Citation Nr: 1319923 Decision Date: 06/20/13 Archive Date: 07/02/13 DOCKET NO. 06-30 709 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for hepatitis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Cryan, Counsel INTRODUCTION The Veteran served on active duty from March 1972 to March 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In July 2010, the Board remanded the Veteran's claim in order to schedule the Veteran for a hearing before the Board. The Veteran testified at a hearing before the Board in November 2010. The Veteran's claim was remanded by the Board for additional development in January 2011. FINDING OF FACT The Veteran does not have hepatitis that is attributable to active service. CONCLUSION OF LAW The Veteran does not have hepatitis that is the result of disease or injury incurred in or aggravated during active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice 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. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in a letter dated in October 2005. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful, or prejudicial, falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the September 2011 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained an examination with respect to the claim. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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, 3.304 (2012). The chronicity provisions are applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service, or during an applicable presumptive period, and still has that disability. That evidence must be medical unless it relates to a condition as to which lay observation is competent. 38 C.F.R. § 3.303(b) (2012). Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). Applicable regulations provide that no compensation shall be paid if the disability resulting from injury or disease in service is a result of the Veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C.A. §§ 105, 1110 (West 2002). 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, the result of his or her abuse of alcohol or drugs. 38 C.F.R. § 3.301 (2012). 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 or death, such disability or death 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. 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. 38 C.F.R. § 3.301(c)(3) (2012). 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) (2012). "Willful misconduct" means an act involving conscious wrongdoing or known prohibited action. A service department finding that injury, disease or death was not due to misconduct will be binding on the Department of Veterans Affairs unless it is patently inconsistent with the facts and the requirements of laws administered by the Department of Veterans Affairs. (1) It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. (2) Mere technical violation of police regulations or ordinances will not per se constitute willful misconduct. (3) Willful misconduct will not be determinative unless it is the proximate cause of injury, disease or death. 38 C.F.R. § 3.1(n) (2012). The Veteran contends that he has hepatitis as a result of his active duty service. Specifically, he indicated that he believes that he contracted hepatitis after receiving inoculations in service with air guns used on multiple service members. The Veteran's service treatment reports (STRs) do not reflect any complaints, findings, or treatment for hepatitis. The records reflect that in January 1973, the Veteran admitted to taking heroin intravenously. In December 1973, the Veteran again admitted to using heroin once. The examiner noted that old needle marks indicated signs of physical addiction. In September 1974, the Veteran was noted to have repeated drug abuse and was referred for a drug program. In October 1974, the Veteran was admitted for drug detoxification for intravenous heroin use. Physical examination revealed needle tracks. A record from Kaiserslautern Community Drug and Alcohol Assistance Center (CDAAC) Record of Rehabilitative Care indicates that the Veteran was initially seen in February 1973 and was counseled six times during the period from February 1973 to March 1973. Alcohol and Drug Abuse Control Program Intake records dated from 1973 to 1975 indicate that the Veteran was in counseling for drug abuse. Post-service VA treatment records reflect that the Veteran was admitted for detoxification for alcohol dependency in July 1975 and alcohol and drug dependency in February 1988. In January 1989, the Veteran was noted to have a long history of intravenous cocaine use. He denied a history of hepatitis at that time. In April 1993, he was noted to have a chemical dependency on heroin, cocaine and alcohol. In July 2001, the Veteran was screened for hepatitis. Hepatitis C risk factors were reported to include intravenous drug use. Following laboratory testing, the Veteran was assessed with hepatitis C. The Veteran was again assessed with hepatitis C and alcohol abuse in October 2001. In January 2002, the Veteran was noted to be positive for hepatitis C and was being followed by the hepatology department at VA. Records from the Social Security Administration (SSA) reflect that the Veteran was originally granted SSA disability benefits effective May 1989 for a primary diagnosis of fractures of the upper limb. A Disability Determination and Transmittal form dated in May 1994 reflects that the Veteran's benefits were ceased. He was noted to have a primary diagnosis of status post fracture of the left arm and a secondary diagnosis of psychoactive substance dependence disorder-alcohol. A Disability Determination and Transmittal form dated in December 1994 indicates that the Veteran's SSA disability benefits were reinstated due to a primary diagnosis of paranoid schizophrenia and other psychotic disorders and a secondary diagnosis of psychoactive substance dependence disorder-alcohol. A Disability Determination and Transmittal form dated in July 2001 reflects that the Veteran's SSA disability benefits were continued and his primary and secondary diagnoses were noted to be the same as the December 1994 diagnoses. A Disability Determination and Transmittal form dated in February 2006 also reflects that the Veteran's SSA benefits were continued due to a primary diagnosis of affective disorders and a secondary diagnosis of anxiety related disorders. The medical records submitted with the SSA disability records include treatment and assessments from various psychiatric treatment providers and are unrelated to the Veteran's claim for hepatitis C. Additional medical records from the SSA are from VA and are discussed above. At a hearing before the Board in November 2010, the Veteran testified that he was treated with antibiotics soon after leaving service in 1975 although he did not specifically indicate that the antibiotics were prescribed for hepatitis C. He indicated that he may have been exposed to hepatitis in service after having sexual relations with a woman in Germany or from vaccinations he received in service. The Veteran testified that he saw blood running down the arms of a fellow service member who was injected with an air gun right before the Veteran was inoculated using the same air gun. The Veteran admitted to drug use during service. He denied exposure to blood transfusions, tattooing, body piercing, or acupuncture. He also denied sharing razors and toothbrushes while in service. At a VA examination April 2011, the Veteran reported that he was exposed to hepatitis C in service after receiving a series of injections using the same air gun as other troops. He recalled fellow troops "bleeding all over" after their injections. The Veteran did not describe clinically evident hepatitis infection while in service. The Veteran reported intravenous drug use one time in 1975. However, the examiner noted that the Veteran's records reflect intravenous heroin use as early as 1972 with sporadic use until at least 2001 and intranasal cocaine use in 1976 and 1977. The examiner noted that the Veteran has completed multiple drug rehabilitation programs the last being in November 2010 with continued use of cocaine (inhaled) and alcohol use. The Veteran denied a history of blood transfusions, hemodialysis, tattoos, or repeated body piercings. Following a review of the claims file, relevant medical history, and examination of the Veteran including review of laboratory tests, the examiner diagnosed the Veteran with chronic hepatitis C infection. The examiner concluded that it is less likely than not that the Veteran's exposure to air gun inoculations in service was the cause of his exposure to hepatitis C. The examiner opined that it is at least as likely as not that the Veteran was infected with hepatitis C through intravenous or intranasal drug use given his long history of polysubstance abuse. In considering the evidence of record and the applicable laws and regulations, the Board concludes that the Veteran is not entitled to service connection for hepatitis. The only competent medical opinion of record regarding etiology, that of the April 2011 VA examiner, found that it was less likely than not that the Veteran's exposure to hepatitis C was caused by the use of air gun inoculators during service. That opinion is more probative as to the etiology of the Veteran's hepatitis as the examiner reviewed the entire claims file and provided a rationale to support the opinion based on that examiner's medical training and expertise. Moreover, as to the Veteran's contentions that his hepatitis C is related to in-service inoculations administered with a contaminated needle or air gun, according to the VA's Veterans Benefits Administration, while biologically possible, there have been no case reports of air gun transmission of hepatitis C. VA Fast Letter 04-13 (June 29, 2004). The Board finds that the lack of scientific evidence of hepatitis C transmission by air gun injections to be more probative on the issue than the Veteran's speculation that air guns cause hepatitis C. Additionally, the April 2011 VA examiner found that it was more likely than not that the Veteran's hepatitis C was caused by his drug use. As noted, the Veteran's STRs document intravenous drug use, which as discussed, constitutes misconduct. As for any drug use contemporaneous with service, the law clearly prohibits service connection for a disease (e.g., hepatitis C), resulting from willful misconduct due to the abuse of illegal drugs. 38 U.S.C.A. §§ 105(a), 1110 (West 2002); 38 C.F.R. § 3.301(a) (2012). The Board acknowledges that the Veteran is competent to report that he witnessed another soldier bleeding after receiving inoculations and that he was treated with antibiotics for an unknown illness soon after leaving service. Lay testimony is competent to establish the presence of observable symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). However, the Veteran's opinion that his hepatitis is related to his active duty service is insufficient to provide the requisite etiology of the claimed hepatitis because such matters require medical expertise. A layperson is generally not capable of providing opinions on matters requiring medical knowledge, such as the condition causing or aggravating the symptoms because of the lack of medical training. 38 C.F.R. § 3.159(a)(1) (2012); Duenas v. Principi, 18 Vet. App. 512 (2004); Bostain v. West, 11 Vet. App. 124 (1998); Stadin v. Brown, 8 Vet. App. 280 (1995); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Therefore, the Veteran's statements regarding his claimed hepatitis being related to his active duty service including inoculations with air guns are not competent as he is not medically qualified to provide evidence on a matter requiring medical expertise, such as an opinion as to etiology. Accordingly, the Board finds that the preponderance of the evidence weighs against the claim for service connection for hepatitis, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for hepatitis is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs