Citation Nr: 1303696	
Decision Date: 02/04/13    Archive Date: 02/08/13

DOCKET NO.  09-14 339	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE

Entitlement to service connection for hepatitis C.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

John Kitlas, Counsel


INTRODUCTION

The Veteran served on active duty from December 1971 to January 1975.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which denied the claim.

The Board notes that the Veteran mentioned experiencing depression in service in a June 2010 statement addressing his appeal for service connection for hepatitis C.  If he wants to file a claim for service connection for depression, he should do so with specificity at the RO.


FINDING OF FACT

Hepatitis C was first diagnosed years after his separation from service, and nothing in the record suggests it is etiologically linked to any incident of service other than the Veteran's intravenous drug use.


CONCLUSION OF LAW

Requirements for establishing service connection for hepatitis C have not been met.  38 U.S.C.A. §§ 105, 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.301, 3.303 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim.  VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012).

The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain.  38 C.F.R. § 3.159(b) (2012).  The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO).  Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004).  However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant.  Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule).

In this case the Veteran was sent pre-adjudication notice via a letter dated in November 2007.  The letter informed the Veteran of what was necessary to substantiate his current appellate claim, what information and evidence he must submit, and what information and evidence will be obtained by VA.  As such, this correspondence fully complied with the notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b).  Moreover, the November 2007 letter included the information regarding disability rating(s) and effective date(s) as mandated by the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006).

All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims.  Once this has been accomplished, all due process concerns have been satisfied.  See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error).  In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claim and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence.  Accordingly, there is no further duty to notify.  In any event, the Veteran has not demonstrated any prejudice with regard to the content or timing of any notice.  See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination).

In addition, the Board finds that the duty to assist a claimant in the development of his or her case has been satisfied.  The Veteran's service treatment records are on file, as are various post-service medical records.  Further, the Veteran has had the opportunity to present evidence and argument in support of his claim, and indicated that no hearing was desired in conjunction with this case.  As noted in a July 2008 memorandum, the RO made a formal finding that treatment records from the Durham VA Medical Center (VAMC) for the period dated from January 1, 1996, to February 5, 1998, were unavailable for review.  The Veteran was notified of such in April 2009.  Nothing indicates the Veteran has identified the existence of any other relevant evidence that has not been obtained or requested.  For example, he has not identified any outstanding evidence which relates the etiology of his current hepatitis C to service other than his own willful misconduct.  Moreover, as there is no competent evidence suggesting the Veteran's hepatitis C is related to service for reasons other than illegal substance abuse, the Board concludes that no VA examination is warranted based on the facts of this case.  Consequently, the Board finds that the duty to assist the Veteran has been satisfied in this case.


Analysis

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned.  38 C.F.R. § 3.303(b).  Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).

Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury.  See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999).  

The Board notes that it has thoroughly reviewed the record in conjunction with this case.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (The Board must review the entire record, but does not have to discuss each piece of evidence).  Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims.  See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant).  

The Board notes that the Veteran's service treatment records contain no findings of hepatitis C while on active duty, to include his December 1974 expiration of term of service examination, although the Board acknowledges that there was no test available to detect the presence of hepatitis C at that time.  Regardless, the first competent medical evidence of record showing a diagnosis of hepatitis C is dated decades after his separation from service.  The Veteran does not contend that he was diagnosed with or treated for hepatitis C in service.  Rather, he reports his hepatitis C is due to his intravenous drug use during service.  Indeed, the only specific in-service risk factor the Veteran has identified as being the cause of his hepatitis C is intravenous drug use, as detailed on his application for compensation and in a June 2010 statement.

For all claims which were filed after October 31, 1990, such as this one, direct service connection may be granted only when a disability was incurred or aggravated in the line of duty, and it was not the result of the Veteran's own willful misconduct or the result of the Veteran's abuse of alcohol or drugs.  38 U.S.C.A. 
§ 105; 38 C.F.R. § 3.301(a). 

VA regulations define willful misconduct as an act involving conscious wrongdoing or known prohibited action.  38 C.F.R. § 3.1(n).  Further, willful misconduct involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of probable consequences.  A mere technical violation of police regulations or ordinances will not per se constitute willful misconduct.  Id.  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.  38 C.F.R. § 3.301(c)(3).  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.  Id.  Willful misconduct is not determinative unless it is the proximate cause of injury, disease, or death.

The Board notes the Veteran is competent to testify that he used intravenous drugs in service, as he is attesting to matters capable of lay observation and of which he has direct knowledge.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  This is the only risk factor the Veteran alleges for his hepatitis C.  

In view of the fact the Veteran has only identified intravenous drug use as an in-service risk factor for his hepatitis C, his claim must be denied as such action constitutes willful misconduct and prohibits payment of VA benefits for disabilities resulting from such willful misconduct.  As no competent evidence suggests that the Veteran's hepatitis C is related to service for reasons other than illegal substance abuse, the preponderance of the evidence is against the claim and the benefit sought on appeal must be denied.

In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal.  See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).


ORDER

Entitlement to service connection for hepatitis C is denied.



____________________________________________
K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs