Citation Nr: 0718836 Decision Date: 06/22/07 Archive Date: 07/03/07 DOCKET NO. 05-07 094 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for hepatitis C. 2. Entitlement to service connection for human immunodeficiency virus (HIV). 3. Entitlement to service connection for a nervous disorder. 4. Entitlement to an initial compensable rating for bilateral hearing loss. 5. Entitlement to an initial compensable rating for otitis media. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Simone C. Krembs, Associate Counsel INTRODUCTION The veteran served on active duty from September 1971 to November 1974. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for bilateral hearing loss and otitis media, and denied service connection for hepatitis C, HIV, and a nervous disorder. The issues of entitlement to increased initial ratings for bilateral hearing loss and otitis media are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center in Washington, D.C. FINDINGS OF FACT 1. The veteran's hepatitis C first manifested many years after his separation from service. 2. The veteran acquired hepatitis C as a result of intravenous drug use. 3. The veteran's HIV first manifested many years after his separation from service. 4. The veteran acquired HIV as a result of intravenous drug use. 5. The veteran's intravenous drug use was a result of the veteran's own willful misconduct and was not a result of service-connected disabilities. 6. The veteran's nervous disorder first manifested many years after his separation from service and is unrelated to his period of active service or to any incident therein. CONCLUSIONS OF LAW 1. Service connection for hepatitis C is barred as a matter of law. 38 U.S.C.A. §§ 1131, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.159, 3.301, 3.303 (2006). 2. Service connection for HIV is barred as a matter of law. 38 U.S.C.A. §§ 1131, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.159, 3.301, 3.303 (2006). 3. The veteran's nervous disorder was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1131, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). See also Degmetich v. Brown, 104 F. 3d 1328 (1997); Cuevas v. Principi, 3 Vet. App. 542 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection for certain chronic diseases, including psychoses, will be rebuttably presumed if they are manifest to a compensable degree within one year following active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The veteran's major depressive disorder, anxiety, hepatitis C, and HIV, however, are not disorders or diseases subject to presumptive service connection. 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. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for a 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). A. Hepatitis C and HIV Service connection may be granted for disability due to a disease or injury that is incurred in or aggravated by active service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. No compensation shall be paid, however, if the disability was the result of the person's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C.A. § 1131. Alcohol abuse is 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 is 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 (2006). Alcohol abuse and drug abuse, unless they are a "secondary result" of an "organic disease or disability," are considered to be "willful misconduct." See 38 C.F.R. §§ 3.301(c)(2), 3.301(c)(3). 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). 38 U.S.C.A. § 105(a), as amended by section 8052(a) of the Omnibus Budget Reconciliation Act of 1990, prohibits a grant of "direct service connection" for drug or alcohol abuse on the basis of incurrence or aggravation in the line of duty during service. Pub. L. No. 101-508, § 8052, 104 Stat. 1388, 1388-351 (1990); VAOPGCPREC 2-98 (Feb. 10, 1998), 63 Fed. Reg. 31263 (1998). However, a veteran may be service connected for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, his or her service-connected disability. In order to qualify for service connection in this regard, the veteran must establish, by clear medical evidence, that his alcohol or drug abuse disability is secondary to or is caused by their primary service-connected disorder, and that it is not due to willful wrongdoing. Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). The veteran's service medical records are negative for a diagnosis of either hepatitis C or HIV. They do, however, demonstrate intravenous drug use. Additionally, although the initial records of diagnosis of hepatitis C and HIV are not contained in the claims file, the record reflects that the veteran was first diagnosed with hepatitis C and HIV in approximately 1994, after the veteran complained of a prolonged period of "flu-like" symptoms. He has received treatment for both viruses since that time. The veteran asserts that while he was not diagnosed with hepatitis C or HIV until 1994, both of these disorders were contracted as a result of intravenous drug use during service. The veteran additionally contends that his intravenous drug use was intended to dull the pain associated with otitis media, for which he was subsequently service-connected. Finally, he asserts that because his intravenous drug use was related to a disability for which he was later granted service connection, his intravenous drug use cannot be considered willful misconduct, and that he is therefore entitled to service connection for hepatitis C and HIV. In support of his claim, the veteran submitted a July 2003 letter from his private physician in which the physician stated that the veteran "most certainly contracted" hepatitis C and HIV as a result of intravenous drug use during service. This opinion, based upon an in-service history conceded by the veteran, is entitled to significant probative value. Therefore, the question before the Board is whether the veteran's intravenous drug use during service amounted to willful misconduct. The veteran contends that his intravenous drug use during service did not amount to willful misconduct because he resorted to intravenous drug use only as a result of intense pain in his ears related to protracted serous otitis media. Indeed, the veteran's service medical records demonstrate numerous entries related to ear pain and otitis media. Nevertheless, the Board is not persuaded by the veteran's argument. A veteran may be service connected for a disability resulting from drug abuse where that abuse is secondary to, or as a symptom of, a service-connected disability. Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). However, a disability with which a veteran is afflicted during service may be "service connected" no earlier than the day following his separation from service, provided that the claim is received within one year of the veteran's separation from service. See 38 U.S.C.A. § 5110(b)(1) (West 2002); 38 C.F.R. § 3.400(b) (2006). In this case, the veteran did not submit a claim for service connection of his otitis media until October 2003, many years after his separation from service in November 1974. For a claim received more than one year after separation from service, the effective date of service connection will be the date of the receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(b)(1) (West 2002); 38 C.F.R. § 3.400(b). Thus, in this case, the veteran's otitis media was service-connected effective October 14, 2003, the date his claim for service connection was received. Accordingly, the veteran's argument is unpersuasive because he was not service-connected for otitis media at the time his intravenous drug use began during service. As the veteran was not service-connected for otitis media at the time his intravenous drug use began, his intravenous drug use amounted to willful misconduct. As his intravenous drug use amounted to willful misconduct, service connection for any disability, including hepatitis C and HIV, which developed secondary to intravenous drug use must in this case be denied. The veteran's inservice intravenous drug use was willful misconduct. His post-service drug use was also willful misconduct and service connection for disability resulting therefrom is barred by law. Therefore, service connection cannot be granted for the resulting disabilities incurred due to inservice and post-service intravenous drug use. There is no competent medical evidence of record attributing the veteran's HIV and hepatitis C to any causation other than intravenous drug use. The Board has considered the veteran's assertions that his hepatitis C and HIV are related to his service, including as a result of intravenous drug use in service. However, as a layperson, the veteran is not competent to give a medical opinion on a diagnosis or etiology of a disorder. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu, supra. See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). In sum, the facts in this case preclude the granting of benefits for disabilities which result from the veteran's abuse of intravenous drugs, regardless of whether such abuse originated in service. Where application of the law to the facts is dispositive, the appeal must be terminated because there is no entitlement under the law to the benefit sought. See Sabonis v. Brown, 6 Vet. App. at 426, 430 (1994). B. Nervous Disorder The veteran asserts that he is entitled to service connection for a nervous disorder (anxiety and depression) he believes is related to the witnessing of two traumatic events in service. The first traumatic event involved witnessing the severing of a finger of a fellow serviceman, and the second of which involved the suicide of a fellow serviceman. The veteran's service medical records are negative for complaints or diagnoses of nervousness, anxiety, or depression. On examination in November 1974, prior to separation from service, the veteran denied a family history of psychosis, and denied current or past feelings of depression or excessive worry, or nervous trouble of any sort. Examination revealed no psychiatric abnormalities. As examination prior to separation from service did not reveal psychiatric abnormalities, the Board finds that chronicity in service is not established in this case. 38 C.F.R. § 3.303(b). As chronicity in service has not been established, a showing of continuity of symptoms after discharge is required to support the veteran's claim for service connection of his current nervous disorders. 38 C.F.R. § 3.303(b). The veteran stated that he first sought treatment for depression in approximately 1994. Records of such treatment, however, are unavailable. The first post-service clinical evidence of treatment for a nervous disorder is dated in September 2002. At that time, the veteran reported that while he had been functioning relatively well without an antidepressant, in the past year he had been having increasing difficulty with concentration, sleeping, and memory loss. He additionally reported stress related to health, family, and financial matters. No diagnosis was rendered at that time, although it appears that the veteran was prescribed an antidepressant. The next record of treatment related to psychiatric problems is dated in March 2003. At that time, the veteran reported depressive symptoms including anger, irritability, anhedonia, lack of motivation, decreased libido, fatigue, and insomnia. He additionally reported excessive fearfulness, nightmares, and being anxious. He related these symptoms to traumatic events that took place during service. The veteran was diagnosed with major depressive disorder with possibly psychotic features, anxiety, not otherwise specified, and a cognitive disorder, not otherwise specified. It was noted that the veteran did not meet the criteria for a diagnosis of PTSD. He was continued on an antidepressant. The examining physician did not opine as to whether the veteran's current diagnoses were related to his period of active service. Subsequent records show that the veteran has continued to receive periodic treatment for his major depression and anxiety. At no time has any treating physician related his major depression or anxiety to his period of active service. While the veteran alleges that he first received treatment for depression in 1994, there are no records which reflect treatment for psychiatric problems dated prior to September 2002, nearly 28 years after his separation from active service. In view of the lengthy period without evidence of treatment, there is no evidence of a continuity of treatment, and this weighs heavily against the claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Service connection may be granted when all the evidence establishes a medical nexus between military service and current complaints. Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). In this case, there is no clinical evidence of a chronic psychiatric disorder during the veteran's period of active service. As there is no evidence of a psychiatric problem during the veteran's service, the Board finds that a VA examination is not required in this case. Finally, there is no evidence establishing a medical nexus between military service and the veteran's current psychiatric diagnoses. Thus, service connection for a nervous disorder is not warranted. The Board has considered the veteran's assertions that his psychiatric problems are related to his period of active service. However, to the extent that the veteran relates his current problems to his service, his opinion is not probative. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992) (layperson is generally not competent to opine on matter requiring knowledge of medical principles). In sum, the weight of the credible evidence demonstrates that the veteran's psychiatric disorders first manifested many years after his period of active service and are not related to his active service or to any incident therein. As the preponderance of the evidence is against the veteran's claim for service connection for a nervous disorder, the "benefit of the doubt" rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist the Appellant Upon receipt of a complete or substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. This notice requires VA to indicate which portion of that information and evidence is to be provided by the claimant and which portion VA will attempt to obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. § 3.159 (2006). The notice 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; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim, or something to the effect that the claimant should "give us everything you've got pertaining to your claim(s)." Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the RO sent correspondence in August 2002, November 2002, and November 2005; a rating decision in December 2002; and a statement of the case in June 2004. These documents discussed specific evidence, the particular legal requirements applicable to the claims, the evidence considered, the pertinent laws and regulations, and the reasons for the decisions. VA made all efforts to notify and to assist the appellant with regard to the evidence obtained, the evidence needed, the responsibilities of the parties in obtaining the evidence, and the general notice of the need for any evidence in the appellant's possession. The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claims with an adjudication of the claims by the RO subsequent to receipt of the required notice. There has been no prejudice to the appellant, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically declining to address harmless error doctrine); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the final adjudication in the November 2005 supplemental statement of the case. In addition, all relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. ORDER Service connection for hepatitis C is denied. Service connection for HIV is denied. Service connection for a nervous disorder is denied. REMAND Additional development is needed prior to further disposition of the claims for an increased initial rating for bilateral hearing loss and otitis media. In a November 2005 rating decision, the RO granted noncompensable service connection for bilateral hearing loss and otitis media. In correspondence received in January 2006, the veteran disagreed with the ratings initially assigned for his bilateral hearing loss and otitis media. Specifically, the veteran stated that he was requesting compensable ratings for both disabilities. The Board construes this statement as a notice of disagreement as to the ratings initially assigned for his bilateral hearing loss and otitis media. It does not appear from a review of the claims folder that the veteran has been issued a statement of the case on the issues of entitlement to increased initial ratings for bilateral hearing loss and otitis media. Where a notice of disagreement has been filed with regard to an issue, and a statement of the case has not been issued, the appropriate Board action is to remand the issue for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following actions: Send the veteran and his representative a statement of the case on the issues of entitlement to an increased initial rating for bilateral hearing loss and otitis media. He should additionally be informed of his appeal rights. The appellant has the right to submit additional evidence and argument on the matters the Board is remanding. 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). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs