliance on an inaccurate history of occurrence of an in-service risk factors, and could only result in a speculative opinion or purported opinion of no probative value. The U.S. Court of Appeals for Veterans Claims (Court) has held on a number of occasions that a medical opinion premised upon an unsubstantiated account of a claimant is of no probative value. See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant that have been previously rejected). Referral of this case for an examination or to obtain a medical opinion would be a useless act. The duty to assist by providing a VA examination or opinion is not invoked in this case because there is no reasonable possibility that such assistance would aid in substantiating the claim. See 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). In sum, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. For these reasons, the appellant will not be prejudiced as a result of the Board proceeding to the merits of the claim. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). Service Connection for Hepatitis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Active military, naval, and air service includes active duty, any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty (or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training). 38 C.F.R. § 3.6(a). Active duty means full-time duty in the Armed Forces, other than active duty for training. 38 C.F.R. § 3.6(b)(1). 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. 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 or death, such disability or death 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. 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. 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 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. 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. 38 C.F.R. § 3.301(d). See also 38 U.S.C.A. § 105; 38 C.F.R. §§ 3.1(m). VA's General Counsel has interpreted that direct service connection for a disability that is a result of a claimant'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; VAOPGCPREC 2-98. See generally, Allen v. Principi, 237 F.3d 1368, 1377 (Fed. Cir. 2001). In this case, in statements and testimony, the appellant contends that his hepatitis infections were caused by his use of intravenous drugs (heroin and cocaine) beginning during his period of initial active duty for training in the Army National Guard. He explains that, immediately after his basic training, higher ranked personnel introduced him to heroin and cocaine, and that he felt peer pressure to partake. He contends that the Medical Board findings concerning a history of intravenous narcotics use that began at age 16 (prior to service) were a lie. The appellant testified that he attended detoxification three times during that first period of training, and that he continued using illicit drugs until 2009. He testified that he was first diagnosed with hepatitis in 1994 or 1998. After a review of the evidence of record, the Board finds that the appellant was not exposed to any risk factors for hepatitis during any period of service. The Board also finds that the appellant had illicit intravenous drug use during service that was not isolated, was frequent, and was not in the line of duty; therefore, this in-service risk factor may not be recognized for VA disability compensation purposes. The Board also finds that the appellant had pre-service risk factors of tattoos in 1972 and intravenous drug use, and the post-service risk factor of intravenous drug use. The appellant's service treatment records are not on file, and are lost. According to a copy of the December 2004 rating action, his July 1973 enlistment examination noted the absence of any clinical abnormalities; the appellant denied any history of jaundice or hepatitis. His January 2004 separation examination was also clinically normal, but a Medical Board report noted a history of amphetamine dependence which had existed prior to service, with a history of intravenous narcotics use beginning at age 16. The appellant was apparently separated from his National Guard service for the convenience of the government for not meeting medical fitness standards. The RO noted that the service treatment records did not show any evidence of hepatitis. The December 2004 rating decision indicated that records from Kaiser Permanente documented a history of intravenous drug use. VA treatment records on file for the period from January 2004 to May 2008 show a history of intravenous drug abuse, as well as treatment for hepatitis C and a history of hepatitis B. An October 2004 entry notes that his risk factors for contracting hepatitis C were intravenous drug use in the 1970s, a history of cocaine use, and tattoos in 1972. The appellant denied any blood transfusions or exposure to blood or body fluids. Private medical records on file for September 1998 to August 2008 show that in September 1998 the appellant reported a recent history of a hepatitis C diagnosis. He reported having felt feverish for months, with fatigue and aching. In October 1998, he reported 20-year history of intravenous drug abuse, and noted that he had just found out that he had hepatitis C. In January 2004, the appellant reported a remote history of hepatitis B and C. As already noted, the service treatment records are missing. The Board has no reason to doubt the accuracy of the December 2004 rating decision's recitation of the contents of the service treatment records at the time. The rating action noted that the service treatment records were entirely silent for any reference to hepatitis. The appellant himself does not contend that he was treated for symptoms of or found to have hepatitis during his period of initial active duty for training that began in November 1973, or until at least 30 years after that training period ended in March 1974. Nor does he contend that his hepatitis first manifested during any other period of active duty for training. There is no evidence of record which even remotely suggests that, other than through intravenous drug use, the hepatitis originated during any period of active duty for training. The appellant instead contends that his hepatitis eventually resulted from intravenous heroin and cocaine use which started during his period of initial active duty for training. The appellant acknowledges that he continued to use intravenous drugs until very recently, and the Board accordingly concludes that the appellant's reported use of intravenous drugs in service was on a frequent basis. Even assuming that the appellant's hepatitis originated from his heroin and cocaine use in service, the Board points out that the appellant admits to the frequent intravenous use of those illicit substances. He does not contend that the intravenous drug use was isolated or infrequent, and the fact that he has continued to use the substances until recently suggests the opposite. The appellant's frequent intravenous use of illicit substances, namely heroin and cocaine, clearly constitutes drug abuse pursuant to 38 C.F.R. § 3.301(d), and consequently any injury or disease, including hepatitis infection, resulting from that drug abuse is not considered to have occurred in the line of duty. The Board notes that the only other risk factor for hepatitis identified by treating clinicians is tattoos, but that those tattoos were apparently applied in 1972, prior to the appellant's entrance into the National Guard. In short, the evidence shows that, other than possibly through illicit drug use, the appellant's hepatitis did not originate during his period of initial active duty for training, or during any subsequent period of active duty for training. With respect to the possibility that it originated from drug abuse, if true, the law provides that a disease resulting from the abuse of drugs in service may not be considered to have been incurred in the line of duty, thereby precluding entitlement to direct service connection, including for any resulting infections. As the evidence on file clearly shows that the appellant's hepatitis did not originate during any period of service, except through the abuse of an illicit substance in service, the preponderance of the evidence is against the claim, and the claim for service connection for hepatitis is denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for hepatitis is denied. ____________________________________________ J. Parker Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs