Citation Nr: 1006003 Decision Date: 02/18/10 Archive Date: 03/02/10 DOCKET NO. 09-00 798 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for hepatitis C. 2. Entitlement to service connection for anxiety and depression. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C. Bruce, Associate Counsel INTRODUCTION The Veteran had active military service from January 1968 to August 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The Veteran testified before the undersigned at an October 2009 video hearing conducted at the North Little Rock, Arkansas, RO. A transcript of the hearing is of record and has been reviewed. A Substantive Appeal may be withdrawn at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2008). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204 (2008). At the October 2009 video conference hearing before the Board, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran and the Veteran's representative that he wished to withdraw some of his claims for appeal including entitlement to service connection for post traumatic stress syndrome, claustrophobia, and dementia. See hearing transcript. As the Veteran has withdrawn his appeal regarding these issues, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. The issue of entitlement to service connection for anxiety and depression is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The competent evidence of record fails to show that the Veteran's current diagnosis of hepatitis C is related to his active military service that is not a result of willful misconduct. CONCLUSION OF LAW Hepatitis C was not incurred in or aggravated by the Veteran's active military service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of (1) the information and evidence not of record that is necessary to substantiate a claim, (2) which information and evidence VA will obtain, and (3) which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159 (2009); see also 73 Fed. Reg. 23,353-6 (April 30, 2008) (codified at 38 C.F.R. § 3.159 (May 30, 2008)). See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). After careful review of the claims file, the Board finds that the letters dated in August 2007 and October 2007 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1) (2009); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In this regard, these letters advised the Veteran what information and evidence was needed to substantiate the claim decided herein. These letters also requested that the Veteran provide enough information for the RO to request records from any sources of information and evidence identified by the Veteran, as well as what information and evidence would be obtained by VA, namely, records like medical records, employment records, and records from other Federal agencies. On March 3, 2006, the Court issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006), which held that the VCAA notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Both the August 2007 and October 2007 letters provided this notice to the Veteran. Additionally, the Board notes that the October 2007 letter contained specific information with regard to the risk factors for developing hepatitis C, and directed the Veteran to provide information regarding any risk factors that applied to him. The Board observes that the August 2007 and October 2007 letters were sent to the Veteran prior to the March 2008 rating decision. The VCAA notice with respect to the elements addressed in this letter was therefore timely. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this regard, the notice provided in these letters fully complied with the requirements of 38 U.S.C.A. § 5103(a), 38 C.F.R. § 3.159(b) (2008), and Dingess, supra. Therefore the Board concludes that the requirements of the notice provisions of the VCAA have been met, and there is no outstanding duty to inform the Veteran that any additional information or evidence is needed. The Board finds that VA has also fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claims and providing a VA examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4)(i) (2009). In this regard, the Veteran's service treatment records, VA treatment records, and private treatment records, with regard to the issue of entitlement to service connection for hepatitis C, are associated with the claims folder. The Board recognizes a duty to provide a VA examination when the record lacks evidence to decide the Veteran's claim and there is evidence of (1) a current disability, (2) an in- service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. 38 C.F.R. § 3.159(c)(4)(i) (2007); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). After a review of the record, the Board finds that an examination is not necessary. While the Veteran's recent VA treatment records do indicate that the Veteran has a current diagnosis of hepatitis C, an examination is only required when there is a current disability and evidence of an in-service event, injury, or disease. Implicit in this requirement is that the event, injury or disease must have occurred in the line of duty. However, as the Board has concluded that the Veteran's hepatitis C was incurred as a result of intravenous drug use and therefore evidence of willful misconduct, the incurrence is not considered to be in the line of duty. As such, there is no evidence of an in-service event, injury, or disease that can be associated with the claimed disability. The Board therefore finds that the Veteran has not satisfied all elements of McLendon and VA is not required to provide him with a VA examination in conjunction with this claim. See 38 C.F.R. §§ 3.1(n), 3.159 and 3.301 (2009). Under the circumstances of this case, "the record has been fully developed," and "it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Therefore, the Board is satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations and the record is ready for appellate review. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110 (West 2002); 38 C.F.R. § 3.303(a) (2009). As a general matter, service connection for a disability on the basis of the merits of such a claim requires (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Cuevas v. Principi, 3 Vet. App. 542 (1992). 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) (2009). 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) (2009). Where the determinative issue involves a medical diagnosis or causation, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91 (1993). This burden typically cannot be met by lay testimony because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). However, lay persons can provide an eye-witness account of a Veteran's visible symptoms. See, e.g., Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991) (competent lay evidence concerning manifestations of a disease may form the basis for an award of service connection where a claimant develops a chronic disease within a presumptive period but has no in-service diagnosis of such disease). The record reflects that the Veteran does not have the requisite medical expertise to diagnose his claimed disorder or render a competent medical opinion regarding its cause. Thus, competent medical evidence showing that his claimed disorder is related to service is required. In order to establish service connection for hepatitis C, the evidence must show that hepatitis C infection, risk factor(s), or symptoms were incurred in or aggravated by service. The evidence must further show by competent evidence that there is a relationship between the current hepatitis C disability and an incident of the Veteran's service. Risk factors for hepatitis C include intravenous (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. See VBA Letter 211B (98-110), November 30, 1998. Initially the Board notes that direct service connection may be granted only when a disability or cause of death 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, not the result of abuse of alcohol or drugs. 38 C.F.R. § 3.301(a). 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 (West 2002); 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 contends, as evidenced throughout the record, that he contracted hepatitis C as the result of intravenous (IV) drug use on various occasions while in service. See August 2006 and November 2006 statements by the Veteran. Initially the Board notes that the Veteran was diagnosed with hepatitis C in 2000. The Veteran's service treatment records do not indicate that the Veteran was diagnosed with hepatitis C while in service. Indeed neither his August 1970 separation examination report nor his January 1974 re- enlistment examination report indicates that the Veteran was diagnosed with or suffered from hepatitis C. The Board notes that a February 2001 private examination report indicates that the Veteran had a history of IV drug use but no indication of any of the other aforementioned risk factors, including: other family history of known liver disease, blood transfusions, or tattoos. In a September 2007 statement the Veteran further describes his drug use while in service, including marijuana, methamphetamines, opium and heroin. Finally the Veteran stated, again, at his October 2009 video hearing that he believed he had contracted hepatitis C through IV drug use and the sharing of needles. The Veteran stated that he used IV drugs maybe 20 times while in service and that he did not always have access to sanitized needles. He noted that he usually took the drugs in small groups and would sometimes have to share needles. The Board notes that the Veteran also stated at the October 2009 hearing that he believed he contracted hepatitis C from IV drug use because there was no other way he could have contracted it and he specifically notes that he did not receive any transfusions. As noted, the Veteran maintains throughout the record that he believes he contracted hepatitis C from IV drug use and the sharing of needles and there is no evidence of record that contradicts the Veteran's contentions. In considering all of the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for hepatitis C. The preponderance of the evidence supports a finding that Hepatitis C was contracted due to illicit drug use. As noted above, the Veteran claims that his hepatitis C was contracted through sharing of needles for IV drug use and he never claims that there are any other risk factors that could have also been responsible. As such, the Board finds that Veteran's hepatitis C, associated with illegal drug use, is the result of willful misconduct and therefore shall not be deemed to have been incurred in the line of duty. Therefore, as the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to service connection for hepatitis C must be denied. See U.S.C.A. § 5107 (West 2002 & West Supp. 2008); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to service connection for hepatitis C is denied. REMAND After review of the record, the Board finds that a remand for further development is warranted with respect to the issue of entitlement to service connection for anxiety and depression. The Veteran requests service connection for anxiety and depression. The Veteran's original period of active service ended in 1970. The record does not indicate that the Veteran suffered from anxiety and depression during his first period of service, indeed, the Veteran's August 1970 separation examination indicated that the Veteran was psychiatrically normal upon separation. The Board does acknowledge the Veteran's and the Veteran's representative's contentions at the October 2009 video hearing that the DA Form 1811 that addresses the physical and mental status of the Veteran upon separation contains test scores that have not been interpreted and could indicate some mental issues and therefore need to be defined. The record further indicates that in June 1972, the Veteran was committed as a mentally ill person to Fort Roots Hospital for drug addiction and for threatening to kill his brother and his wife and attempting to attack his sister-in-law and mother-in-law. The Veteran attempted to re-enlist in the military in January 1974, but after an initial period of examination, it was determined that the Veteran was not qualified to re-enlist and was given a Chapter 13 discharge for character and behavior disorders in February 1974. Discharge was recommended because the Veteran had previously been hospitalized for his drug abuse and counseling provided upon the Veteran's re-enlistment did not seem to bring about improvement and indeed it appeared the Veteran had regressed. The Board further notes that the Veteran was again committed in May of 1975 and October 1981 for drug and alcohol abuse and because he was deemed to be a danger to both himself and others. Current treatment records indicate that the Veteran is being treated for major depression, recurrent, with anxiety and has been admitted for treatment multiple times. The Board notes that the Veteran has a current diagnosis of an anxiety disorder and suffers from symptoms of depression and that there is evidence of continuity of symptomatology regarding the Veteran's symptoms of depression from the time of the Veteran's separation to the present. The Board recognizes a duty to provide a VA examination when the record lacks evidence to decide the Veteran's claim and there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. 38 C.F.R. § 3.159(c)(4)(i) (2009); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). In consideration of the foregoing criteria, the Board finds that the Veteran should be afforded an examination that includes a nexus opinion that addresses the etiology of the Veteran's currently diagnosed anxiety and depression. Additionally, the record reflects that the Veteran is in receipt of social security disability benefits. Indeed, the Veteran stated in his January 2009 VA Form 9 that he receives social security benefits for mental conditions. VA has a duty to obtain Social Security Administration (SSA) records when they may be relevant to a claim. Murincsak v. Derwinski, 2 Vet. App. 363, 370-72 (1992). Furthermore, the Court of Appeals for Veterans Claims (Court) has held that SSA records cannot be unilaterally deemed irrelevant by VA because the possibility that such records contain relevant evidence pertaining to etiology cannot be foreclosed absent a review of these records. See Quartuccio v. Principi, 16 Vet. App. 183, 187-8 (2002). The records associated with the Veteran's award of social security disability benefits are not of record and no attempt to obtain such records has been made. Thus, a remand to obtain the Veteran's social security disability records is necessary before proceeding to evaluate the merits of the Veteran's claims. Finally, the Board notes that the Veteran has claimed that he was treated in a VA facility in 1971 for his mental condition. The Board acknowledges that the RO has made multiple attempts to obtain these records, but has, as yet, been unable to do so. The Board finds that after three attempts, the RO has yet to receive a negative response. The Board notes that the third request did garner some response and the Veteran's recent treatment records were provided. However, the records from 1971 were not provided. The Board finds that if these records have been retired and are therefore unavailable, then a negative response, with regard to the records should be provided. Accordingly, the case is REMANDED for the following action: 1. Contact the Social Security Administration (SSA) and request a copy of their decision as well as copies of any medical records used by that agency in making a determination on behalf of the Veteran for SSA benefits purposes. Any such records received should be associated with the Veteran's claims folder. If the search for such records has negative results, a statement to that effect should be placed in the Veteran's claims folder. 2. Obtain any VA treatment records from the Little Rock VAMC still in existence for the period from 1971 until 2001. A response, negative or positive, should be associated with the claims file. If records have been retired, an attempt to obtain them from their repository should be made. Requests must continue until it is determined that the records sought do not exist or that further efforts to obtain these records would be futile. 3. The Veteran should be afforded with an appropriate VA examination to determine the etiology of the Veteran's anxiety and depression. All indicated evaluations, studies, and tests deemed necessary should be accomplished and all findings reported in detail. The claims file should be made available for review in connection with the examination. The examiner should address whether or not the Veteran's current anxiety and depression are more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), related to his military service. The examiner should provide a thorough rationale for his or her conclusion and confirm that the claims file was available for review. Please send the claims folder to the examiner for review in conjunction with the examination. 4. After any additional notification and/or development that the RO deems necessary is undertaken, the Veteran's claims should be readjudicated. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issues. An appropriate period of time should be allowed for response by the Veteran and his representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The appellant has the right to submit additional evidence and argument on the matter or 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs