Citation Nr: 0813680 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 06-24 732 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Scott Walker, Associate Counsel INTRODUCTION The veteran served on active duty from October 1971 to October 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The veteran was afforded a Board hearing, presided over by the undersigned, in January 2008. FINDING OF FACT Hepatitis C is not attributable to service. CONCLUSION OF LAW Hepatitis C was neither incurred in nor aggravated by active service. 38 U.S.C.A. §§ 1101, 1110 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.303, 3.304 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As a preliminary matter, the Board notes that regulations enacted under the Veterans Claims Assistance Act of 2000 (VCAA) require VA to notify claimants and their representatives of any information that is necessary to substantiate a claim for benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103(a), 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159(b), 3.326(a). The Court has held that this notice must be provided to a claimant prior to an initial, unfavorable decision on a claim for VA benefits by any VA regional office (RO). Pelegrini v. Principi, 18 Vet. App. 112 (2004) [Pelegrini II]. Regulations also dictate that VA has a duty to assist claimants, essentially providing that VA will make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(c). In the present case, the issue on appeal arises from a claim for service connection for hepatitis C. The Board notes that the veteran's claim was received in November 2002. In May 2003, prior to its adjudication of this claim, the RO provided notice to the claimant regarding the VA's duty to notify and to assist. The claimant was aware that it was ultimately the claimant's responsibility to give VA any evidence pertaining to the claim. Specifically, the VCAA notification instructed the claimant to provide any relevant evidence in the claimant's possession. See Pelegrini II. In particular, the VCAA notification: (1) informed the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) informed the claimant about the information and evidence that VA will seek to provide; (3) informed the claimant about the information and evidence that the claimant is expected to provide; and (4) requested that the claimant provide any evidence in his possession that pertains to the claims. See Pelegrini II. Thus, the Board finds that the content and timing of the May 2003 notice comports with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Additional notice was provided the veteran in January 2008 and the RO readjudicated the veteran's claim in a January 2008 supplemental statement of the case. With respect to the duty to assist, the Board notes that the veteran has undergone a VA examination in conjunction with his claim for service connection. 38 C.F.R. § 3.159(c)(4). There is no objective evidence indicating that there has been a material change in the veteran's condition since the claimant was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95. The VA examination report is thorough, the examination in this case is adequate upon which to base a decision, and the records satisfy 38 C.F.R. § 3.326. Further, the claimant's service medical records and pertinent post-service medical records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. Additional efforts to assist the veteran in accordance with the VCAA 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 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 VA with no benefit flowing to the veteran are to be avoided). In summary, the evidence does not show, nor does the veteran contend, that any notification deficiencies have resulted in prejudice. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (holding that due process concerns with respect to VCAA notice must be pled with specificity). Therefore, the Board finds that it would not be prejudicial to the veteran to render a decision at this time. Service Connection The veteran filed a claim for service connection for hepatitis C in November 2002. The U.S. Court of Appeals for Veterans Claims (Court) held that, in order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). A claim of service connection for a disability must be accompanied by medical evidence establishing that the claimant currently has a claimed disability. Absent proof of a present disability, there can be no valid claim. See, e.g., Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (38 U.S.C. § 1110 requires current symptomatology at the time the claim is filed in order for a veteran to be entitled to compensation); Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997) (38 U.S.C. § 1131 requires the existence of a present disability for VA compensation purposes). In order to establish service connection for a claimed disability, the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, certain chronic diseases may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 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). An injury or disease incurred during active service shall not be deemed to have been incurred in line of duty if such injury or disease was a result of drug or alcohol abuse by the claimant. 38 C.F.R. § 3.301(d) (2007). Drug abuse means the use of illegal drugs (including prescription drugs 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. Id; See also 38 U.S.C.A. § 105 (West 2002); 38 C.F.R. §§ 3.1(m) (2007). VA's General Counsel has confirmed that direct service connection for disability resulting from a claimant's own drug or alcohol abuse is precluded for all VA benefit claims filed after October 31, 1990. See VAOPGCPREC 7-99; VAOPGCPREC 2-98. The Board notes that a VA "Fast Letter" issued in June 2004 (Fast Letter 04-13, June 29, 2004) identified "key points" that included the fact that hepatitis C is spread primarily by contact with blood and blood products, with the highest prevalence of hepatitis C infection among those with repeated, direct percutaneous (through the skin) exposure to blood (i.e., intravenous drug users, recipients of blood transfusions before screening of the blood supply began in 1992, and hemophiliacs treated with clotting factor before 1987). In Fast Letter 04-13, it is noted that "occupational exposure to HCV [hepatitis C virus] may occur in the health care setting through accidental needle sticks. A veteran may have been exposed to HCV during the course of his or her duties as a military corpsman, a medical worker, or as a consequence of being a combat veteran." The Fast Letter indicates, in its Conclusion section, that the large majority of hepatitis C infections can be accounted for by known modes of transmission, primarily transfusion of blood products before 1992, and injection drug use. See also Veterans Benefits Administration (VBA) All Station Letter 211B (98- 110) November 30, 1998; VBA Training Letter 211A (01-02) April 17, 2001 (major risk factors for hepatitis C include IV drug use, blood transfusions before 1992, hemodialysis, intranasal cocaine, high-risk sexual activity, accidental exposure while a health care worker, and various kinds of percutaneous exposure such as tattoos, body piercing, acupuncture with non-sterile needles, shared toothbrushes or razor blades). Service medical records do not reflect any treatment or complaints relating to hepatitis C. Neither the veteran's October 1971 enlistment examination nor the veteran's July 1974 separation examination reveal the presence of a tattoo. In a June 2003 statement from the veteran, he stated that, "I used/abused drugs intravenously while in Germany in 1973- 1974." The veteran's hepatitis C was not diagnosed until 2002. The veteran was afforded a VA examination in September 2003. At that time, the veteran provided a history of inservice, high-risk activity, such as the procurement of a tattoo in 1972, multiple sexual partners, and the use of intravenous (IV) drugs in 1972, 1973, and 1974. A diagnosis of hepatitis C was confirmed. The examiner opined that, because the veteran was sexually active with more than one female, received a tattoo, and used IV drugs while in the military, it was at least as likely as not that the veteran's hepatitis C was related to his period of active duty. Following the results of the September 2003 examination, the RO requested an addendum opinion. Specifically, the RO asked the examiner to clarify as to which risk factor was the most likely cause of the veteran's hepatitis C. As requested, an addendum was prepared, by the same examiner, in November 2003. The examiner stated that, "It is a well-known fact that IV drug users are 60 to 70% more likely to develop hepatitis C. It is impossible at this time to say which one is the cause of his hepatitis C, but it is as likely as not it would be the IV drug use." The examiner went on to say that the tattoo was less likely to have caused the veteran's infection due to its low risk factor of 10%. Also, even though sexual activity was known to be a cause of hepatitis C, the risk factor was low at 2 to 3%. Therefore, the examiner surmised that the veteran's hepatitis C was at least as likely as not secondary to IV drug use. Based on the November 2003 addendum opinion, the RO denied the veteran's claim for service connection for hepatitis C in January 2004. According to the RO, drug abuse is considered willful misconduct in nature, and that compensation cannot be paid for a disability that is a direct result of drug abuse. Following the submission of a notice of disagreement (NOD) in May 2004, a statement of the case was issued in July 2006. The veteran's prior denial was affirmed due to the lack of competent medical evidence linking the veteran's hepatitis C to his period of active military service. A supplemental statement of the case (SSOC) was issued in January 2008. Echoing the previous decision, the SSOC noted that the preponderance of the evidence supports the conclusion that the veteran used IV drugs during service, and that hepatitis C was contracted as the result of that use. Because drug usage of that nature constitutes willful misconduct for which service connection cannot be granted, the prior denials were affirmed. The veteran was afforded a Board hearing, before the undersigned, in January 2008. During his hearing, the veteran testified that he did not have any tattoos prior to service, and that he did not use IV drugs prior to service. The veteran also stated that he was only 17 when he joined the service, and that he did not have multiple sexual partners prior to enlistment. The veteran testified that he obtained his tattoo during his period of active service, and that he currently has no other tattoos. He estimated that, although he had 15 or 20 sexual partners during his time in the military, he did not continue that practice following separation. He also stated that he used IV drugs 3 or 4 times while in the service, and had not used IV drugs since his separation from active duty. The veteran's testimony, however, must also be viewed in light of the other objective evidence of record which includes a May 2003 VA treatment record that noted that the veteran had been married twice and that he had 11 children with five women as well as a Corrections Receiving Screening Form dated in October 2000 which indicated that the veteran had last used alcohol or drugs one year earlier. In this case, the Board has determined that service connection for hepatitis C is not warranted. As noted in the veteran's September 2003 VA examination, because the veteran was sexually active with more than one female, received a tattoo, and used IV drugs while in the military, the examiner opined that it was at least as likely as not that the veteran's hepatitis C was related to his period of active duty. However, following an addendum opinion (to clarify which risk factor was the most likely cause of the veteran's hepatitis C), the examiner stated, "It is a well-known fact that IV drug users are 60 to 70% more likely to develop hepatitis C." He followed that statement by assigning percentages of risk to the procurement of a tattoo (10%) and multiple sexual partners (2 to 3%). Ultimately, the examiner proffered an opinion that the veteran's hepatitis C was as likely as not secondary to his use of IV drugs. The November 2003 VA addendum opinion identifies injected drug abuse as the most likely cause of the veteran's hepatitis C infection. The Board notes that a disease incurred during active service as a result of drug abuse cannot be service connected. See VAOPGCPREC 7-99; VAOPGCPREC 2-98. The veteran contends that may contracted hepatitis C due to multiple sexual partners or as the result of a tattoo while he was in service, but the record contains no probative medical evidence of a nexus between multiple sexual partners or tattooing in service, and hepatitis C. The September and November 2003 VA examiner clearly stated that the possibility that the veteran contracted hepatitis C via multiple sexual partners or a tattoo was very small. Instead, the record indicates that it is as likely as not that the veteran's hepatitis C was due to injected drug use. Thus, the Board finds that service connection is not warranted. VA has met its burden and demonstrated that the veteran's hepatitis C was not the result of his period of active service. While the Board recognizes the veteran's sincere belief in the merits of his claim, the preponderance of the evidence is against a finding of service connection in this instance. In reaching this conclusion, the Board acknowledges that the benefit of the doubt is to be resolved in the veteran's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. However, as the preponderance of the evidence is against the veteran's claim, that doctrine is not for application in this case. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Accordingly, service connection for hepatitis C is denied ORDER Service connection for hepatitis C is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs