Citation NR: 9626118 Decision Date: 09/16/96 Archive Date: 09/26/96 DOCKET NO. 94-07 338 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for alcoholism. 2. Entitlement to service connection for liver disease. 3. Entitlement to service connection for psychiatric disability. 4. Entitlement to service connection for gastritis. 5. Entitlement to service connection for peptic ulcer disease. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Steven D. Reiss, Associate Counsel INTRODUCTION The appellant had a period of active duty for training from May 1958 to November 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 1993 and September 1995 rating decisions of the Department of Veterans Affairs (VA) Regional Office and Insurance Center (RO&IC) in St. Paul, Minnesota, which denied entitlement to service connection for alcoholism; the RO&IC also denied entitlement to service connection for liver disease, psychiatric disability, gastritis and peptic ulcer disease on a secondary basis. The appellant disagreed with these determinations, and this appeal ensued. CONTENTIONS OF APPELLANT ON APPEAL The appellant essentially contends that he suffered from alcoholism while in service, and that his liver disease, psychiatric disability, gastritis and peptic ulcer disease are secondary to the alcoholism. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1995), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the appellant’s claims for service connection for alcoholism, liver disease, psychiatric disability, gastritis and peptic ulcer disease lack legal merit. FINDINGS OF FACT 1. The appellant’s alcoholism as a primary condition is of willful misconduct origin. 2. The appellant filed his claims of entitlement to service connection for liver disease, psychiatric disability, gastritis and peptic ulcer disease, all as secondary to alcoholism, subsequent to November 1, 1990. 3. The claims of entitlement to service connection for liver disease, psychiatric disability, gastritis and peptic ulcer disease, all as secondary to alcoholism, lack legal merit. CONCLUSION OF LAW 1. Compensation is not payable for alcoholism which was the result of the appellant's own willful misconduct. 38 U.S.C.A. §§ 105(a), 1131 (West 1991 & Supp. 1995) ; 38 C.F.R. § 3.301 (1995). 2. The claims of entitlement to service connection for liver disease, psychiatric disability, gastritis and peptic ulcer disease, all as secondary to alcoholism, are legally insufficient. 38 C.F.R. §§ 3.301(c)(2), 3.301(d)(3), 3.310 (1995). REASONS AND BASES FOR FINDINGS AND CONCLUSION The threshold question is whether the appellant's claim for service connection for alcoholism, and for liver disease, psychiatric disability, gastritis and peptic ulcer disease, all as secondary to alcoholism, are well grounded under 38 U.S.C.A. § 5107(a). A well-grounded claim is a plausible claim which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). There must be more than a mere allegation; the claim must be accompanied by evidence that justifies a belief by a fair and impartial individual that the claim is plausible. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). Moreover, where a determinative issue involves a medical diagnosis or medical causation, competent medical evidence to the effect that the claim is plausible is required. Grottveit v. Brown, 5 Vet.App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet.App. 492, 494-95 (1992). In order for a claim to be considered well grounded, there must be evidence both of a current disability and of an etiological relationship between that disability and service. Caluza v. Brown, 7 Vet.App. 498, 506 (1995); Brammer v. Derwinski, 3 Vet.App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992). I. Alcoholism Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service, which was not the result of the appellant’s own willful misconduct or abuse of alcohol or drugs. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.301(a). An injury or disease incurred during active military service will be deemed to have been incurred in line of duty and not the result of the appellant’s own misconduct when the person was, at the time the injury was suffered or disease contracted, in active military service, 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). The simple drinking of alcoholic beverage is not of itself willful misconduct. The deliberate drinking of a known poisonous substance or under conditions which would raise a presumption to that effect will be considered willful misconduct. If in the drinking of a beverage to enjoy its intoxicating effects, intoxication results proximately and immediately in disability or death, the disability or death will be considered the result of the person’s willful misconduct. 38 C.F.R. § 3.301(c)(2). Service connection may 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). In this case, the appellant’s service medical records are not available. They were apparently destroyed in the fire at the National Personnel Records Center (NPRC) in 1973. The Board recognizes its heightened duty to explain its findings and conclusions and to consider the benefit of the doubt in cases where records have been destroyed by the fire. See O’Hare v. Derwinski, 1 Vet.App. 365 (1991); Dixon v. Derwinski, 3 Vet.App. 261 (1992). The RO&IC has made a diligent effort to obtain the appellant’s service medical records from the National Personnel Records Center, which indicated to the RO&IC that the appellant’s records could not be reconstructed. Until the appellant, however, submits a well- grounded claim, there is no duty to assist the him. See Murphy v. Derwinski, 1 Vet.App. 78 (1990). Alcohol dependence is deemed by statute to be the result of willful misconduct and cannot itself be service connected. See Gabrielson v. Brown, 7 Vet.App. 36, 41 (1994). The United States Court of Veterans Appeals has held that in a case where the law is dispositive of the claim, the claim should be denied because of lack of entitlement under the law. Sabonis v. Brown, 6 Vet.App. 426, 430 (1994). As the appellant seeks service connection for alcoholism on a primary basis, the claim must be denied as lacking legal merit. II. Secondary Service Connection Disabilities secondary to alcoholism are not covered by the “willful misconduct” bar. Regulations state that “[o]rganic diseases and disabilities which are a secondary result of the chronic use of alcohol as a beverage, whether out of compulsion or otherwise, will not be considered of willful misconduct origin.” For claims submitted prior to November 1990, disabilities secondary to alcoholism were not covered by the “willful misconduct” bar, and compensation was available. Effective November 1990, however, 38 U.S.C.A. § 1131 was amended for the express purpose of “preclud[ing] payment of compensation for certain secondary effects arising from willful misconduct,” including “injuries or disease incurred during service or the result of ...the abuse of alcohol.” As amended, 38 U.S.C.A. § 1131 now provides that “no compensation shall be paid if the disability is a result of the [appellant’s] own willful misconduct or abuse of alcohol or drugs.” As a result, 38 C.F.R. § 3.301(3)(d) was promulgated to provide that an injury or disease incurred during active duty 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. As noted, the statutory amendment applies only to claims filed after October 31, 1990. Here, however, the appellant initially asserted claims of entitlement to service connection for liver disease, psychiatric disability, gastritis and peptic ulcer disease, all as secondary to alcoholism, in his Substantive Appeal in support of his claim of entitlement to service connection for alcoholism, which was received by the RO&IC in July 1993. As there is no legal entitlement to service connection on a secondary basis for disabilities arising from the abuse of alcohol, the claims of service connection for liver disease, psychiatric disability, gastritis and peptic ulcer disease are without legal merit. Sabonis. In addition, the Board notes that in April 1996, the Board received a private medical report that was not accompanied by a waiver of consideration by the RO&IC. In a written statement dated in that same month, the appellant’s representative noted this report but did not waive initial RO&IC consideration. Because alcohol dependence is deemed by statute to be the result of willful misconduct and cannot itself be service connected, and because the veteran’s claims for service connection for disabilities as secondary to alcoholism were filed subsequent to November 1990, these claims lack legal merit. As a result, the above referenced record, a discharge summary from a private medical facility where the appellant received treatment for alcoholism and related disabilities, does not contain evidence pertinent to the disposition of this case, and the appellant is not prejudiced by the Board not referring the case to the RO&IC for consideration of the discharge summary. Although the Board has disposed of the claim on a ground different from that of the RO&IC, that is, whether the appellant’s claims were legally sufficient rather than whether he is entitled to prevail on the merits, or in the case of liver disease, whether the claim was well-grounded, the appellant has not been prejudiced by the Board’s decision. In assuming that the claims were legally sufficient, the RO&IC accorded the appellant greater consideration than his claims warranted under the circumstances. Bernard v. Brown, 4 Vet.App. 384, 392-94 (1993). ORDER Evidence of a legally meritorious claim not having been submitted, the claim of entitlement to service connection for alcoholism is denied. Evidence of legally meritorious claims not having been submitted, the claims of entitlement to service connection for liver disease, psychiatric disability, gastritis and peptic ulcer disease, all as secondary to alcoholism, are denied. ROBERT E. SULLIVAN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741 (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1995), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. - 2 -