Citation Nr: 0707046 Decision Date: 03/09/07 Archive Date: 03/20/07 DOCKET NO. 05-20 357 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD P. Smith, Associate Counsel INTRODUCTION The veteran served on active duty from January 1971 to October 1973. This matter comes before the Board of Veterans' Appeals (Board) from a March 2005 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Jackson, Mississippi. FINDINGS OF FACT 1. The veteran was diagnosed and treated for viral hepatitis in 1973 while in service. 2. The veteran is currently diagnosed with hepatitis C. 3. A clear preponderance of the evidence is against a finding that hepatitis C is associated with service and not the result of misconduct etiology. CONCLUSION OF LAW Hepatitis C was not incurred in or aggravated during active service. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.301, 3.303, 3.306 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2006), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2006), provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. In addition, VA must also request that the claimant provide any evidence in the claimant's possession that pertains to the claim. In the present case, the veteran was provided with the notice required by the VCAA by letter in August 2004. The originating agency specifically informed the veteran of the evidence required to substantiate his claim, the information required from him to enable VA to obtain evidence on his behalf, the assistance that VA would provide to obtain evidence on his behalf, and that he should submit such evidence or provide VA with the information necessary for VA to obtain such evidence on his behalf. The veteran was specifically asked to submit any evidence in his possession that pertains to his claim. Therefore, the Board finds that he was provided with the notice required by the VCAA. All available evidence pertaining to the veteran's claim has been obtained. The claims folder contains, statements from the veteran, January 1986 Report of Operation Delta Medical Center, a DD214, Administrative Discharge Packet which includes a June 1973 separation examination and February 1973 to June 1973 urinalysis screening, military personnel records, a January 2005 VA Opinion, and VA treatment records for February 2004 to June 2005, December 2003 to September 2004, January 1986 to February 1986, and September 1986 to January 1987. The Board finds that VA has satisfied its duty to notify and assist. All obtainable evidence identified by the veteran relative to his claim has been obtained and associated with the claims folder, and no additional pertinent evidence would need to be obtained for a fair disposition of this appeal. The Board is unaware of any such evidence and is satisfied that VA has complied with its duty to assist the veteran in the development of the facts pertinent to this claim. In light of the Board's denial of the appellant's claim, no disability ratings or effective dates will be assigned, so there can be no possibility of any prejudice to the appellant under the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006). For the above reasons, it is not unfairly prejudicial to the appellant for the Board to proceed to finally decide the issue discussed in this decision. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Sutton v. Brown, 9 Vet. App. 553 (1996); Bernard v. Brown, 4 Vet. App. 384 (1993); see also 38 C.F.R. § 20.1102 (2006) (harmless error). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110 (West 2002). Service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2006). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The United States Court of Appeals for Veterans Claims (Court) has held that "where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required." Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case the claim is denied. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). However, direct service connection may be granted only when a disability was incurred or aggravated in the 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. 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, such disability will be considered the result of the veteran's willful misconduct. See 38 C.F.R. § 3.301 (2006). 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. 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 nonprescription drugs for a purpose other than the medically intended use, or the use of substances other than alcohol to enjoy their intoxicating effects. 38 U.S.C.A. §§ 105, 110, 1121, 1110, 1301, 1521(a) (West 2002); 38 C.F.R. § 3.301 (2006). The veteran has been given a diagnosis of hepatitis C; however, the earliest date of onset is unclear. VA treatment records indicate that he was diagnosed and receiving treatment in March 2004. The veteran contends that he acquired hepatitis C during his military service and points to a 1973 diagnosis and treatment for hepatitis during service in support of his assertion. The veteran's medical records do confirm that he was diagnosed and treated for viral hepatitis in service. During service, the veteran's discharge was recommended because of his drug abuse. The record indicates that he tested positive for morphine and barbiturates during service and that he continued to suffer years of addiction after service. The veteran's December 2003 VA treatment records noted the veteran's statement that his addiction problems had ended eight years earlier which would have been in 1995 approximately. In 1986, the veteran suffered a gunshot wound to his lower back which damaged his spinal cord. The evidence of record on this injury, which required surgery and subsequent medical care, does not show any diagnosis or treatment related to hepatitis, but it does indicate that the veteran received a blood transfusion after his June, 1986 surgery. The veteran was examined by a VA physician in January 2005. In his report, the physician noted the veteran's prior drug use as well as his post service blood transfusion. Although the exact type of hepatitis in 1973 was not documented, the VA physician concluded from all the evidence of record that "it is more likely than not that the etiology of the veteran's current hepatitis C was due to drug abuse or his blood transfusion in 1986." A VA physician recommended in May 2005 that additional records should be obtained to verify if, in fact, the veteran had hepatitis C during service. This was after the veteran showed him selective service medical records. However, the January 2005 VA physician reviewed all available service medical records prior to rendering an opinion. It could not be determined that hepatitis C had its onset in service. Moreover, the veteran's progressive and frequent use of drugs in service and post service is clearly documented in the record to such an extent that even if the veteran's hepatitis C had begun in service, service connection would be barred because drug abuse was a likely cause. 38 U.S.C.A. § 1110, 38 C.F.R. § 3.301. Accordingly, the veteran's disability, whether it was caused by a post service event or by his in service drug abuse, is not related to service. ORDER Entitlement to service connection for hepatitis C is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs