Citation Nr: 1237338 Decision Date: 10/31/12 Archive Date: 11/09/12 DOCKET NO. 10-06 950 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for hepatitis C. 2. Entitlement to service connection for hepatitis A. ATTORNEY FOR THE BOARD Kristi L. Gunn, Counsel INTRODUCTION The Veteran served on active duty from July 1973 to September 1976. The Veteran died in September 2010, and the appellant is his surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the St. Paul, Minnesota, Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for hepatitis A and hepatitis C. In August 2009, the Veteran filed a notice of disagreement (NOD), and a statement of the case (SOC) was issued in December 2009. The RO received the Veteran's substantive appeal in February 2010. As stated above, the Veteran died in September 2010. Due to the death of the Veteran, the Board had no jurisdiction to adjudicate the merits of the claims, as such, both issues were dismissed in a November 2010 Board decision. In December 2010, the Veteran's surviving spouse submitted an informal motion for substitution to continue the Veteran's appeal. In June 2011, the RO granted the appellant's request for substitution. See Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110- 389, § 212, 122 Stat. 4145, 4151 (2008) (creating new 38 U.S.C. § 5121A, governing substitution in case of death of a claimant who dies on or after October 10, 2008). Accordingly, the Board recognizes the substitution of the Veteran's surviving spouse. The issue of entitlement to service connection for depression, for accrued benefits purposes, has been raised by the record. See the December 2010 personal statement. The issue has not been adjudicated and is referred to the RO for the appropriate action. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. The Veteran died in September 2010, prior to promulgation of a decision. The Appellant filed a proper claim for substitution in December 2010. 2. The Veteran's hepatitis C was incurred as the result of drug abuse in service. 3. Symptoms of hepatitis A were not chronic in service. 4. Symptoms of hepatitis A have not been continuous since separation from service. 5. The Veteran did not have a current diagnosis of hepatitis A. CONCLUSIONS OF LAW 1. Hepatitis C was not incurred in the line of duty. 38 U.S.C.A. §§ 101(16), 105(a), 1110, 1131, 5103, 5103A, 5107, 5121 (West Supp. 2011); 38 C.F.R. §§ 3.159, 3.301(d), 3.303 (2011). 2. The criteria for service connection for hepatitis A have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107, 5121 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.303 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify & Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, or any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(b) (2011); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the Court held that VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. In this case, the Board finds that the VCAA notice requirements have been satisfied by a timely June 2009 letter issued prior to the Veteran's death. In the letter, VA informed the Veteran that in order to substantiate a claim for service connection the evidence needed to show a current disability, a disease or injury in service, and evidence of a nexus between the post-service disability and the disease or injury in service, which was usually shown by medical records or medical opinions. In addition to the foregoing analysis, to whatever extent the decision of the Court in Dingess v. Nicholson, 19 Vet. App. 473 (2006), requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date, the Board finds no prejudice to the appellant in proceeding with the present decision. Since the claims are being denied, any such effective date questions are moot. The Veteran had ample opportunities to meaningfully participate in the adjudicative claims process. Any error or deficiency in this regard is harmless, and not prejudicial. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has obtained the Veteran's service treatment records, VA outpatient treatment records, and records from the Social Security Administration (SSA). The Veteran was also provided a VA examination in connection with his service connection claims prior to his death. The examiner reviewed the Veteran's medical history, recorded pertinent examination findings, and provided conclusions with supportive rationale. The Board finds that the VA examination report is probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claims. The evidence of record provides sufficient information to adequately evaluate the claims, and the Board is not aware of the existence of any additional relevant evidence which has not been obtained. For these reasons, no further assistance to the appellant with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). II. Decision If a claimant dies while a claim for any benefit under a law administered by the Secretary, or an appeal of a decision with respect to such a s claim, is pending, a living person who is eligible to receive accrued benefits under 38 U.S.C.A. 5121a may, not later than one year after the date of the death of such claimant, file a request to be substituted as the claimant for the purposes of processing the claim to completion. See 38 U.S.C.A. § 5121A. In this case, the appellant filed a claim for substitution in December 2010, clearly within one year of the Veteran's death in September 2010. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. Service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The chronicity provision of 38 C.F.R. § 3.303(b) is applicable where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under the Court's case law, lay observation is competent. Savage v. Gober, 10 Vet. App. 488, 498 (1997). In addition, if a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b). In this case, the evidence must show that the Veteran's hepatitis C infection, risk factor(s), or symptoms were incurred in or aggravated by 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. However, direct service connection may be granted only when a disability was incurred or aggravated in line of duty, and not the result of a veteran's own willful misconduct or, for claims filed after October 31, 1990, the result of his or her abuse of alcohol or drugs. See 38 C.F.R. § 3.301(a) (2011). 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, such disability 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. See 38 C.F.R. § 3.301(c)(3) (2011). An injury or disease incurred during active military, naval, or air service shall not be deemed to have been incurred in the 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 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. See 38 C.F.R. § 3.301(d) (2011); see also 38 U.S.C.A. § 105 (West 2002 & Supp. 2011); 38 C.F.R. § 3.1(m) (2011). 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). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the clam or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Prior to his death, the Veteran asserted that his hepatitis infections were caused by his use of intravenous drugs during his active military service. In the February 2010 substantive appeal, the Veteran stated that he used drugs while in service. He specifically explained that when he was stationed in Germany, there was nothing to do but "drink and use drugs." The Veteran admitted to denying drug use when diagnosed with hepatitis in service, but explained that he did so to prevent himself from receiving any type of disciplinary action. The Veteran asserted that service connection is warranted for hepatitis C and hepatitis A. Service treatment records note that the Veteran reported to sick call in January 1976 with complaints of hematemesis that started five hours ago. The Veteran denied the use of drugs and was diagnosed with hepatitis, rule out gastrointestinal bleed. Upon discharge from service, clinical evaluation of the Veteran's endocrine system was normal, as reflected on the September 1975 report of medical examination. Additionally, serology testing was negative, and the Veteran indicated that he was unsure whether he had any type of stomach, liver, or intestinal trouble on his report of medical history dated September 1976. Post service treatment records show a history of hepatitis C and intravenous drug abuse. VA outpatient treatment records reflect a diagnosis of hepatitis C as well as a past history of positive test results for hepatitis C in 1994 and 1995. In October 1996 VA outpatient treatment notes, the Veteran reported using cocaine and heroin since his military service. He explained that while stationed in Germany, he began injecting heroin and stopped intravenous use when he was discharged from service. After examination testing, he was diagnosed with alcohol dependence and multisubstance dependence (heroin, cocaine). In November 1996, the Veteran admitted to snorting cocaine at the age of 12. Records from the SSA also report a history of intravenous drug abuse since the 1970s. See the December 2008 private treatment record. In the February 2010 Risk Factors for Hepatitis Questionnaire, the Veteran admitted to using intravenous drugs from 1974 to 1980, intranasal cocaine use, receiving a blood transfusion in 1977, and engaging in high-risk sexual activity while stationed in Germany and in the United States. See the February 2010 questionnaire. While the Board will concede a history of hepatitis noted during his period of service, service connection for hepatitis C is not warranted. Hepatitis C is not deemed to be incurred in the line of duty as it was the result of the Veteran's own willful misconduct. 38 U.S.C.A. § 105(a) (West Supp. 2011); 38 C.F.R. § 3.301(d) (2011). The Veteran had illicit intravenous drug use during service that was not isolated, but rather was frequent, and was not in the line of duty. The Board points out that the Veteran admitted on several occasions to the frequent intravenous use of illicit substances in post-service treatment records. While the Board acknowledges that the Veteran denied in-service drug usage in January 1976, the Veteran admitted to lying about drug use in order to remain in the military, receive an honorable discharge and not be held to pay an Article 15 or be court marital. See the February 2010 personal statement. Therefore, this in-service risk factor may not be recognized for VA disability compensation purposes. The Board notes that a VA examination and medical opinion was provided to the Veteran to determine the etiology of the Veteran's hepatitis C and hepatitis A. The Veteran reported being diagnosed with hepatitis C in service in 1974 after developing yellow coloring in his eyes. After physical examination and laboratory testing, the VA examiner diagnosed the Veteran with hepatitis A, resolved with residual antibody and hepatitis C. The VA examiner explained that an acute episode of hepatitis A most likely occurred in service in January 1976 with no residuals except a protective antibody. The examiner explained that hepatitis A is transmitted by mouth and causes an acute self-limited illness rarely occurring with any residual complications. Since the in-service treatment for "hepatitis" occurred as a short hospitalization without blood testing and no residual reported at discharge, the examiner concluded that this was the result from more likely hepatitis A and not hepatitis C. The examiner further added that since the Veteran denied the use of drugs and there is no evidence of transfusions or blood exposure, his hepatitis C most likely was acquired after military discharge in 1976 since there is extensive documentation referencing intravenous drug use, to include heroin, cocaine, and marijuana. The examiner stated that heroin is usually injected and injection drug use carries a very high risk for hepatitis C and is the "likely cause of [the] [Veteran's] hepatitis C infection." The Board acknowledges the August 2009 VA examiner's opinion regarding the etiology of the Veteran's hepatitis C, but finds it not probative. The VA examiner concluded that the Veteran's hepatitis C did not originate in service because the Veteran denied drug use in the January 1976 service treatment record. However, as mentioned above, the Veteran admitted throughout the appeal that he used drugs during service, specifically intravenous drug use with heroin. He explained that he denied using drugs during service for fear of receiving disciplinary action and a dishonorable discharge. Because of the inaccurate factual history provided by the Veteran to the VA examiner, the Board finds that the August 2009 VA opinion, with respect to the relationship of hepatitis C to service, is of no probative value. See Reonal, 5 Vet. App. at 461 (holding that the Board may reject a medical opinion based on an inaccurate factual basis); see also Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992) (stating that the Board must evaluate the credibility and weight of the history upon which a medical opinion is predicated). As to the remaining risk factors for hepatitis C identified by the Veteran, namely engaging in high-risk sexual activity and receiving a blood transfusion in 1977, such factors have no bearing on whether the Veteran's hepatitis C was incurred in service. The August 2009 VA examiner indicated that multiple sexual partners as a risk factor is a "very small or minimal risk "for hepatitis C compared to injectable drug use and blood transfusions prior to 1987. Additionally, the Veteran reported receiving a blood transfusion in 1977, which is after his discharge from service. To the extent that the Veteran also claimed service connection for hepatitis A, a review of the Veteran's post service treatment records shows no evidence of hepatitis A or any residuals related to hepatitis A. The August 2009 VA examiner concluded that once hepatitis A is contracted, immunity develops that prevents subsequent disability from that disease. See the August 2009 VA examination report. As noted above, to prevail on the issue of service connection, there must be medical evidence of a current disability. See Brammer, 3 Vet. App. 223. In this case, other than the Veteran's assertions, the record contains no evidence of a diagnosis of hepatitis A post service, or a chronic residual disability of hepatitis A. See McClain, 21 Vet. App. 319. Without a current showing of hepatitis A, or chronic residual disability of hepatitis A, service connection is not warranted. The Board finds that service connection for hepatitis A and hepatitis C is not warranted. The Board is cognizant of the appellant's and Veteran's assertions, maintaining that his hepatitis A and hepatitis C are service-related; however, the assertions are not found to be credible. As previously mentioned, while the Veteran denied drug usage in service during his treatment of hepatitis in January 1976, he repeatedly admitted throughout the pendency of his appeal that he lied in service to keep an honorable discharge. He admitted to using intravenous drugs on a consistent basis during his military service and after discharge from service. The Veteran's contradictions render his lay statements attributing hepatitis A and C to service not credible. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997). The appellant believes that the Veteran's hepatitis A and C are causally related to the Veteran's active service. However, she has not been shown to possess the requisite training or credentials needed to render a competent opinion as to medical causation. As such, her lay opinion does not constitute competent medical evidence and lacks probative value. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Moreover, to the extent that the holding in Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) can be interpreted to enable a lay person to speak as to etiology in some limited circumstances involving only observable factors, the question of causation here involves complex issues that the appellant is not competent to address. As the evidence on file shows no current disability of hepatitis A and that the Veteran's hepatitis C did not originate during any period of service, except through the abuse of an illicit substance in service, the preponderance of the evidence is against the claims, and the claims for service connection for hepatitis A and hepatitis C are denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Entitlement to service connection for hepatitis A, for accrued benefits purposes, is denied. Entitlement to service connection for hepatitis C, for accrued benefits purposes, is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs