Citation Nr: 1034070 Decision Date: 09/10/10 Archive Date: 09/21/10 DOCKET NO. 06-14 258A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection diabetes mellitus. 2. Entitlement to service connection for hepatitis C. 3. Entitlement to service connection for depression. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Kirscher Strauss, Associate Counsel INTRODUCTION The Veteran served on active military service from January 1966 to September 1967. The appeal comes before the Board of Veterans' Appeals (Board) from a March 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York, which in pertinent part denied the claims for service connection for diabetes mellitus, hepatitis C, and depression. In May 2009 the Board remanded the appeal to the RO via the Appeals Management Center (AMC) for additional development. The development has been completed, and the case is before the Board for final review. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim on appeal has been accomplished. 2. The evidence of record does not demonstrate, nor does the Veteran allege, that he served within the land borders or in the inland waters of the Republic of Vietnam while on active duty; therefore, exposure to an herbicide agent is not presumed. 3. Competent evidence of record does not reflect that diabetes mellitus, first diagnosed in September 2004 approximately 37 years after separation from service, is the result of an event, injury, or disease incurred in service. 4. The Veteran provided contradictory statements regarding his history of intravenous drug use, and as a result, his statements regarding the etiology of his claimed hepatitis C disability are not credible. 5. Competent evidence of record reflects that hepatitis C is the result of the Veteran's misconduct, post-service intravenous drug use and/or intranasal cocaine use, and not the result of any event, injury, or disease incurred in service; he denied any hepatitis C risk factors other than intranasal cocaine use and intravenous drug use, which he described to VA medical treatment providers. 6. Competent evidence of record does not reflect that depression is the result of an event, injury, or disease incurred in service. CONCLUSIONS OF LAW 1. Diabetes mellitus was not incurred in or aggravated by military service, nor may service incurrence of diabetes mellitus be presumed. 38 U.S.C.A. §§ 1110, 1116, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2009) 2. Hepatitis C was not incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2009). 3. Depression was not incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claims (the Court) have been fulfilled. In this case, the Veteran's claim for service connection for hepatitis C, diabetes mellitus, and depression was received in December 2004. Thereafter, he was notified of the general provisions of the VCAA by the New York RO in correspondence dated in December 2004. This letter notified the Veteran of VA's responsibilities in obtaining information to assist him in completing his claims, identified his duties in obtaining information and evidence to substantiate his claims, and provided other pertinent information regarding the VCAA. Thereafter, the claims were reviewed and a supplemental statement of the case was issued in May 2010. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006); Kent v. Nicholson, 20 Vet. App. 1 (2006), Mayfield v. Nicholson (Mayfield III), 499 F.3d 1317 (Fed. Cir. 2007). During the pendency of this appeal, the Court in Dingess v. Nicholson, 19 Vet. App. 473 (2006), found that the VCAA notice requirements applied to all elements of a claim. An additional notice as to this matter was provided in May 2006. The Veteran has been made aware of the information and evidence necessary to substantiate his claims and has been provided opportunities to submit such evidence. A review of the claims file shows that VA has conducted reasonable efforts to assist him in obtaining evidence necessary to substantiate his claims during the course of this appeal. His service treatment records, service personnel records, VA treatment records, and records from the Social Security Administration (SSA) have been obtained and associated with his claims file. The Veteran was not been provided with a VA examination to assess the current nature and etiology of his claimed diabetes mellitus, hepatitis C, or depression disorders on appeal. However, VA need not conduct an examination with respect to the claims on appeal, as information and evidence of record contains sufficient competent medical evidence to decide the claim. See 38 C.F.R. § 3.159(c)(4) (2009). Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. Simply stated, the standards of McLendon are not met in this case, as there is no competent evidence of diabetes mellitus in service or until 2004, many years after service, no competent evidence of hepatitis C or any risk factors for hepatitis C in service, and no evidence of any depression in service or for many years after service. Therefore, VA examinations to evaluate these claimed disabilities are not warranted. Furthermore, the Veteran has been notified of the evidence and information necessary to substantiate his claims, and he has been notified of VA's efforts to assist him. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). As a result of the development that has been undertaken, there is no reasonable possibility that further assistance will aid in substantiating his claims. Laws and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2009). Service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability on the basis of the merits of such claim is focused upon (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); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be established under the provisions of 38 C.F.R. § 3.303(b) when the evidence, regardless of its date, shows that a veteran had a chronic condition in service or during the applicable presumptive period. In addition, certain chronic diseases, including diabetes mellitus, may be presumed to have been incurred in 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. The veteran is entitled to a presumption of service connection if he is diagnosed with type 2 diabetes mellitus, or other enumerated diseases, associated with exposure to certain herbicide agents, if he served in the Republic of Vietnam during a prescribed period. 38 C.F.R. §§ 3.307, 3.309; 38 U.S.C.A. § 1116 (West 2002 & Supp. 2009). The Federal Circuit has held that when a claimed disorder is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during the service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). However, a disease incurred during active service will not be deemed to have been incurred in the line of duty if it was a result of the person's own willful misconduct, including abuse of alcohol or drugs. See 38 U.S.C.A. § 105 (West 2002); 38 C.F.R. §§ 3.1(m), 3.301(d). The 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 June 9, 1999); VAOPGCPREC 2-98 (Feb. 10, 1998). The simple drinking of alcoholic beverage is not of itself willful misconduct. 38 C.F.R. § 3.301(c)(2). Alcohol abuse is defined as 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. 38 C.F.R. § 3.301(d). Similarly, the isolated in 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. 38 C.F.R. § 3.301(c). 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. The Board observes that the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that compensation could not be awarded pursuant to 38 U.S.C.A. § 1110 and 38 C.F.R. § 105(a) either for a primary alcohol abuse disability incurred during service or for any secondary disability that resulted from primary alcohol abuse during service. Allen v. Principi, 237 F.3d 1368, 1376 (Fed. Cir. 2001). In a claim for service connection, the ultimate credibility or weight to be accorded evidence must be determined as a question of fact. The Board determines whether (1) the weight of the evidence supports the claim, or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim; the appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Factual Background and Analysis The Veteran contends that he became depressed as a result of events during military service. He states that he began drinking alcohol heavily and getting into trouble during service and was devastated after orders to serve in Japan and Vietnam were cancelled. He contends that he became so depressed after this perceived rejection that he used alcohol and drugs. (The Board denied his claim for service connection for alcoholism and drug addiction in a decision dated in May 2009). In his December 2004 original claim for service connection, he asserted that he had hepatitis C that began in September 1967 and that he had diabetes since June 1969. On each occasion, he saw a civilian physician for treatment. He stated that this was the first time coming to VA for his ailments. The Veteran submitted two lay statements in support of his claims. His mother indicated that the Veteran was ashamed by his general discharge because many other family members had served honorably in the military; she explained that the Veteran began drinking more and became involved with drugs after his discharge. His wife of 22 years stated that when she met the Veteran in 1981, he told her about his bout with hepatitis, diabetes, and depression during military service, and she described some effects of his depression and alcoholism throughout their marriage. Service treatment records were entirely silent for any complaints, findings, or reference to any endocrine or liver problems, including any symptoms or diagnosis of diabetes mellitus or hepatitis C. Service treatment records and personnel records documented multiple instances of disciplinary action that resulted from alcohol intoxication, including non-judicial punishment, a civil conviction, and two summary courts-martial. In a treatment note dated in August 1966, the Veteran was noted to be intoxicated and glue sniffing. In a treatment note dated in January 1967, he stated that he wanted to see a psychiatrist for his drinking problem, disclosing that he had been drinking to excess since age 16 and that his father also had a history of alcoholism. The impression was definite drinking problem, but poorly motivated for treatment. The examiner reasoned that impending disciplinary action was likely the primary reason for the request at this time. In a neuropsychiatric consultation report dated in April 1967, the Veteran reported a history of being jailed twice prior to enlistment for disorderly conduct while intoxicated, using sleeping pills and "medicine" for "kicks," smoking pot, and being sent to a psychologist for treatment for drug use by his mother. He stated that he was expelled from school in grade 12 for drunkenness and fighting during class hours and that he joined the Navy in lieu of being incarcerated by his family. On mental status examination, the examiner noted there was no evidence of psychosis, disabling neurosis, or significant depression. The diagnosis was passive- aggressive personality. A September 1967 discharge examination report listed normal endocrine system, genitourinary, urinalysis, and psychiatric findings. He was discharged in September 1967 at age 19 under honorable conditions. The Veteran does not allege, nor does the evidence show, that he served in the Republic of Vietnam or was otherwise exposed to any herbicides. As a result, he is not entitled to any presumption that his diabetes mellitus was due to exposure to herbicides. Post-service VA treatment records show that he was admitted to a substance abuse treatment program in September 2004. He requested help with his alcohol problem, stated that he had been homeless for the past five months, and described stressors due to his divorce from his wife; he was not shown to be clinically depressed. Diagnoses at discharge were alcohol dependence, type II diabetes, and hepatitis C. In an infectious disease consultation report dated in September 2004, the Veteran gave a history of IDU (intravenous drug use) from 1970 to 1979, as well as heavy ethanol use for many years. The impression was hepatitis C. After completing a substance abuse program, he was transferred to a VA domiciliary in October 2004 where he remained until February 2005. An October 2004 psychiatry note reflected that the Veteran "carried" diagnoses of depression, type II diabetes, and hepatitis C. In an October 2004 domiciliary note, the Veteran stated that he believed he contracted hepatitis C during intravenous use of cocaine. In a November 2004 substance abuse consultation report, he described a long history of polysubstance abuse, including using heroin since age 19 [1967]. In correspondence dated in January 2005, the Veteran identified receiving treatment for alcoholism since the early 1970s and treatment for alcoholism, drug addiction, hepatitis C, diabetes, and depression and bipolar disorder from the Brooklyn and Montrose VA Medical Centers since September 2004. In January 2005, he returned a Risk Factors for Hepatitis Questionnaire and indicated that he had used intranasal cocaine in 2003 and part of 2004. He denied any other hepatitis risk factors, including having ever used intravenous drugs. In January 2005 the Veteran indicated that he was in a substance abuse program at Our Lady of Mercy Hospital in 1995 and 1996 and was told then that he had hepatitis C. It appears that the RO took no action at the time to request the identified private treatment records. Additional VA outpatient and inpatient treatment records, including VA records that are part of the Veteran's SSA disability file, showed ongoing treatment for diabetes mellitus, hepatitis C, and bipolar 0disorder, as well as some psychosis in June 2005 attributed to side effects from hepatitis C medications. In July 2009, the RO asked the Veteran to complete an Authorization and Consent to Release Information Form (VA Form 21-4142) to obtain the private treatment records from Our Lady of Mercy Hospital that he had previously identified. He has not responded to the request. In this regard, the Court has held that VA's duty to assist the veteran in developing the facts and evidence pertinent to a veteran's claim is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In an August 2010 post-remand brief, the Veteran's service representative acknowledged that the Board's May 2009 remand directives had been accomplished and offered no further evidence or argument other than to suggest that the evidence of record was at least in equipoise with regard to the Veteran's claims. The Board has considered the Veteran and his representative's contentions, but finds that service connection for diabetes mellitus, hepatitis C, and depression (including bipolar disorder) must be denied. First, the claim for service connection for hepatitis C must be denied because competent medical evidence of record suggests that it resulted from the Veteran's willful misconduct, particularly his admitted history of intravenous drug use from at least 1970 to 1979 and/or his intravenous and/or intranasal cocaine use. While the Board finds that it is possible, or even plausible, given his extensive history of drug use that the Veteran had hepatitis C prior to the first competent medical evidence in the claims file that documented hepatitis C in September 2004, the Board finds that the Veteran's assertions that he had hepatitis C during, or as a result of, service are not credible. His service treatment and personnel records reflect no complaints or findings suggestive of hepatitis C; he denied any risk factors such as having any tattoos or body piercings, having a blood transfusion, or exposure to blood or fluids as a healthcare worker; and he clearly provided an inaccurate history of his intravenous drug use in January 2005 in the course of seeking VA compensation benefits that contradicted his prior statements made to VA medical providers that he had used drugs intravenously for many years. Therefore, his statements cannot be considered as persuasive evidence in support of his claim. In addition, to prevail on the issue of service connection there must be: medical evidence of a current disability; medical evidence, or in some cases lay evidence, of in-service incurrence or aggravation of a disease or injury; and, medical evidence of a nexus between an in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); Pond v. West, 12 Vet. App. 341, 346 (1999). In the present case, there is no persuasive lay evidence or competent medical evidence of a nexus between any in-service disease or injury and his current hepatitis C, first diagnosed in September 2004 according to the evidence of record. Second, the claim for service connection for depression must also be denied. While post-service VA records reflect that the Veteran has depression and/or bipolar disorder, there is no competent medical evidence or persuasive lay evidence that he has depression that was caused or aggravated by service. Instead, service records show that he asked to see a psychiatrist for his drinking problem during a time of pending disciplinary action, he admitted to using alcohol to excess since age 16, and at no time during service did he describe any depression, nor was any depression noted on neuropsychiatric examination in April 1967. Post-service VA treatment records contain statements from the Veteran that admit progressive and frequent use of alcohol and drug use after service. However, there is no persuasive lay evidence or competent medical evidence of a nexus between any in- service disease or injury and his current depression or bipolar disorder, first diagnosed in 2004 according to the evidence of record. Hickson, 12 Vet. at 253; Pond, 12 Vet. App. at 346. In this regard, the Board carefully considered statements from the Veteran, his mother, and ex-wife that he was devastated by cancelled deployment orders and by his discharge under honorable conditions. However, rather than showing any depression before or during service that continued after service, competent medical evidence shows that the Veteran used alcohol and drugs, misused medications, and abused other substances (glue) before service, during service, and progressively after service. His behavior apparently contributed to his divorce and subsequent homelessness, at which time he sought treatment for the first time from VAMC in September 2004 and was then diagnosed with depression and/or bipolar disorder. Finally, service connection for diabetes mellitus must be denied. Competent VA medical records show that he has diabetes mellitus now, but there is no competent medical evidence that he had it during service or within a year of separation from service. The Veteran himself asserted that he first had diabetes mellitus in June 1969, though he has presented no competent medical evidence of diabetes mellitus prior to September 2004, approximately 37 years after separation from service. The passage of many years between service discharge and medical documentation of a claimed disability is evidence against a claim of service connection. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). For all the foregoing reasons, the claims for service connection for diabetes mellitus, hepatitis C, and depression must be denied. In arriving at the decision to deny the claims, the Board has considered the applicability of the benefit-of-the- doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection diabetes mellitus is denied. Entitlement to service connection for hepatitis C is denied. Entitlement to service connection for depression is denied. ____________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs