Citation Nr: 1325019 Decision Date: 08/07/13 Archive Date: 08/13/13 DOCKET NO. 10-01 074 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for carpal tunnel syndrome. 2. Entitlement to service connection for a pinched nerve in the leg. 3. Entitlement to service connection for polysubstance abuse/addiction. 4. Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served on active duty from June 1970 to March 1974. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a rating decision issued by the Regional Office (RO) in Waco, Texas. The Board notes that in a May 2010 written statement the Veteran wrote that he wanted to make his claim for service connection for a pinched nerve a "service disconnected claim." The Veteran is advised that there is no such thing as a "service disconnected claim." While a Veteran may be awarded a non-service connected pension, the Veteran was previously notified that he was ineligible for this benefit because he is incarcerated. FINDINGS OF FACT 1. Carpal tunnel syndrome was not caused or made worse by military service, nor was it shown to be present to a compensable degree within one year of service. Carpal tunnel syndrome was not diagnosed until many years after service. 2. A pinched nerve in the leg was not caused or made worse by military service, nor was it shown to be present to a compensable degree within one year of service. Additionally, there is no competent and credible evidence that this condition exists. 3. Primary substance abuse/addiction is not a disability for which service connection may be granted. 4. Hepatitis C was not caused or made worse by military service. Additionally, diseases that are secondary to primary substance abuse may not be service connected. CONCLUSIONS OF LAW 1. Carpal tunnel syndrome was not incurred in, or aggravated by, service, nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 2. A pinched nerve in the leg was not incurred in, or aggravated by, service, nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 3. Service connection for primary substance abuse/addiction is prohibited by law. 38 U.S.C.A. § 105; 38 C.F.R. 3.301(d). 4. Hepatitis C was not shown to have been incurred in, or aggravated by, service. Additionally, diseases that are due to primary substance abuse are not subject to service connection, regardless of whether the substance abuse took place in service. 38 U.S.C.A. §§ 105, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3. 301(d) 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims and Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants with substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. § 3.102, 3.156(a), 3.159. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate his or her claim. 38 U.S.C.A. § 5103(a), 38 C.F.R § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183, 186-187 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. The Board notes that 38 C.F.R. § 3.159 was revised in part, effective May 30, 2008. See 73 Fed. Reg. 23,353-23,356. The third sentence of 38 C.F.R. § 3.159(b)(1), which stated that "VA will also request that the claimant provide any evidence in the claimant's possession that pertains to the claim," was removed. This amendment applies to all applications pending on, or filed after, the regulation's effective date. VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112, 115 (2004). However, the VCAA notice requirements may be satisfied notwithstanding errors in the timing or content of the notice if such errors are not prejudicial to the claimant. Id at 121. Further, a defect in the timing of the notice may be cured by sending proper notice prior to a re-adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333-1334 (Fed. Cir. 2006). The VA General Counsel issued a precedential opinion interpreting Pelegrini as requiring the Board to ensure that proper notice is provided unless it makes findings regarding the completeness of the record or other facts that would permit the conclusion that the notice error was harmless. See VAOGCPREC 7-2004. The United States Court of Appeals for the Federal Circuit reaffirmed the importance of proper VCAA notice in Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Mayfield and its progeny instruct that a comprehensive VCAA letter, as opposed to a patchwork of other post-decisional documents, is required to meet the VCAA's notification requirements. Id at 1320. However, VCAA notification does not require a pre-adjudicatory analysis of the evidence already contained in the record. See, e.g. Mayfield v. Nicholson, 20 Vet. App. 537, 541 (2006). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sum nom Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice requirements are applicable to all five elements of a service connection claim. Thus, the Veteran must be notified that a disability rating and effective date for the award of benefits will be assigned if service connection for a claimed disability is awarded. Id at 486. In this case, the Veteran was sent a letter in February 2008 which explained how VA could assist him with obtaining evidence in support of his claim. This letter also explained what the evidence needed to show in order to establish service connection for a claimed disability as well as how VA assigns ratings and effective dates for service connected disabilities. VA also must make reasonable efforts to assist the claimant with 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 of record evidence including service treatment records, VA treatment records, prison clinic treatment records, and the written contentions of the Veteran. The Veteran identified treatment records from various private facilities and a former employer, but attempts to obtain these records were unsuccessful. The Veteran was properly notified of VA's inability to obtain the records. Moreover, the Veteran indicated that most of these records pertained to substance abuse treatment, and are therefore irrelevant to his claims for service connection for carpal tunnel syndrome, a pinched nerve in the leg, or hepatitis C. The Veteran's claim for service connection for primary substance abuse/addiction is denied as a matter of law, so additional development of materials pertinent to this claim would in any event not be of any benefit to the Veteran. The Veteran also identified records from the Office of Special Investigations (OSI) which he related would document that he was involved in drug related criminal activity in service. This is not related to the Veteran's claims. Engaging in criminal activity is misconduct and not subject to service connection. 38 C.F.R. § 3.301. The Veteran was afforded a VA examination addressing the etiology of the Veteran's hepatitis C. The examiner reviewed the record and provided a well-reasoned explanation for the conclusion drawn. Thus, the exam is adequate for rating purposes. The Veteran was not afforded a VA examination with respect to his claims for service connection for carpal tunnel syndrome, a pinched nerve, or substance abuse/addiction. In this regard, the Board notes that VA is required to provide a medical examination or medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5107A(d). An examination is considered necessary if the record contains competent evidence that (a) the Veteran has a current disability or persistent or recurrent symptoms of a disability; (b) the disability or symptoms may be associated with the Veteran's service; and (c) the record does not contain sufficient medical evidence for VA to make a decision on the claim. Id. In this case VA was not required to provide an examination with respect to these issues because the record does not contain any competent and credible evidence that the Veteran's carpal tunnel syndrome or claimed pinched nerve may be associated with his military service or with a service connected disability. Additionally, an examination with regard to the Veteran's claim for service connection for primary substance abuse/addiction was unnecessary as this claim is disallowed as a matter of law. The Board notes that the Veteran is not service connected for any disabilities; therefore, substance abuse/addiction cannot be secondary to a service connected disability. For the above reasons, the Board finds that VA satisfied its obligations pursuant to the VCAA in this case. Service connection The Veteran contends that he has carpal tunnel syndrome, a pinched nerve in his leg, and hepatitis C as a result of his military service. He also contends that he should be service connected for his polysubstance abuse and dependence because his criminal conduct in using illegal drugs started in service. Service connection may be granted for a disability resulting from disease or injury that was incurred in, or aggravated by, service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection for some chronic diseases, including organic diseases of the nervous system such as carpal tunnel syndrome and a pinched nerve, may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge if all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted on a secondary basis where a disability is proximately due to, or the result of, a service connected disability. 38 C.F.R. § 3.310(a). Additionally, any increase in severity of a non-service connected disease or injury that is proximately due to, or the result of, a service connected disability, will be service connected. 38 C.F.R. § 3.310(b); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Primary alcohol and drug abuse and dependence are not disabilities for which service connection may be granted. 38 U.S.C.A. § 105, 38 C.F.R. § 3.301(d). While service connection for substance abuse and dependence may be granted on a secondary basis, Allen v. Principi, 237 F.3d. 1368 (Fed. Cir. 2001), in this case the Board notes that the Veteran is not service connected for any disabilities so his substance abuse must be considered primary in nature. Additionally, the Veteran has not contended that his substance abuse/dependence was caused by another medical condition. To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The requirement that a current disability exist is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). At the Veteran's separation examination, the Veteran's upper and lower extremities were assessed to be normal. On a Report of Medical History that the Veteran filled out on the same date, the only diseases or injuries identified by the Veteran were hay fever and venereal disease. The examiner noted that the Veteran had used marijuana in the past. His service treatment records are negative for carpal tunnel syndrome or complaints of pain in the wrists or hands. There is also no documentation of a pinched nerve or symptoms related to a pinched nerve. A VA treatment record indicates that the Veteran received substance abuse treatment at a VA Medical Center in September 1981. The diagnosis was drug dependence. Subsequent VA treatment records show additional episodes of treatment for drug abuse and dependence beginning in the 1980s. Treatment records from the mid-1990s show that the Veteran was diagnosed with carpal tunnel syndrome. An August 1996 treatment record reflected that the Veteran reported that he had a nerve conduction study four years ago. He currently had carpal tunnel syndrome which was worse in the past month. These records also show that the Veteran was diagnosed with hepatitis C in or around July 1996. A few months prior to that he had been diagnosed with hepatitis B. In a March 2005 statement, the Veteran alleged that carpal tunnel syndrome, hepatitis C, and drug abuse/dependence "happen [sic] while being in the USAF." He claimed that he got carpal tunnel syndrome as a result of typing while in service. He felt that his hepatitis C was from vaccinations in service. He noted that he was interviewed as part of a criminal investigation while he was in the service. Prison treatment records show that in August 2006 the Veteran requested that he not be assigned work at the prison because he had carpal tunnel syndrome. The Veteran reported a 10 year history of carpal tunnel syndrome in November 2006 and stated he had done administrative work in the past. Another November 2006 record reflected that the Veteran reported having carpal tunnel syndrome for "many years" and that he had been working in a meat packing plant and was having trouble lifting and using his hands with this type of work. In March 2007 the Veteran requested that he be given work restrictions in prison due to carpal tunnel syndrome. In June 2007 the Veteran reported that he had carpal tunnel syndrome for about 15 years. He was wearing wrist braces. None of these records address the etiology of the Veteran's carpal tunnel syndrome or in any way suggest that it is related to his military service. Moreover, these records date the onset of the Veteran's carpal tunnel syndrome to the 1990s, which is approximately two decades after service. A hepatitis risk factor questionnaire in the Veteran's prison records reflect that he reported risk factors of intravenous drug use for many years, nasal cocaine use for many years, blood exposure (no additional information was given), tattoos he got many years after service, and sexual promiscuity. He also reported a long history of alcohol use including beer, whiskey, and wine. Subsequent prison treatment records continued to reflect that the Veteran has hepatitis C and that he received medical treatment for hepatitis C. There is no mention of a pinched nerve in the knee, leg, or elsewhere in the Veteran's prison treatment records. The Veteran submitted a paper, dated as of September 2007, showing that in prison he received a lower bunk restriction which he claimed was due to carpal tunnel syndrome and a pinched nerve in his knee. In April 2008 the Veteran reported that he started using drugs in the Air Force while stationed in Korea. In the 1980s and 1990s he received substance abuse treatment including through work at a federal facility between 1985 and 1992. In June 2008 the Veteran reiterated that he received substance abuse treatment at this time and additionally stated that he received private treatment for carpal tunnel syndrome sometime between 1992 and 1994. He reported that he was scheduled for surgery to treat his carpal tunnel syndrome but did not actually have the surgery. The Board notes that the RO did try to obtain records from these facilities, but their attempts were unsuccessful in that the private hospital reported there were no records pertaining to the Veteran and records also were not received from the Veteran's previous employer. In October 2008 the Veteran again reported sources of private treatment for substance abuse in the 1970s, but as previously noted these records could not be obtained. In April 2009 the Veteran reiterated his belief that typing while he was in the service caused his carpal tunnel syndrome, and that a news article indicated that there was no way to determine how long someone had hepatitis C. He again reiterated that he was treated for substance abuse at several private facilities. The Board notes that the RO previously informed the Veteran that records from these facilities were unavailable. In July 2009 the Veteran reiterated that he started using illegal substances while he was in the service and became polysubstance dependent. In September 2009 the Veteran identified the same private treatment providers, although he had already been informed that records from these providers could not be obtained. He also again stated that he was the subject of a criminal investigation while he was in the Air Force. The Veteran submitted some articles about hepatitis C. One article noted that Veterans have a higher rate of infection than the general population, with Vietnam Veterans being the most likely to be infected. The article did not address the etiology of hepatitis C in any particular Veteran and did not address the Veteran's risk factors and health history. Another article addressed a situation where diabetes patients at an Army medical facility contracted hepatitis C from contaminated insulin injections. The article stated that there was no test that could show how long hepatitis C was in a person's system. This article does not pertain to the Veteran in any way as there is no showing or allegation that he received contaminated insulin from the hospital in question. The Veteran also submitted an article showing that hepatitis C may cause liver damage and another article about deaths from medication to treat hepatitis. These articles do not address the etiology of the Veteran's hepatitis C 38 U.S.C.A. § ; 38 C.F.R. § or otherwise pertain to his service connection claim in any way. On his VA Form 9 dated in December 2009 the Veteran wrote that he believed his carpal tunnel syndrome occurred because he had to type on manual typewriters in service. He claimed that it was not diagnosed at the time because it was not well known. However, it is notable that the Veteran never identified any symptoms pertaining to his wrists or hands, and there is no evidence of this diagnosis until the 1990s. He felt that his hepatitis C came from vaccinations. The Veteran reported that he thought he got a pinched nerve in his knee and leg during basic training. Again it is noted that this problem is not mentioned anywhere in the Veteran's service treatment records during his entire period of service and, additionally, is not mentioned in treatment records after service. The Veteran again stated that he was the subject of criminal investigations due to his illegal use of narcotics while he was in the military. In May 2010 the Veteran again identified the same treatment providers, for which he had already been informed VA was unable to retrieve the records. He was later notified that VA was unable to obtain his records from a former employer. He felt that there was evidence of his substance abuse in his military records. He stated that he wished to "concede" the pinched nerve and "make it a service disconnected claim." The intention of the latter statement is unclear since there is no such thing as a "service disconnected claim" and the Veteran was already advised he was ineligible for non-service connected pension benefits because he was incarcerated. In another written statement he repeated his claims that carpal tunnel syndrome developed while he was in the Air Force, that he believed he got hepatitis C from vaccinations, and that he was the subject of criminal investigations while he was in the military. The Veteran submitted an article in which the author related that he believed that Vietnam Veterans should not be held responsible for their drug related criminal activities. Again, this is not pertinent to the Veteran's claims in any way. The Veteran was afforded a VA examination with respect to his hepatitis C in September 2011. The examiner noted that the Veteran had several high risk factors for hepatitis C including drug use before and after service and sexual promiscuity with numerous episodes of venereal disease. He had no gastrointestinal or systemic symptoms. He was well nourished, energetic, and his weight was stable. There were no incapacitating episodes of hepatitis C. The examiner noted that the Veteran's service treatment records showed no evidence of liver disease clinically or by lab. The first evidence of slightly abnormal AST but not hepatitis B or C was when the Veteran was admitted for alcohol detoxification in April 1987. Clinically, his AST was in the mid-40s, ALT was normal. He was first diagnosed with hepatitis C in 1996 and received one year of treatment while in prison in 2008. The examiner determined that it was less likely than not that the Veteran's hepatitis C was due to a disease or injury in service. During the admission for alcohol detoxification and drug abuse in April 1984 the AST was slightly elevated and ALT was normal. Viral hepatitis elevated ALT mainly. Alcohol toxicity elevated AST mainly. When the Veteran was first treated for hepatitis C in 2008 the chemistry showed considerable elevation of both ALT and AST. The Veteran essentially reiterated his prior contentions in a letter dated in November 2011. However, he also stated that he used drugs and patronized prostitutes in service and suggested that these activities may have caused his hepatitis C. A. Carpal tunnel The evidence does not show that it is at least as likely as not that the Veteran has carpal tunnel syndrome related to service. While medical records beginning in the mid-1990s show a diagnosis of carpal tunnel syndrome, nowhere is it related to anything that occurred during the Veteran's military service, including typing. The Veteran stated that he believed that he had this problem since service, but he has not identified any symptoms or effects of this disorder that existed since the time of his service. In fact, he has not even identified any current symptoms other than restrictions on lifting and repetitive use of the hands in prison. The first mention of carpal tunnel syndrome in his medical records is around 1996, with a note that he underwent a nerve conduction study four years previously. In his prison records from 2005-2007 the Veteran dated his carpal tunnel syndrome to 10 or 15 years earlier, which is consistent with the mid-1990s, when this condition was first diagnosed. It is not consistent with the Veteran's current assertion that this condition existed since his service. No medical professional has opined or even suggested that there is any relationship between the Veteran's carpal tunnel syndrome and his service. While the Veteran asserts that this condition was caused by typing and repetitive use of his hands in service, he lacks the specialized medical expertise that is necessary in order to explain the etiology of a neurological condition that developed many years after service. The Veteran is not competent to offer a medical opinion about the cause of carpal tunnel syndrome that was diagnosed approximately 20 years after his service. While service connection for carpal tunnel syndrome may also be established based on evidence of continuity of symptoms, no such evidence exists in this case. As previously stated, the Veteran has never identified any symptom of carpal tunnel syndrome that he had since service or at any time and has not presented any continuity of symptoms since service. There is also no evidence that carpal tunnel syndrome was present within a year of his service. B. Pinched nerve The evidence does not show that it is at least as likely as not that the Veteran has a pinched nerve related to his military service. While the Veteran claims that this condition resulted from exercise during basic training, his service treatment records do not contain any reference to a pinched nerve or any other knee or leg condition. The lower extremities were normal upon examination prior to his separation in September 1973. The Veteran never identified any symptoms related to a pinched nerve in service. He never set forth any circumstances surrounding any alleged injury and never explained why he believes that exercise caused a pinched nerve. Furthermore, the Veteran's post service treatment records do not reflect any diagnosis of a pinched nerve in either knee or leg. While the Veteran is competent to report that he has knee and leg pain or that he was told by a physician that he has a pinched nerve, he has not made either allegation. Rather, he makes the conclusory statement that he has a pinched nerve with no explanation of symptoms or of why he believes he has a pinched nerve. There is no evidence that a pinched nerve in the leg is related to service and, additionally, there is no competent evidence that this condition exists. While the Veteran claims that he has a pinched nerve, this is not a condition capable of lay observation as it is a neurological condition and, as noted, the Veteran has never identified any symptoms that could be related to a pinched nerve or provided any continuity of symptoms since service. There is also no evidence that this problem onset within one year of service. C. Substance abuse/addiction Primary substance abuse, including addiction, is considered willful misconduct and is not subject to service connection. Service connection for primary substance abuse/addiction is prohibited by law. 38 U.S.C.A. § 105; 38 C.F.R. 3.301(d). While the Veteran adamantly asserts that he began using illegal substances in service, and that he was the subject of various criminal investigations as a result of this use, this is not material to his claim. Primary substance abuse may not be service connected whether it started in service or after service. While service connection for substance abuse may be granted on a secondary basis, Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001), in this case the Veteran is not service connected for any disabilities so substance abuse cannot be caused or aggravated by a service connected disability. Moreover, the Veteran has not contended that any other medical condition caused or contributed to his substance abuse. D. Hepatitis C It is not at least as likely as not that the Veteran's hepatitis C is related to his military service. While the Veteran contends that he contracted hepatitis C as a result of inoculations in service, it is noted that the Veteran has numerous other post-service risk factors for the development of hepatitis C including intravenous drug use, nasal cocaine use, alcohol use, and tattoos. There is no evidence that any medical professional has ever associated the Veteran's hepatitis with vaccinations that he received in service. While the Veteran later also claimed that he frequented prostitutes and did drugs in service, the Board notes that any disease that results from the primary abuse of illegal substances is not subject to service connection. Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). While sexual promiscuity is a risk factor for hepatitis C, no medical professional has indicated that hepatitis C was sexually transmitted in the case of this Veteran and as noted he has many other risk factors. The Veteran was afforded a VA examination in September 2011 and the examiner concluded that, based on the Veteran's history, labs, and clinical presentation, hepatitis C was less likely than not incurred in service. The examiner noted that lab work did not show evidence of hepatitis C or any other liver condition until much later. Results of labs from the mid-1980s, which is well after service, were consistent with alcohol toxicity but not hepatitis. Hepatitis was not diagnosed until 1996, which is many years after service. While the Veteran pointed out that symptoms of hepatitis C may have a delayed onset, the examiners opinion was not based on current symptoms but primarily on lab values. The Veteran was essentially asymptomatic at the time of the examination. There is no medical evidence that the Veteran's hepatitis C is related to a disease or injury in service. While the Veteran asserts that his hepatitis C was caused by the vaccination process, he lacks the medical expertise that is necessary to explain the etiology of hepatitis C, especially in light of his numerous risk factors. Although he engaged in risky behaviors in service as well as after service, there is no evidence that the in service conduct, as opposed to the post-service conduct, caused hepatitis C. Additionally, as previously noted even if hepatitis C developed as the result of intravenous drug use, intranasal cocaine use, or alcohol abuse in service, it would not be subject to service connection as this is prohibited by law. In any event, the VA examiner opined that the Veteran did not develop hepatitis C until well after service and there is no countervailing medical opinion. ORDER Service connection for carpal tunnel syndrome is denied. Service connection for a pinched nerve in the leg is denied. Service connection for polysubstance abuse/addiction is denied. Service connection for hepatitis C is denied. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs