Citation Nr: 0726945 Decision Date: 08/29/07 Archive Date: 09/11/07 DOCKET NO. 04-11 783A ) 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 depression secondary to hepatitis C. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Chris Yegen, Associate Counsel INTRODUCTION The veteran served on active duty from February 1976 to February 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the benefits sought on appeal. FINDINGS OF FACT 1. The veteran has hepatitis C secondary to intravenous drug use in service prior to his diagnosis of hepatitis in April 1978. 2. The veteran's depression disorder is not secondary to any service-connected condition. The veteran's service medical records make no reference to any diagnosis of or treatment for depression and it has no nexus to service. CONCLUSIONS OF LAW 1. Hepatitis C was not incurred in or aggravated by active service. 38 U.S.C.A. § 1131 (West Supp. 2005); 38 C.F.R. § 3.303 (2006). 2. Depression secondary to hepatitis C was not incurred in or aggravated by active service. 38 U.S.C.A. § 1131 (West Supp. 2005); 38 C.F.R. § 3.303 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). In general, service connection requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). II. Hepatitis C The veteran claims that he contracted hepatitis C during service from an air injection gun during inoculation or from dirty utensils used in the field. For the reasons set forth below, the Board finds that the evidence does not support service connection for hepatitis C. In the instant case, the veteran's service medical records note a diagnosis for hepatitis in January 1978 although they do not specify which type. In January 1978 the veteran tested positive for drug use and received treatment. In July 1978, the veteran complained of steady drug use and requested possible psychological evaluation. The veteran's service medical records are found to provide evidence against his claim, indicating a problem caused by willful misconduct. In July 2003, VA outpatient treatment reports provided a diagnosis of hepatitis C, cirrhosis of the liver, substance abuse, and depression. In August 2003, VA furnished the veteran a compensation examination to determine the etiology of his hepatitis C. Based on test results, the examiner found low serum albumin indicating poor protein nutrition and liver disease. When examined, the veteran reported that he used intravenous drugs on at least three occasions in service before his failed drug test in January 1978. Indeed, the examiner opined that since the veteran reported using syringes prepared by other soldiers, it was likely that he used shared needles. As a result, the examiner noted that the intravenous drug use is the veteran's only risk factor for hepatitis C in service. Hence, the examiner opined that it is as likely as not that the veteran developed hepatitis C secondary to intravenous drug use during active military service; providing highly probative evidence against this claim, clearly indicting willful misconduct. VA may not grant service connection as a result of the person's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C.A. §§ 105, 1110; 38 C.F.R. §§ 3.1(n), 3.301(c). Section 8052 of the Omnibus Budget Reconciliation Act (OBRA) of 1990, Pub. L. No. 101-508, § 8052, 104 Stat. 1388, 1388- 351, effective for claims filed after October 31, 1990, prohibits payment of compensation for a disability that is a result of a veteran's own alcohol or drug abuse. Moreover, § 8052 also amended 38 U.S.C. § 105(a) to provide that, with respect to claims filed after October 31, 1990, an injury or disease incurred during active service will not be 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(n), 3.301. In VAOPGCPREC 2-98 (February 10, 1998), the VA General Counsel held that 38 U.S.C.A. § 105(a), as amended by section 8052(a) of the OBRA, prohibits a grant of "direct service connection" for drug or alcohol abuse on the basis of incurrence or aggravation in line of duty during service. In Allen v. Principi, 237 F. 3d 1368 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit held that the current version of § 1110, when read in light of its legislative history, does not preclude a veteran from receiving compensation for alcohol or drug-related disabilities arising secondarily from a service-connected disability. However, the Court held that § 1110 precludes compensation for secondary disabilities that result from primary drug or alcohol abuse. The Court provided two reasons for this rule. First, such a secondary disability does not satisfy § 1110's words of authorization for disabilities contracted "in line of duty." Second, like the primary drug abuse disability, a secondary disability arising from a primary drug disability is not compensable because to fit within the words of § 1110's exclusion, as it too is a "result of the veteran's own . . . abuse of alcohol or drugs [i.e., primary drug abuse acquired in service]." A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186. See also Bostain v. West 11 Vet. App. 124, 127 (1998) citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, No. 04-0534 (Vet. App. June 15, 2007). In this case, the Board finds that the service and post-service medical records outweigh the veteran's contention that this disorder was incurred in service by factors other than drug abuse. Indeed, the record clearly indicates the condition began as a result of intravenous drug use in service. The Board has considered carefully the veteran's contentions regarding injection guns vs. drug abuse, however, both service and, most importantly, post-service (the VA examination) provide evidence that clearly supports a finding that it was the drug abuse (sharing needles) that caused the veteran's disability. The problem regarding needle sharing and the spread of the disorder at issue are clear. There is nothing in the record to support the veteran's contention. Based on the above, the preponderance of the evidence is against the veteran's claim for hepatitis C. Hence, there is not an approximate balance of positive and negative evidence to which the benefit-of-the-doubt standard applies. 38 U.S.C.A. § 5107(b). As a result, VA must deny the appeal. II. Depression Secondary to Hepatitis C The veteran's service medical records make no reference to any diagnosis of or treatment for depression. Hence, the veteran's service medical records provide evidence against this claim. In July 2003, VA outpatient treatment reports provided a diagnosis of hepatitis C, cirrhosis of the liver, substance abuse, and depression. The veteran's depression disorder is not secondary to any service-connected condition. Indeed, the veteran does not have any service-connected disabilities incurred in or aggravated by service. Hence, by law, a depression disorder can not be secondary to hepatitis C or any other disease or disorder. Even assuming the veteran's depression was secondary to his hepatitis C, the veteran can not receive compensation for a disorder adjudged to be willful misconduct. Based on the above, the preponderance of the evidence is against the veteran's claim for depression as secondary to his hepatitis C. Hence, there is not an approximate balance of positive and negative evidence to which the benefit-of- the-doubt standard applies. 38 U.S.C.A. § 5107(b). As a result, VA must deny the appeal. The Duty to Notify and the Duty to Assist The Board notes that VA has fully complied with the duty-to- notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 197 (2002). In particular, letters by the RO in May and June 2003 (1) informed the veteran about the information and evidence not of record that is necessary to substantiate his claims; (2) informed him about the information and evidence that VA will seek to provide; (3) informed him about the information and evidence he is expected to provide; and (4) requested him to provide any evidence in his possession that pertains to the claims, or something to the effect that the claimant should "give us everything you've got pertaining to your claims." Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board notes that VA has fully complied with the Court's holding in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which states that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The Federal Circuit recently held that a statement of the case or supplemental statement of the case can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC. See Mayfield v. Nicholson, No. 02-1077 (U.S. Vet. App. December 21, 2006) [hereinafter Mayfield III]. As a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. See Mayfield III, (citing Mayfield v. Nicholson, 444 F.3d at 1328, 1333-34). In any event, the Board finds that any deficiency in the notice to the veteran or the timing of these notices is harmless error. See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that the Board erred by relying on various postdecisional documents to conclude that adequate 38 U.S.C.A. § 5103(a) notice had been provided to the appellant, the Court found that the evidence established that the veteran was afforded a meaningful opportunity to participate in the adjudication of his claims, and found that the error was harmless, as the Board has done in this case.) If there was any deficiency in the notice to the veteran, the Board finds that the presumption of prejudice on the VA's part has been rebutted in this case by the following: (1) based on the communications sent to the veteran over the course of this appeal, the veteran clearly has actual knowledge of the evidence he is required to submit in this case; and (2) in this case, based on the veteran's contentions and the communications provided to the veteran by the VA over the course of this appeal, he is found to be reasonably expected to understand from the notices provided what was needed. VA also fulfilled its duty to obtain all relevant evidence with respect to the issues on appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO obtained all relevant medical records identified by the veteran and his representative. In addition, VA afforded the veteran a compensation examination to determine the nature and etiology of his hepatitis C disorder. Accordingly, the Board finds that no further action is necessary to meet the requirements of the VCAA or the Court. ORDER The appeal is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs