Citation Nr: 0811803 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 04-16 827A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE 1. Entitlement to service connection for hepatitis C. 2. Entitlement to service connection for drug abuse. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. N. Moats, Associate Counsel INTRODUCTION The veteran had active duty service from February 1968 to October 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2003 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in August 2003, a statement of the case was issued in May 2004, and a substantive appeal was received in May 2004. An RO hearing was held in July 2004. Further, the initial July 2003 rating decision also denied entitlement to service connection for post-traumatic stress disorder (PTSD), and the veteran's notice of disagreement and substantive appeal indicated that he wished to also appeal this issue. However, a subsequent rating decision in April 2006 granted service connection for PTSD. Thus, as this was a full grant of the benefit sought on appeal, this issue is no longer in appellate status. FINDINGS OF FACT 1. Hepatitis C was manifested during the veteran's active duty service. 2. The veteran does not have a drug abuse disability for VA compensation purposes. CONCLUSIONS OF LAW 1. Hepatitis C was incurred in the veteran's active duty service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2007). 2. Drug abuse disability was not incurred in or aggravated by the veteran's active duty service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran is seeking entitlement to service connection for hepatitis C. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 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). For purposes of the analyses below, the Board notes that Section 8052 of the Omnibus Budget Reconciliation Act (OBRA) of 1990, Pub. L. No. 101-508, § 8052, 104 Stat. 1388, 1388- 91, prohibits, effective for claims filed as in the instant case after October 31, 1990, payment of compensation for a disability that is a result of a veteran's own alcohol or drug abuse. Moreover, Section 8052 also amended 38 U.S.C.A. § 105(a) to provide that, with respect to claims filed after October 31, 1990, an injury or disease incurred during active service will not be deemed to have been incurred in line of duty if the injury or disease was a result of the person's own willful misconduct, including abuse of alcohol or drugs. See 38 U.S.C.A. § 105; 38 C.F.R. §§ 3.1(m), 3.301(d). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that there can be service connection for compensation for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, his or her service-connected disability. Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). However, the Federal Circuit indicated that veterans could only recover if they can "adequately establish that their alcohol or drug abuse disability is secondary to or is caused by their primary service-connected disorder." Id. at 1381. The Federal Circuit further stated that such compensation would only result "where there is clear medical evidence establishing that the alcohol or drug abuse disability is indeed caused by a veteran's primary service-connected disability, and where the alcohol or drug abuse disability is not due to willful wrongdoing." Id. Service medical records showed that in November 1968, prior to being sent to Vietnam, the veteran was treated for infectious, acute hepatitis that was contracted in the line of duty. However, the veteran's October 1970 service examination prior to discharge was normal. Immediately after service, an October 1970 VA hospital record showed that the veteran was admitted and treated for pneumonitis left lower lobe. An opium addiction was also noted. VA treatment records showed that the veteran was diagnosed with hepatitis C in September 2002. A December 2002 VA treatment record showed past use of intranasal cocaine and heroin, but no drug use in the past 30 years. However, a March 2003 VA treatment record showed that the veteran gave a history of intravenous drug use while in Vietnam. Further, a May 2003 mental health note showed that the veteran again gave a history of heroine and cocaine abuse while in Vietnam. It was noted that route of ingestion was primarily snorting with some intravenous use. The veteran reported that he stopped using drugs immediately after his return to the United States and had been clean since 1970. VA treatment records also showed continuing treatment for Hepatitis C. The veteran was afforded a VA examination in June 2003. The claims file and medical records were reviewed. The veteran gave no history of blood transfusion, hemodialysis or organ transplant prior to 1992. The veteran reported heroin, opium, and marijuana use for 12 months while in Vietnam. He indicated that he used intravenous drugs on and off and shared needles with other persons. He also shared equipment with others. He had no history of body piercings or tattoos. He also reported that he had never been involved in a high- risk sexual activity. The veteran stated that he had been clean for the last 30 years and had not used any drugs since Vietnam. The veteran did not recall having a hepatitis B vaccination, but remembered receiving an intramuscular gamma globulin injection when was in service. Hepatitis A and B serology was requested. Blood work showed that HBsAg and HBsAb were negative. However, HBcAb and HBcAb - IgM were positive. The diagnosis was history of hepatitis C. The examiner noted that the veteran used intravenous drugs while in service and shared needles with other persons. In the July 2004 RO hearing, the veteran testified that his drug use had been misinterpreted by the VA in that he admitted to doing drugs in service while in Vietnam, but never used a needle. The drugs were either snorted or smoked. The veteran also testified that the only time he came into blood to blood contact was while in service when a fellow soldier was blown up right next to him and he had to help carry the body back to the bunker. A March 2006 report from the CURR supported the veteran's assertions concerning blood contact and the death of the other soldier. As the June 2003 VA examiner did not address the instance of hepatitis noted in service prior to the veteran being sent to Vietnam as well as the instance of blood contact, another VA opinion by a different examiner was done in April 2006. The claims file was reviewed. The examiner found it highly unlikely that the veteran's hepatitis C was due to combat situations or handling blood. The examiner noted that IV drug abuse had been noted in the prior VA examination, and the number one cause of hepatitis C or any viral hepatitis C was drug abuse, not remote contact with wounded soldiers. The examiner noted that all other risk factors were very minor, less than 10 percent, so the examiner opined that the most likely cause, as even one-time use is enough to cause viral hepatitis, was drug abuse. However, the examiner then noted that the veteran did have hepatitis in 1968 and the virus was not isolated at that time, so it was as likely as not that the veteran might have contracted it at that time. As the April 2006 opinion appeared to indicate that the veteran's hepatitis was due to substance abuse, but was also as likely as not contracted in 1968 as noted in the service medical record, the RO requested further clarification from the same examiner so another VA opinion was done in May 2006. The opinion noted that the veteran had blood work done at the June 2003 VA examination that was negative for hepatitis A IgM, which meant that the veteran did not have infectious hepatitis either in service, prior or after. However, the veteran was positive for hepatitis B core antibody and hepatitis B core antibody M, which means both were reactive. The veteran was also reactive for hepatitis C and his viral load showed that he had active hepatitis C. The examiner stated that she could not give an opinion as to when he contracted or how he contracted the hepatitis C, but provided that there was a history of substance abuse while in Vietnam and that he later mentioned to the June 2003 examiner that he did use substances. The examiner reported that the highest risk factor and most common cause for hepatitis B and hepatitis C was substance abuse. The examiner further provided that the service record did show that the veteran had hepatitis in 1968 before going to Vietnam. The examiner stated that she did not know whether he used substances at that time or only after he entered Vietnam. The history is not clear as the veteran denied any IV drug abuse. However, the veteran does not have hepatitis A, but was exposed to hepatitis B and hepatitis C. The examiner still thought the most likely cause was substance abuse. However, the examiner could not give a definite opinion as to what type of hepatitis the veteran had in 1968; it was either B or C or a combination. The examiner stated that she could not say whether the hepatitis was present before Vietnam or if he got it after Vietnam. A definite date cannot be given, and a definite opinion as to what hepatitis he had in 1968 cannot be given, but most likely it was viral hepatitis as mentioned earlier, B or C or a combination. Based on the medical evidence of record and resolving all benefit of the doubt in favor of the veteran, the Board finds that service connection for hepatitis C is warranted. Service medical records showed that the veteran was treated for hepatitis in 1968 prior to any evidence indicating misconduct. Moreover, a VA opinion identified the hepatitis in service as either B or C, or a combination. Further, initially, the VA examiner indicated that it was as likely as not that the veteran contracted hepatitis C at this time. Thus, service connection is warranted. See 38 U.S.C.A. § 5107(b). Further, although it appears that the veteran does not currently have a drug abuse problem, the Board notes that service connection for substance abuse is generally not allowed by law. See 38 U.S.C.A. § 105; 38 C.F.R. §§ 3.1(m), 3.301(d). However, as previously noted, if the substance abuse was acquired as a result of a service-connected disability, then service-connection is available. See Allen v. Principi, 237 F.3d 1368 (Fed Cir. 2001). The veteran appears to have also claimed that his drug abuse was a result of his service-connected PTSD. Nevertheless, there is no medical evidence linking the veteran's substance abuse to this service-connected disability. Significantly, service connection for PTSD has only been established since March 17, 2003, and the veteran apparently last abused drugs in 1970. In sum, it appears that the veteran does not currently have a drug abuse problem. The Board notes that the Court has indicated that in the absence of proof of a present disability, there can be no valid claim for service connection; an appellant's belief that he or she is entitled to some sort of benefit simply because he or she had a disease or injury while on active service is mistaken, as Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability. Brammer v. Derwinski, 3 Vet.App. 223 (1992). Lastly, the Board notes that under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126, VA has a duty to notify the veteran of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet.App. 183, 187 (2002). In light of the favorable decision as it relates to the issue of entitlement to service connection for hepatitis C, the satisfaction of VCAA requirements is rendered moot as to that issue. Moreover, as the law is dispositive with respect to the claim for drug abuse, the VCAA is not applicable. See generally Mason v. Principi, 16 Vet.App. 129, 132 (2002); Smith (Claudus) v. Gober, 14 Vet.App. 227 (2000), aff'd, 28 F.3d 1384 (Fed. Cir. 2002). ORDER Service connection for hepatitis C is warranted. To that extent, the appeal is granted. Service connection for drug abuse disability is not warranted. To that extent, the appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs