Citation Nr: 1327845	
Decision Date: 08/30/13    Archive Date: 09/05/13

DOCKET NO.  12-34 007	)	DATE
	)
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On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota



THE ISSUE

Entitlement to service connection for alcoholism.



ATTORNEY FOR THE BOARD

Brian E. Flannery, Associate Counsel



INTRODUCTION

The Veteran served on active duty from March 1985 to March 1989.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St Paul, Minnesota, which denied the benefits sought on appeal.
FINDINGS OF FACT

1.  The Veteran filed a service connection claim for alcoholism in October 2011, which was after the passage of congressional legislation prohibiting any grant of direct service connection for alcohol and drug abuse (based on claims filed on or after October 31, 1990).

2.  Service connection has not been established for any disabilities to which the Veteran's alcoholism could be related.



CONCLUSION OF LAW

Alcoholism was not incurred in active service and is not proximately due to or the result of any service-connected disability. 38 U.S.C.A. §§ 105, 1131 (West 2002); 38 C.F.R. §§ 3.1, 3.102, 3.159, 3.301, 3.303, 3.310 (2012).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A (West 2002); 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it 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; (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). 

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a)  and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.

In this case, the RO did provide the appellant with notice in November 2011 in connection with his claim for service connection for alcoholism, which was prior to the initial decision on the claim in March 2012.  Therefore, the timing requirement of the notice as set forth in Pelegrini has been met and to decide the appeal would not be prejudicial to the claimant.

Moreover, the requirements with respect to the content of the notice were met in this case.  The RO informed the Veteran in the notice letter about the information and evidence that is necessary to substantiate his claim for service connection on both a direct and secondary basis.  The letter also notified him of the division of responsibilities in obtaining such evidence and explained how disability ratings and effective dates are determined.

In addition, the duty to assist the Veteran has also been satisfied in this case.  The Veteran's service treatment records as well as all identified and available post-service medical records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's claim.  The Veteran has not identified any pertinent treatment records aside from those that are already of record.  Thus, the Board concludes that VA has made every reasonable effort to obtain all identified records relevant to the Veteran's claim.  

The Board does acknowledge that the Veteran has not been afforded a VA examination in connection with his claim for service connection for alcoholism. Under the law, an examination or medical opinion is considered necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability; (2) establishes that the veteran suffered an event, injury, or disease in service; and, (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service- connected disability. 38 C.F.R. § 3.159(c)(4). 

In the case of McLendon v. Nicholson, 20 Vet. App. 79  (2006), the United States Court of Appeals for Veterans Claims (Court) held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. 

Nevertheless, in this case, a VA examination is unnecessary to decide the claim for service connection for alcoholism because such an examination would not provide any more pertinent information than is already associated with the claims file.  As will be explained below, direct service connection for alcoholism is prohibited as a matter of law, and there are no service-connected disabilities that could have caused or aggravated the Veteran's alcoholism.  Thus, a VA examination would not serve any useful purpose in this case. 

Significantly, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained.  Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claims.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384  (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Having thus established that VA has satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §5103(a), § 5103A , or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced as a result of the adjudication of his claims.  



Law and Analysis

The Veteran claims that he developed his current alcoholism while bartending in service.  Specifically, he has asserted that he was stationed in Honduras, assigned duties as a bartender in the base bar, and was exposed to a foreign culture and stressful environment, which caused his alcoholism.  

Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131.  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b).  Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d).

Direct service connection may be granted only when a disability was incurred or aggravated in line of duty and was not the result of the veteran's own willful misconduct. 38 C.F.R. § 3.301.  Willful misconduct is defined as an act involving conscious wrongdoing or known prohibited action.  It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences.  A mere technical violation of police regulations or ordinances will not per se constitute willful misconduct.  38 C.F.R. § 3.1(n).

The simple drinking of an alcoholic beverage is not of itself willful misconduct.  The deliberate drinking of a known poisonous substance or under conditions which would raise a presumption to that effect will be considered willful misconduct.  If, in the drinking of a beverage to enjoy its intoxicating effects, intoxication results proximately and immediately in disability or death, the disability or death will be considered the result of the person's willful misconduct.  Organic diseases and disabilities that are a secondary result of the chronic use of alcohol as a beverage, whether out of compulsion or otherwise, will not be considered of willful misconduct origin.  38 C.F.R. § 3.301(c)(2).

"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.  38 C.F.R. § 3.301(d) (2005); see also VAOPGCPREC 7-99 (June 9, 1999).

Section 8052 of the Omnibus Budget Reconciliation Act (OBRA) of 1990, Pub. L. No. 101-508, § 8052, 104 Stat. 1388, 1388- 91, prohibits, effective for claims filed after October 31, 1990, payment of compensation for a disability that is a result of a veteran's own alcohol or drug abuse.  Moreover, Section 8052 also amended 38 U.S.C.A. § 105(a) to provide that, with respect to claims filed after October 31, 1990, an injury or disease incurred during active service will not be deemed to have been incurred in line of duty if the injury or disease 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 above-cited legislation enacted by Congress expressly prohibits the grant of direct service connection for alcohol or drug abuse based on claims filed on or after October 31, 1990, and requires that disability resulting from drug or alcohol abuse be regarded as the products of willful misconduct.  Thus, as to direct service connection, the Veteran's claim filed in October 2011 must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. at 429 (1991).

The Board also notes that the Veteran indicated in his March 2012 notice of disagreement that his "alcoholism is secondary."  Therefore, the Board has considered whether the Veteran's alcoholism is proximately due to, the result of, or aggravated by any service-connected disability.   See Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) (in direct appeals, all filings must be read in a liberal manner); EF v. Derwinski, 1 Vet. App. 324, 326 (1991) (Board must review all issues reasonably raised from a liberal reading of all documents in the record).    

The United States Court of Appeals for the Federal Circuit has held that there can be service connection for compensation for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, service-connected disability.  Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001).  The Federal Circuit indicated, however, that veterans could recover only if they can 'adequately establish that their alcohol or drug abuse disability is secondary to or is caused by their primary service-connected disorder.'  Id. at 1381.

Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a).  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).  

The Board notes that the most basic requirement of any secondary service connection claim is the existence of a service-connected disability.  In this case, service connection has not been established for any disability; therefore, there is no service-connected disability to which the Veteran's alcoholism could be related. Thus, service connection cannot be granted on a secondary basis.  

Based on the foregoing, there is no legal basis for the Veteran's claim.  Accordingly, the Board concludes that service connection is not warranted for alcoholism.




ORDER

Service connection for alcoholism is denied.



____________________________________________
JESSICA J. WILLS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs