Citation Nr: 0718046 Decision Date: 06/15/07 Archive Date: 06/26/07 DOCKET NO. 04-44 371 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for hepatitis C. 2. Entitlement to service connection for a head injury. 3. Entitlement to compensation under 38 U.S.C.A. § 1151 for a heart condition. 4. Entitlement to compensation under 38 U.S.C.A. § 1151 for a kidney condition. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD Andrew Mack, Associate Counsel INTRODUCTION The veteran served on active duty from July 1971 to October 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York that denied the veteran's claims of entitlement to service connection for Hepatitis C and a head injury. The RO furthermore indicated in the rating decision that service connection for heart and kidney conditions could not be established either directly or as secondary to Hepatitis C. The veteran perfected a timely appeal of these determinations to the Board. The issues of entitlement to service connection for a head injury, entitlement to compensation under 38 U.S.C.A. § 1151 for a heart condition, and entitlement to compensation under 38 U.S.C.A. § 1151 for a kidney condition are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Hepatitis C is not related to the veteran's period of service. CONCLUSION OF LAW Hepatitis C was not incurred or aggravated in service. 38 U.S.C.A. §§ 105, 1110, 1151, 5107 (West 2002); 38 C.F.R. §§ 3.1(m), 3.301, 3.303, 3.358, 3.800 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and implemented at 38 C.F.R. § 3.159 (2006), amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. First, VA has a duty under the VCAA to notify a claimant and any designated representative of the information and evidence needed to substantiate a claim. In this regard, a June 2003 letter to the veteran from the Agency of Original Jurisdiction (AOJ) specifically notified him of the substance of the VCAA, including the type of evidence necessary to establish entitlement to service connection, and the division of responsibility between the veteran and VA for obtaining that evidence. Consistent with 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2006), this letter essentially satisfied the notification requirements of the VCAA by: (1) informing the veteran about the information and evidence not of record that was necessary to substantiate his claim; (2) informing the veteran about the information and evidence VA would seek to provide; (3) informing the veteran about the information and evidence he was expected to provide; and (4) requesting that the veteran provide any information or evidence in his possession that pertained to his risk factors for Hepatitis C, that he tell VA about any additional information or evidence that the veteran wanted VA to obtain, and that he send VA necessary evidence as soon as possible. Also, during the pendency of this appeal, the Court issued a decision in the consolidated appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements apply to all five elements of a service connection claim, including the disability rating and effective date of the award. The veteran was provided this notice in March 2006, and his claim was readjudicated in November 2006. As such, any notice deficiencies related to the rating or effective date were subsequently remedied. Thus, the Board finds no prejudice to the veteran in processing the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996). Second, VA has a duty under the VCAA to assist a claimant in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002). In this regard, the veteran's service medical records, post service private medical treatment records, VA medical records, the veteran's testimony at his January 2006 RO hearing, and written statements from the veteran and his representative are associated with the claims file. There is no indication that there is any additional relevant evidence to be obtained by either VA or the veteran. The Board therefore determines that VA has made reasonable efforts to assist the veteran in obtaining evidence necessary to substantiate his claim. II. Service Connection The veteran argues that he is entitled to service connection for hepatitis C. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. 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 disease was incurred in service. 38 C.F.R. § 3.303(d). In determining whether service connection is warranted for a disability, 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 the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A disability that is a result of the person's own willful misconduct or abuse of alcohol or drugs is not compensable. 38 U.S.C.A. § 1110. An injury or disease incurred during active service is not 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; 38 C.F.R. §§ 3.1(m), 3.301(d). The qualifying disability or death must not be the result of the claimant's willful misconduct. 38 U.S.C.A. § 1151; 38 C.F.R. §§ 3.358, 3.800. "Willful misconduct" is an act involving conscious wrongdoing or known prohibited action. Willful misconduct involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. Mere technical violation of police regulations or ordinances does not per se constitute willful misconduct. Willful misconduct is not determinative unless it is the proximate cause of injury, disease or death. 38 C.F.R. § 3.1(n). 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. See 38 C.F.R. § 3.301 (d); see also 38 U.S.C.A. § 105(a). 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. Organic diseases and disabilities which are a secondary result of the chronic use of drugs and infections coinciding with the injection of drugs will not be considered of willful misconduct origin. Where drugs are used for therapeutic purposes or where use of drugs or addiction thereto, results from a service-connected disability, it will not be considered of misconduct origin. 38 C.F.R. § 3.301(c)(3). In the instant case, the veteran's service medical records are negative for any indication of hepatitis C, or any liver problems. On separation examination in July 1974, no liver abnormality was noted, the veteran was noted to have a normal abdomen and viscera examination, and the veteran indicated on report of medical history that he did not have and had never had stomach, liver, or intestinal trouble, and that he did not have and had never had jaundice or hepatitis. The veteran's July 1974 separation examination indicates, however, that the veteran was an abuser of opiates. The veteran's service records also indicate that the veteran was using heroin in service. Private medical records dated from January 2003 to May 2003 and from February 2004 to September 2005, as well as VA medical treatment records dated from March 2001 to August 2004, reflect that the veteran currently receives treatment for hepatitis C. Private medical treatment records dated in January 2003 note that the veteran was first diagnosed with hepatitis C in October of 2001. They furthermore note that in 1987 the veteran had an accident involving a piece of metal in his liver, which was taken out. VA medical records indicate a diagnosis of hepatitis C as early as July 2001, and, on August 2006 VA examination report of medical history, it was noted that hepatitis C was diagnosed in 1998. The medical evidence is negative for any indication, in the form of a medical opinion or otherwise, that the veteran's hepatitis C is etiologically related to his period of service. After a review of the record, the Board finds a preponderance of the evidence to be against the veteran's claim of service connection for hepatitis C. The veteran's service medical records are completely negative for any indication of hepatitis C or a liver condition. Also, the earliest diagnosis or indication of hepatitis C was over 20 years after the veteran's separation from service. Furthermore, there is no medical opinion or other competent medical evidence of record suggesting any relationship between the veteran's current hepatitis C condition and his period of service. In short, the record is negative for any indication that the veteran's hepatitis C is related to his period of service. To the extent that the veteran's use of heroin in service indicates that hepatitis C may have been incurred through in- service drug use, the Board notes that such drug usage would be considered willful misconduct, and would thus preclude service connection on that basis. Accordingly, service connection for hepatitis C is not warranted. Although the veteran may believe that he currently suffers a disability related to his period of service, he is not competent to provide opinions that require medical knowledge. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). In reaching these determinations, the Board has considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the veteran's claim, the doctrine is not applicable. ORDER Entitlement to service connection for hepatitis C is denied. REMAND For the following reasons, the issues of entitlement to service connection for a head injury and entitlement to compensation under 38 U.S.C.A. § 1151 for a heart condition and kidney condition must be remanded. First, the Board notes that in its March 2004 rating decision, the RO denied the veteran's claim for head injury in part because there was no evidence showing the presence of the veteran's claimed current disability. Subsequent to the RO's November 2006 Supplemental Statement of the Case, the RO received additional evidence pertinent to the veteran's head injury claim in the form of an August 2006 VA examination diagnosing the veteran with anxiety, which is the disability the veteran claimed as a residual of his in-service head injury. The evidence was not accompanied by the veteran's waiver of initial RO review, and the RO did not readjudicate the veteran's claim prior to certifying the appeal to the Board in April 2007. Therefore, this matter must be remanded for RO readjudication of the veteran's claim for head injury. See generally, 38 C.F.R. § 20.1304; Disabled American Veterans v. Principi, 327 F.3d 1339 (Fed. Cir. 2003). Second, with respect to the veteran's 38 U.S.C.A. § 1151 claims, the Board notes that, in his May 2003 claim, the veteran asserted that Dr. P. diagnosed the veteran's heart and kidney problems as arising from "over medication" for hepatitis C treatments, that VA attempted to obtain treatment records from Dr. P., but that a July 2003 note indicates that there were no reports or notes available from Dr. P.. However, an April 2006 note from the veteran's private physician, Dr. G., indicates that the drugs that the veteran was receiving from VA for his hepatitis C could suppress the immune system, allowing the veteran to contract the bacterial infection and sepsis that caused his heart and kidney problems. Furthermore, on August 2006 VA examination, the veteran was diagnosed as having ischemic coronary artery disease and chronic renal insufficiency due to multiple organ failure from drug interaction to interferon treatment. The August 2006 VA examiner opined that it was at least as likely as not that the veteran had a reaction to the interferon injection, that after the second interferon injection the veteran developed hypothermia, sepsis, acute respiratory distress syndrome, with respiratory failure and multiorgan failure, and eventually renal failure and myocardial infarction, and that it was at least as likely at it was not that acute renal failure and myocardial infarction were secondary to the same drug reaction to interferon. However, while expressing that the veteran's treatment at a VA facility was likely the cause of the veteran's heart and kidney problems, the VA examiner did not express an opinion as to whether the proximate cause of the veteran's heart and kidney problems was carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of the VA in furnishing hospital care, medical or surgical treatment, or examination. See 38 U.S.C.A. § 1151(a)(1). Thus, although a causal relationship between VA treatment and the veteran's claimed disabilities has been shown in the medical evidence, a determination must be made by a medical expert as to fault on the part of the VA in providing the veteran's hepatitis C treatment, and as to whether the veteran's heart and kidney problems resulting from such treatment were reasonably foreseeable events. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should arrange for the veteran's claims folder to be reviewed by the examiner who prepared the August 2006 VA genitourinary examination report (or a suitable substitute if that examiner is unavailable), and request that he or she prepare an addendum addressing the existence of any fault on the part of VA in providing treatment that likely led to the veteran's heart and kidney problems. The veteran's claims file, which is to include a copy of this Remand, must be made available to and reviewed by the examiner, and the examiner should specifically indicate in the examination report that the claims file has been reviewed. Based on his or her review of the case, the examiner should provide an opinion as to whether the proximate cause of the veteran's heart and kidney problems was either (1) carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of the VA in furnishing hospital care, medical or surgical treatment, or examination, or (2) an event not reasonably foreseeable. The examiner should specifically make a finding as to whether or not VA failed to exercise the degree of care that would be expected of a reasonable health care provider. The veteran need not be re- examined unless an examination is deemed necessary. The examiner should set forth the complete rationale for all opinions expressed and conclusions reached. 2. After undertaking any additional development deemed appropriate, the RO should review the entire evidentiary record and readjudicate the issues on appeal. If any remaining benefit sought is not granted to the veteran's satisfaction, the RO should issue an appropriate supplemental statement of the case. The requisite period of time for a response should be afforded. Thereafter, the case should be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2006). ______________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs