Citation Nr: 0433281 Decision Date: 12/15/04 Archive Date: 12/21/04 DOCKET NO. 00-10 343 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder. 2. Entitlement to service connection for a right foot and great toe disorder. 3. Entitlement to service connection for caries of teeth numbers 7, 8, 9, and 14. 4. Entitlement to service connection for a right knee disorder. 5. Entitlement to service connection for hepatitis B and C. 6. Entitlement to service connection for a low back disorder. 7. Entitlement to service connection for residuals of heat stroke. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael Martin, Counsel INTRODUCTION The veteran served on active duty from July 1970 to August 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in December 1999 by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which denied (as not well grounded) service connection for a personality disorder and an acquired psychiatric disorder. The Board issued a decision in April 2001 which denied an appeal for service connection for a personality disorder; however, the April 2001 Board decision failed to address the appeal for service connection for an acquired psychiatric disorder (other than personality disorder). In an August 2002 order, the United States Court of Appeals for Veterans Claims (Court) upheld that portion of the Board decision that denied an appeal for service connection for a personality disorder, but vacated and remanded the April 2001 Board decision to the extent that it failed to address the issue of entitlement to service connection for a mental disability. The Joint Motion for Partial Remand and to Stay Proceedings supporting the Court's order reflects that the April 2001 Board decision was vacated and remanded for the Board to adjudicate the veteran's reasonably raised claim of entitlement to service connection for a mental disability, and to afford the veteran a personal hearing before the Board that he had previously requested. The April 2001 Board decision remanded other issues to the RO for additional development, including VA examinations, consideration of the provisions of the Veterans Claims Assistance Act of 2000, and readjudication of these claims. The issues remanded were entitlement to service connection for: a disability manifested by a high temperature (now residuals of heat stroke), a right foot disorder, low back pain (status post lumbar fusion), treated carious teeth (numbers 7, 8, 9, and 14), right knee disability, and hepatitis B and C infection. In March 2003, the Board again remanded the claims. A hearing was held before the undersigned Veterans Law Judge in July 2004. The issues of entitlement to service connection for a psychiatric disorder, a back disorder, and heat stroke are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. All evidence necessary for review of the issues on appeal has been obtained, and the VA has satisfied the duty to notify the veteran of the law and regulations applicable to the claims, the evidence necessary to substantiate the claims, and what evidence was to be provided by the veteran and what evidence the VA would attempt to obtain on his behalf. 2. A chronic right foot and great toe disorder was not present during service, arthritis of the right foot and/or right great toe was not manifest within a year of service, and a current right foot and great toe disorder is not related to service. 3. The veteran has treatable carious teeth and missing teeth may be replaced by prosthodontics which would restore the masticating function of natural dentition. 4. A chronic right knee disorder was not present during service, arthritis of the right knee was not manifest within a year of service, and a current right knee disorder is not related to service. 5. The veteran had admitted intravenous and intranasal drug use during active service, and there is no credible evidence of other likely exposure to blood products or other likely means of hepatitis transmission. 6. The veteran's currently diagnosed hepatitis is not due to injury or disease in service other than his own intravenous drug use therein. CONCLUSIONS OF LAW 1. A right foot disorder, to include a disorder of the great toe, was not incurred in or aggravated by service, and arthritis of the right foot and great toe may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2003). 2. The criteria for entitlement to disability compensation for caries of teeth numbers 7, 8, 9, and 14 and/or missing teeth have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.381, 4.150 (2003). 3. A right knee disorder was not incurred in or aggravated by service, and arthritis of the right knee may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2003). 4. Hepatitis C and B were not incurred in the line of duty and service connection is not warranted. 38 U.S.C.A. §§ 105, 1110 (West. 2002); 38 C.F.R. §§ 3.1, 3.301, 3.303 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matter: Duty to Assist On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). The Act is applicable to all claims filed on or after the date of enactment, November 9, 2000, or filed before the date of enactment and not yet final as of that date. The new law eliminates the concept of a well-grounded claim, and redefines the obligations of the VA with respect to the duty to assist claimants in the development of their claims. First, the VA has a duty to notify the claimant and his representative, if represented, of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102 and 5103. Second, the VA has a duty to assist the claimant in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A. The VA has promulgated revised regulations to implement these changes in the law. See 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a)). The intended effect of the new regulations is to establish clear guidelines consistent with the intent of Congress regarding the timing and the scope of assistance VA will provide to a claimant who files a substantially complete application for VA benefits, or who attempts to reopen a previously denied claim. The Board finds that the VA's duties under the law and recently revised implementing regulations have been fulfilled. The veteran was provided adequate notice as to the evidence needed to substantiate his claims. The Board concludes the discussions in the rating decision, the statement of the case (SOC) the supplemental statements of the case (SSOCs) and letters sent to the veteran informed him of the information and evidence needed to substantiate the claims and complied with the VA's notification requirements. The communications, such as a letter dated in July 2002, August 2003 and July 2004, provided the veteran with an explanation of the type of evidence necessary to substantiate his claims, as well as an explanation of what evidence was to be provided by him and what evidence the VA would attempt to obtain on his behalf. See generally Quartuccio v. Principi, 16 Vet. App. 183 (2002). The letters also effectively advised him to submit any evidence which he had. In addition, the SOC and SSOCs included summaries of the evidence which had been obtained and considered. They also included the requirements which must be met to establish service connection. The basic elements for establishing service connection have remained unchanged despite the change in the law with respect to duty to assist and notification requirements. The VA has no outstanding duty to inform the appellant that any additional information or evidence is needed. The Board has noted that in Pelegrini v. Principi, No. 01-944 (U.S. Vet. App. June 24, 2004) (Pelegrini II, which replaced the opinion in Pelegrini v. Principi, 17 Vet. App. 412 (2004) (Pelegrini I)), the Court held that a VCAA notice must be provided to a claimant before the "initial unfavorable [agency of original jurisdiction (AOJ)] decision on a service-connection claim." VCAA notice was not provided to the veteran before the RO decision that is the subject of this appeal. However, the original RO decision that is the subject of this appeal was entered before the enactment of VCAA. Obviously, VA could not have informed the veteran of law that did not yet exist. Moreover, in Pelegrini II, the Court also made it clear that where, as in this case, notice was not mandated at the time of the initial RO decision, the RO did not err in not providing such notice complying with the pre-decision timing requirement of section 5103(a); § 3.159(b)(1) because an initial RO decision had already occurred. In addition, the Court acknowledged that the Secretary could show that the lack of a pre-AOJ decision notice was not prejudicial to the appellant. The Court noted that the doctrine of harmless error is to be used when a mistake of the administrative body is one that clearly had no bearing on the procedure used or the substance of decision reached. See also 38 U.S.C. § 7261(b)(2); Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004) (There is no implicit exemption for the notice requirements contained in 38 U.S.C. § 5103(a) from the general statutory command set forth in section 7261(b)(2) that the Veterans Claims Court shall "take due account of the rule of prejudicial error.") In the present case, the Board finds that there was no prejudice to the veteran. The Court in Pelegrini II noted that such requirement did not render a rating decision promulgated prior to providing the veteran full VCAA notice void ab initio, which in turn would nullify the notice of disagreement and substantive appeal filed by the veteran. In other words, Pelegrini II specifically noted that there was no requirement that the entire rating process be reinitiated from the very beginning. Rather, the claimant should be provided VCAA notice and an appropriate amount of time to respond and proper subsequent VA process. That is what was done in the present case. The veteran was given the VCAA notice letters and was given an ample opportunity to respond. Therefore, to decide the appeal would not be prejudicial error to the veteran. The Board also finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issues has been obtained. The veteran has had a hearing. All available relevant evidence identified by the veteran was obtained and considered. The claims file contains his service medical records, and his VA and private medical treatment records. The veteran has been afforded disability evaluation examinations by the VA. The Board does not know of any additional relevant evidence which has not been obtained. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the veteran's claims. Therefore, no further assistance to the veteran with the development of evidence is required. In the circumstances of this case, another remand to have the RO take additional action under the new Act and implementing regulations 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 the VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the veteran are to be avoided). The VA has satisfied its obligation to notify and assist the veteran in this case. Further development and further expending of the VA's resources is not warranted. Service connection may be granted for disability due to disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131. If a chronic disorder such as arthritis is manifest to a compensable degree within one year after separation from service, the disorder may be presumed to have been incurred in service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for disability shown to be proximately due to or the result of a service-connected disorder. See 38 C.F.R. § 3.310(a). This regulation has been interpreted by the United States Court of Veterans Appeals (Court) to allow service connection for a disorder which is caused by a service-connected disorder, or for the degree of additional disability resulting from aggravation of a nonservice-connected disorder by a service-connected disorder. See Allen v. Brown, 7 Vet. App. 439 (1995). Service connection connotes many factors but basically it 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. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. Each disabling condition shown by a veteran's service records, or for which he seeks a service connection must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence. Determinations as to service connection will be based on review of the entire evidence of record, with due consideration to the policy of the VA to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 C.F.R. § 3.303(a). With chronic disease shown as such in service (or within the presumptive period under Sec. 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clear-cut clinical entity, at some later date. 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, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). 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. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). I. Entitlement To Service Connection For A Right Foot Disorder. During the hearing held in July 2004 the veteran testified that his boots were too tight in service, and that he developed chronic pain in his right foot, particularly the great toe. He said that the toe became infected, and that the toe nail had to be removed. The veteran's service medical records do not contain any references to a right foot disorder or a right great toenail disorder. The report of a medical history given by the veteran in June 1971 for the purpose of his separation from service shows that he denied a history of foot trouble. The report of a medical examination conducted in June 1971 shows that clinical evaluation of the feet was normal. There is no evidence of arthritis of the foot or great toe within a year after separation from service. The earliest post service medical records pertaining to a right foot disorder are from many years after separation. The veteran was afforded a VA examination in March 2003. The report reflects that the veteran said that he injured his right great toe during basic training and this required that his toe nail be removed. He said that he was forced to continue to do physical training even though the toe was very painful. He reportedly had a second surgery to remove toenails after service. He had no pain at rest, but reportedly had 5/10 pain on walking. He also said that he had stiffness of the great toe especially after walking. On examination, he had no functional limitations with standing or walking. The great toe on the right foot had a complete absence of toenail. There was no painful motion. The pertinent diagnosis was right great toe pain. The examiner stated that there was evidence of surgery on his toe, but none that he could find in the service medical records in the claims files. In an addendum dated in May 2003, a VA physician made the following comment: It is unlikely that the veterans complaints of...injury to the great toe...are connected to his military service since there is no line of evidence in his C-file and particularly his SMR connecting these injuries to his military service. Based on the foregoing evidence, the Board finds that a chronic right foot/great toe disorder was not present during service, arthritis of the right foot and/or right great toe was not manifest within a year of service, and a current right foot disorder is not related to service. The veteran's testimony is contradicted by the more credible contemporaneous service medical records. In addition, the only competent medical opinion weighs against the claim. Accordingly, the Board concludes that a right foot disorder, to include a disorder of the great toe, was not incurred in or aggravated by service, and arthritis of the right foot and great toe may not be presumed to have been incurred in service. II. Entitlement To Service Connection For Caries Of Teeth Numbers 7, 8, 9, And 14. During the hearing held in July 2004, the veteran testified that during service several of his teeth were "drilled and filled." He said that he had toothaches in some of the teeth and some had to be pulled over the years. The veteran's service records contain a few entries pertaining to dental treatment. On June 28, 1970, tooth number 14 had a cavity which was treated. On July 15, 1970, teeth numbers 7, 8, and 9 also had caries which were treated. The veteran was afforded a VA dental examination in March 2003. The report shows that the veteran gave a history of having fillings placed in several teeth during service and two lower teeth being extracted due to caries and not trauma. The examiner stated that there was no functional impairment due to loss of motion. There was functional masticatory impairment consistent with loss of natural teeth which was not service related. On examination, the veteran was missing teeth numbers 4, 5, 14, 19, 29, and 30. He had recurrent caries in 1, 3, 11, 12, 18, 19, 20, 27, 28, 31, and 32. The examiner noted that the veteran receive routine dental care while in the military and there was no evidence of trauma. The examiner reviewed the veteran's service dental records including his X-rays. He stated that teeth numbers 1, 16, 17, and 32 which were described as missing on examination in June 1971 were probably still impacted (unerupted) and not visible in the oral cavity. He also concluded that numbers 19 and 30 were probably extracted before service. The examiner also noted that the veteran had restorations during service on teeth number 14 on June 28, 1970, and on teeth 7, 8, and 9 on July 15. The examiner stated that this was because of caries. A VA dental examination report dated in April 2003 shows that the examiner reported that the veteran received routine dental treatment while on active duty. He did not experience any dental trauma. He had recurrent dental caries on 11 teeth and was missing 6 teeth. He concluded that there was no evidence of dental trauma or service connection for dental [disorders]. In general, service connection may be granted for disability due to disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131. The controlling regulation pertaining to dental disorders, 38 C.F.R. § 3.381, provides that (a) Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease will be considered service-connected solely for the purpose of establishing eligibility for outpatient dental treatment as provided in Sec. 17.161 of this chapter. (b) The rating activity will consider each defective or missing tooth and each disease of the teeth and periodontal tissues separately to determine whether the condition was incurred or aggravated in line of duty during active service. When applicable, the rating activity will determine whether the condition is due to combat or other in-service trauma, or whether the veteran was interned as a prisoner of war. (c) In determining service connection, the condition of teeth and periodontal tissues at the time of entry into active duty will be considered. Treatment during service, including filling or extraction of a tooth, or placement of a prosthesis, will not be considered evidence of aggravation of a condition that was noted at entry, unless additional pathology developed after 180 days or more of active service. (d) The following principles apply to dental conditions noted at entry and treated during service: (1) Teeth noted as normal at entry will be service- connected if they were filled or extracted after 180 days or more of active service. (2) Teeth noted as filled at entry will be service- connected if they were extracted, or if the existing filling was replaced, after 180 days or more of active service. (3) Teeth noted as carious but restorable at entry will not be service-connected on the basis that they were filled during service. However, new caries that developed 180 days or more after such a tooth was filled will be service- connected. (4) Teeth noted as carious but restorable at entry, whether or not filled, will be service-connected if extraction was required after 180 days or more of active service. (5) Teeth noted at entry as non-restorable will not be service-connected, regardless of treatment during service. (6) Teeth noted as missing at entry will not be service connected, regardless of treatment during service. (e) The following will not be considered service- connected for treatment purposes: (1) Calculus; (2) Acute periodontal disease; (3) Third molars, unless disease or pathology of the tooth developed after 180 days or more of active service, or was due to combat or in-service trauma; and (4) Impacted or malposed teeth, and other developmental defects, unless disease or pathology of these teeth developed after 180 days or more of active service. (f) Teeth extracted because of chronic periodontal disease will be service-connected only if they were extracted after 180 days or more of active service. The schedule of ratings in chapter 4 of title 38, Code of Federal Regulations, distinguishes between "replaceable missing teeth" or periodontal disease and teeth lost as a result of "loss of substance of body of maxilla or mandible." Compare 38 C.F.R. § 4.149 with 38 C.F.R. § 4.150, Diagnostic Code (DC) 9913. The former "may be considered service- connected solely for the purpose of determining entitlement to dental examinations or outpatient dental treatment", 38 C.F.R. § 4.149, but the loss of teeth as described in the latter provision is rated, in accordance with the diagnostic code, when their loss is service connected, and may be rated anywhere from 0% to 100% disabling, 38 C.F.R. § 4.150, DC 9913. After reviewing the entire claims file, the Board finds that the veteran has not presented any competent evidence showing that he has a dental disorder for which service-connected compensation may be granted. No teeth were lost during service, and the only medical opinion which is of record shows that the loss of teeth after service was not due to injury in service. The veteran has treatable carious teeth and missing teeth may be replaced by prosthodontics which would restore the masticating function of natural dentition. Replaceable missing teeth do not constitute a disabling condition for which service connection may be granted for compensation purposes. See Simington v. West, 11 Vet. App. 41, 44 (1998) holding that when an appellant's lost teeth are replaceable missing teeth the only issue is whether service connection for treatment purposes may be granted. Accordingly, the Board concludes that the criteria for entitlement to disability compensation for caries of teeth numbers 7, 8, 9, and 14 and/or missing teeth have not been met. III. Entitlement To Service Connection For A Right Knee Disorder. During the hearing held in July 2004, the veteran testified that he injured his right knee during basic training while doing an exercise called the duck walk. He said that the knee became swollen and painful. He also reported that the knee started locking up. The veteran's service medical records do not contain any references to a right knee disorder. The report of a medical history given by the veteran in June 1971 shows that he denied having a history of a trick or locked knee. The report of a medical examination conducted at that time shows that clinical evaluation of the lower extremities was normal. There is no competent evidence of the presence of arthritis of the knee within a year after separation from service. The earliest post service records are from many years after service. The veteran was afforded a VA examination in March 2003. The report shows that he reported having injured his right knee during service while doing a duck walk during basic training. He said that he got significant swelling that lasted for two months, but he did not seek any treatment for it. He said that after being transferred to a new station, he complained of problems with locking and popping in the right knee. Apparently he did not seek any treatment at that point either. The veteran said that he now had daily pain in the knee. Following examination, the pertinent diagnosis was right knee pain from DJD. The examiner further noted, however, that "There is no historical evidence of any service connected injury." In an addendum dated in May 2003, a VA physician made the following comment: It is unlikely that the veterans complaints of injury from high fever, hepatitis B, hepatitis C, injury to the great toe, injury to the right knee and his low back injury are connected to his military service since there is no line of evidence in his C-file and particularly his SMR connecting these injuries to his military service. A written statement from the veteran's mother received in March 2004 is to the effect that the veteran injured his right knee as a child when falling on a glass milk jug, and that he always had knee problems after service. Based on the foregoing evidence, the Board finds that a chronic right knee disorder was not present during service, arthritis of the right knee was not manifest within a year of service, and a current right knee disorder is not related to service. The veteran's testimony is contradicted by the more credible contemporaneous service medical records. In addition, the only competent medical opinion weighs against the claim. Accordingly, the Board concludes that a right knee disorder was not incurred in or aggravated by service, and arthritis of the right knee may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2003). IV. Entitlement To Service Connection For Hepatitis B And C. During the hearing held in July 2004, the veteran testified that he came down with symptoms of hepatitis within a couple of weeks of his discharge from service. He recounted being treated by a local doctor, but stated that the doctor had passed away and his records could not be located. He gave his opinion that his hepatitis resulted from inoculations from an injection gun during service. A written statement from some of the veteran's relatives received in March 2004 is to the effect that shortly after service he became ill and was told by a family physician that he had hepatitis. The veteran's service medical records are negative for references to hepatitis. The report of a medical history given by the veteran in June 1971 for the purpose of separation shows that he denied having jaundice and liver trouble. The report of a medical examination conducted at that time is also negative for references to hepatitis. The earliest medical records pertaining to the presence of hepatitis are dated many years after separation from service in 1994. In a written statement dated in June 2000, the veteran admitted using drugs through "snorting" and injection in service. He reported that this occurred as a result of peer pressure. The veteran was afforded a VA examination in March 2003. The report shows that the veteran stated that he became jaundiced in September 1971 about six weeks after getting out of service in August 1971. He also had weight loss, general weakness and white bowel movements with abdominal pain. He said that he was given injections and tablets, but did not know what any of this was for. The veteran denied a history of organ transplant, blood transfusions, or hemo-dialysis. He did have a history of a tattoo and he also said that people from his barracks held him down and injected him with intravenous drugs. He said that he had used intranasal cocaine, but this was uncommon for him. He reported having no occupational blood exposures. He felt that he may have had blood exposure due to immunizations given during his time in the Army with air jet type guns. He also stated that he was sexually molested during his time in service. Following examination, the pertinent diagnosis was Hepatitis C. The examiner stated that the most likely causes from his history in declining likelihood were intranasal cocaine, getting a tattoo, forced IV drug use, and being sexually molested. The examiner stated that these causes were all historical, but that he could find no evidence in his service medical records of any of these activities. In an addendum dated in May 2003, a VA physician made the following comment: It is unlikely that the veterans complaints of injury from high fever, hepatitis B, hepatitis C, injury to the great toe, injury to the right knee and his low back injury are connected to his military service since there is no line of evidence in his C-file and particularly his SMR connecting these injuries to his military service. 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. (See paragraph (d) of this section regarding service connection where disability or death is a result of abuse of drugs.) 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. 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 or death of 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. 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 confirmed 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 (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 veteran disputes that his hepatitis resulted from willful misconduct or drug use during service. Significantly, however the veteran previously admitted such drug use and his service medical records include a reference to drug use in service when he was examined for separation from service. The Board notes that the service medical records do not contain any indication that there was any other significant risk factor for contracting hepatitis. The earliest post service medical evidence of the presence of hepatitis is a record from the American Red Cross dated in August 1994 which reflects that blood tests included findings pertaining to hepatitis B and C. The records included a history given by the veteran of having had hepatitis shortly after service. A private medical record dated in January 2004 contains an addendum which states that the veteran reported that he had immunizations in the military after other people with the same gun. It was further stated that there was a good possibility that he contracted hepatitis C from that. However, the fact that the veteran's own account of the etiology of his disability was recorded in his medical records is not sufficient to support the claim. It appears that the treating physician was just recording the history given by the veteran. In LeShore v. Brown, 8 Vet. App. 406, 409 (1995), the Court held that: Evidence which is simply information recorded by a medical examiner, unenhanced by any additional medical comment by that examiner, does not constitute "competent medical evidence"...[and] a bare transcription of a lay history is not transformed into "competent medical evidence" merely because the transcriber happens to be a medical professional. In addition, the physician apparently was unaware of, or at least did not comment about, the veteran's history of intravenous and intranasal drug use. An opinion based on an inaccurate history has essentially no probative value. See Kightly v. Brown, 6 Vet. App. 200 (1994). In sum, the Board finds that the veteran's current assertions in which he denies intravenous drug abuse are not credible. Thus, the veteran's current statements are found to be untrue and are afforded little probative weight by the Board. Rather, the Board affords probative weight to the only objectively documented and recurring activity giving rise to the risk of hepatitis exposure which is the veteran's inservice intravenous drug use. The record reflects the veteran's own prior admission of intravenous and intranasal drug use. The Board further finds no basis for consideration of the veteran's in-service drug use as merely occasional or therapeutic or otherwise within circumstances to exempt such from being considered misconduct. He was discharged from service in part for this very reason. The law clearly states that service connection may not be established on a direct basis for a disease or injury that results from willful misconduct, or, for claims filed after October 31, 1990, that are the result of the abuse of illegal drugs. See 38 U.S.C.A. §§ 105(a), 1110; 38 C.F.R. § 3.301(a). As such, service connection for hepatitis cannot be established. Accordingly, the Board concludes that hepatitis B and C were not incurred in the line of duty and service connection is not warranted. ORDER 1. Service connection for a right foot and great toe disorder is denied. 2. Service connection for caries and or absence of teeth numbers 7, 8, 9, and 14 is denied. 3. Service connection for a right knee disorder is denied. 4. Service connection for hepatitis B and C is denied. REMAND The veteran has alleged that he developed PTSD as a result of a sexual assault which occurred in service. The Court has stressed the necessity of complete development of the evidence if a PTSD claim is based on an alleged personal assault. See Patton v. West, 12 Vet. App. 272, 276-78 (1999). In Patton, 12 Vet. App. at 278, the Court pointed out that there are special evidentiary development procedures for PTSD claims based on personal assault contained in VA ADJUDICATION PROCEDURE MANUAL M21-1, Part III, 5.14(c) (Feb. 20, 1996), and former MANUAL M21-1, Part III, 7.46(c)(2) (Oct. 11, 1995). The general MANUAL M21-1 provisions on PTSD claims in 5.14 require: "In cases where available records do not provide objective or supportive evidence of the alleged in-service stressor, it is necessary to develop for this evidence." MANUAL M21-1, Part III, 5.14(b)(3). As to personal-assault PTSD claims, more particularized requirements are established regarding the development of "alternative sources" of information as service records "may be devoid of evidence because many victims of personal assault...do not file official reports either with military or civilian authorities." MANUAL M21-1, Part III, 5.14(c)(5). Further, the provisions of subparagraphs (8) and (9) indicate that "[b]ehavior changes that occurred at the time of the incident may indicate the occurrence of an in-service stressor", that "secondary evidence may need interpretation by a clinician, especially if it involves behavior changes", and that "[e]vidence that documents such behavior changes may require interpretation in relationship to the medical diagnosis by a VA neuropsychiatric physician." The Court stated that when read together subparagraphs (8) and (9) show that in personal-assault cases the Secretary has undertaken a special obligation to assist a claimant producing corroborating evidence of an in-service stressor. The Board notes that the manual also provides that the PTSD stressor development letter used by ROs to solicit details concerning the in- service stressful incident may be inappropriate for this type of PTSD claim. Therefore, if the stressful incident is a personal assault, the RO is to use a special letter developed for this type of claim. The Board finds that, in this case, VA's duty to assist in the development of the claim has been not satisfied. The RO needs to complete its assistance to the veteran by following the procedures outlined in M21-1, such as sending the veteran the appropriate letter for developing secondary or alternative evidence. The RO should also make a determination as to whether secondary evidence may need interpretation by a clinician in order to determine whether any such evidence tends to confirm the occurrence of the claimed stressor. The Board also notes that additional service medical records may exist which have not been obtained. In this regard, the veteran contends that he sustained a back injury and residuals of heat stroke in service. In a written statement of March 2004 the veteran reported that he was hospitalized in service for treatment of his back problems. During the hearing held in July 2004, the veteran testified that he had heat stroke during service which caused him to have a high temperature and resulted in him being hospitalized for a couple of days. The service medical records contained in the claims file do not contain any references to the claimed injuries. However, service hospitalization records are sometimes stored separately from the veteran's other service medical records. Efforts to obtain those service hospitalization records must be made before the issue can be resolved. VA will make as many requests as are necessary to obtain relevant records from a Federal department or agency. These records include but are not limited to military records, including service medical records; medical and other records from VA medical facilities; records from non-VA facilities providing examination or treatment at VA expense; and records from other Federal agencies, such as the Social Security Administration. VA will end its efforts to obtain records from a Federal department or agency only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile. Cases in which VA may conclude that no further efforts are required include those in which the Federal department or agency advises VA that the requested records do not exist or the custodian does not have them. 38 C.F.R. § 3.159. Accordingly, this case is REMANDED for the following: 1. The RO should complete development of the evidence required for a PTSD claim based on an alleged personal assault, to include sending the veteran the appropriate letter for developing secondary or alternative evidence. The RO should also make a determination as to whether secondary evidence may need interpretation by a clinician, especially if it involves behavior changes. See VA ADJUDICATION PROCEDURE MANUAL M21-1, Part III, 5.14(c) (Feb. 20, 1996), and former MANUAL M21-1, Part III, 7.46(c)(2) (Oct. 11, 1995). 2. The RO/AMC should request that the veteran provide the approximate dates of the claimed hospitalizations in service. Then, contact the National Personnel Records Center and request the veteran's hospitalization records from the Army Hospitals at which he contends he was treated. End efforts to obtain records from a Federal department or agency only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile. Cases in which VA may conclude that no further efforts are required include those in which the Federal department or agency advises VA that the requested records do not exist or the custodian does not have them. 2. If the benefits sought on appeal remain denied, the appellant and the appellant's representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if otherwise in order. The appellant need take no action unless otherwise notified. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). ______________________________________________ JEFF MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. We will return your file to your local VA office to implement the BVA's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: ? Appeal to the United States Court of Appeals for Veterans Claims (Court) ? File with the Board a motion for reconsideration of this decision ? File with the Board a motion to vacate this decision ? File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: ? Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the United States Court of Appeals for Veterans Claims. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to Court is filed on time. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's web site on the Internet at www.vetapp.uscourts.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA stating why you believe that the BVA committed an obvious error of fact or law in this decision, or stating that new and material military service records have been discovered that apply to your appeal. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Send your letter to: Director, Management and Administration (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 VA FORM JUN 2003 (RS) 4597 Page 1 CONTINUED Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address above for the Director, Management and Administration, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address above for the Director, Management and Administration, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: www.va.gov/vso. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before VA, then you can get information on how to do so by writing directly to the Court. Upon request, the Court will provide you with a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to represent appellants. This information is also provided on the Court's website at www.vetapp.uscourts.gov. Do I have to pay an attorney or agent to represent me? Except for a claim involving a home or small business VA loan under Chapter 37 of title 38, United States Code, attorneys or agents cannot charge you a fee or accept payment for services they provide before the date BVA makes a final decision on your appeal. If you hire an attorney or accredited agent within 1 year of a final BVA decision, then the attorney or agent is allowed to charge you a fee for representing you before VA in most situations. An attorney can also charge you for representing you before the Court. VA cannot pay fees of attorneys or agents. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to: Office of the Senior Deputy Vice Chairman (012) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 The Board may decide, on its own, to review a fee agreement for reasonableness, or you or your attorney or agent can file a motion asking the Board to do so. Send such a motion to the address above for the Office of the Senior Deputy Vice Chairman at the Board. VA FORM JUN 2003 (RS) 4597 Page 2