Citation Nr: 0705379 Decision Date: 02/23/07 Archive Date: 02/27/07 DOCKET NO. 02-13 833 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD L. Crohe, Associate Counsel INTRODUCTION The appellant is a veteran who served on active duty from July 1973 to October 1974. This case is before the Board of Veterans' Appeals (Board) on appeal from a June 2002 rating decision by the Houston Regional Office (RO) of the Department of Veterans Affairs (VA). On his August 2003 Form 9, the veteran requested a hearing before a Decision Review Officer (DRO). In November 2002, the veteran failed to report for his scheduled DRO hearing. In September 2003 and August 2005, the Board remanded the claim for further development. FINDINGS OF FACT The evidence of record reveals that the veteran's hepatitis C is attributable to his intravenous drug use during service. CONCLUSION OF LAW Service connection for hepatitis C is not warranted. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002 & Supp. 2005); 38 C.F.R. § 3.303 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Preliminary Matters The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his or her possession that pertains to the claim. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The veteran was advised of VA's duties to notify and assist in the development of the claim. April 2002 (prior to the rating decision), September 2002, June 2003, June 2004, July 2005, September 2005, and March 2006 letters advised him of the evidence necessary to substantiate his claim. The June 2002 rating decision, an August 2002 statement of the case (SOC), and the November 2002, March 2003, November 2004, and November 2005 supplemental SOC's, provided the text of applicable regulations and explained what the evidence showed and why the claim was denied. June 2004, July 2005, and September 2005 correspondence advised the veteran to submit any evidence in his possession that pertains to his claim. March 2006 correspondence provided notice regarding disability ratings and effective dates of awards. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). He is not prejudiced by any defect in notice (including in timing) as he has had full opportunity to supplement the record and participate in the adjudicatory process after notice was provided. Finally, it is not alleged that the notice in this case was less than adequate. The veteran's service medical records (SMR's) and post- service treatment records have been secured. The RO arranged for a VA medical examination in October 2005. He has not identified any pertinent evidence that remains outstanding. VA's duty to assist is also met. Accordingly, the Board will address the merits of the claim. II. Factual Background SMR's revealed that the veteran was treated for hepatitis in service. January to February 1974 hospital records noted that he was treated for viral hepatitis that was HAA (hepatitis-associated antigen) positive and that he had a history of drug abuse, including opiates within the past eight months. He also acknowledged previous use of intravenous (IV) drugs, but denied their use since being in Germany the past month. August 1974 discharge examination included a report of medical history that noted that the veteran was hospitalized for treatment for hepatitis. July 2002 to February 2003 treatment records from VA South Texas Health Care System showed a past medical history of hepatitis C virus. An August 2002 record noted an addiction to heroin and cocaine for the past 30 years. A February 2003 included a diagnosis of chronic hepatitis. On October 2005 VA examination report, it was noted that the c-file and the veteran's computerized medical records were reviewed. A past medical history included hospitalization from January to February 1974, while the veteran was in service for viral hepatitis that was HAA positive. At the time of admission, the veteran acknowledged previous use of IV drugs. During the VA examination, the veteran stated that he did use both IV heroin and snorted nasal drugs while in the active military service. He received blood transfusions twice, in 1976 following a car accident and in 1981 following a gun shot wound to the right leg. He denied any exposure of skin or mucous membrane to blood during active duty. He has never required hemodialysis. He has no tattoos or body piercing. He was first found to be hepatitis C antibody positive in 1988. Most recent laboratory data performed in March 2005 showed hepatitis A IgM negative, hepatitis B antigen negative, but hepatitis C antigen positive. Liver function tests in May 2005 were normal, including a normal SGOT of 25 and normal SGPT of 22. He has never received any specific treatment for the hepatitis C. The examiner noted that the veteran did give a history of IV drug use during active military service and IV drug use was also documented in his SMR's. The examiner added that this was the veteran's most compelling risk factor for hepatitis C. Therefore, it is at least as likely as not that the veteran's chronic hepatitis C is secondary to IV drug use documented during active military service. May 2005 to June 2005 treatment records from VA Central Texas Health Care System indicated that that the veteran has been doing heroin almost on a daily basis along with cocaine and shares needles with other people. A June 2005 record included a history that according to the veteran he "caught hepatitis C in 1974 ... was in the service." In reviewing risks for hepatitis C he listed: injection drug use (heroine and cocaine) starting in 1974, with last use about two months ago; other risks for infection listed were multiple blood transfusions in 1976 or 1977 and again in 1981, and occupational exposure to blood as a Certified Nurse Aide in 1990's. III. Criteria and Analysis Service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. 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 disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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. 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). Here, the record clearly shows that the veteran has a history of IV heroin use, which he has continuously reported that he engaged in while he was on active duty. On October 2005 VA examination, the VA examiner opined that it is at least as likely as not that the veteran's chronic hepatitis C is secondary to IV drug use documented while in active military service. There is no evidence to the contrary. The examiner noted other risk factors such as blood transfusions (that occurred post service), but indicated that the IV drug abuse was the veteran's most compelling risk factor for hepatitis C. Treatment records from VA Central Texas Health Care System also listed IV drug use starting in 1974 as a risk factor for hepatitis C. Other risk factors that were listed did not occur until post-service (i.e. blood transfusion, occupational exposure to blood) and were not shown to be related to service. The Board finds that there is a preponderance of the evidence against the veteran's claim. Abuse of drugs is not in the line of duty and is considered to be willful misconduct. The law precludes service connection for a disability that results from the person's willful misconduct or the abuse of alcohol or drugs. 38 U.S.C.A. § 1131. ORDER Service connection for hepatitis C is denied. ____________________________________________ V. L. JORDAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs