Citation Nr: 0728869 Decision Date: 09/14/07 Archive Date: 09/25/07 DOCKET NO. 04-05 703 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for drug and alcohol dependency. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. L. Mollan, Associate Counsel INTRODUCTION The veteran served on active duty from August 1975 to August 1978, and from May 1980 to September 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2002 RO decision, which denied a claim for service connection for drug and alcohol dependency. In June 2007, a Travel Board hearing was held before the undersigned Veterans Law Judge at the Muskogee, Oklahoma RO. A transcript of that proceeding has been associated with the claims folder. FINDING OF FACT The veteran is not shown by the evidence of record to have a drug and alcohol dependency that is related to service or a service-connected disability. CONCLUSION OF LAW Service connection for a drug and alcohol dependency is not warranted. 38 U.S.C.A. §§ 105(a), 1110, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.1(m) and (n), 3.301 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The Board finds that the disposition of this claim is based on the law, and not the facts of the case. As such, the claim must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The provisions of the VCAA have no effect on an appeal where the law, and not the underlying facts or development of the facts, are dispositive in a matter. See Manning v. Principi, 16 Vet. App. 534, 542-543 (2002); see also 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2006). II. Analysis The Board has thoroughly reviewed all the evidence in the veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The Board must assess the credibility and weight of all 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 claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. 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 the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. §3.303(b) (2006). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. §3.303(d) (2006). The law and regulations provide that compensation shall not be paid if the claimed disability or death was the result of the person's own willful misconduct or abuse of alcohol or drugs. See 38 U.S.C.A. §§ 105, 1110 (West 2002); 38 C.F.R. §§ 3.1(n), 3.301(c) (2006). With respect to alcohol and drug abuse, Section 8052 of the Omnibus Budget Reconciliation Act (OBRA) of 1990, Pub. L. No. 101-508, § 8052, 104 Stat. 1388, 1388-351, prohibits, effective for claims filed after October 31, 1990, payment of compensation for a disability that is a result of a appellant'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 the 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 also VAOPGPREC 2- 97. Willful misconduct means an act involving conscious wrongdoing or known prohibited action. A service department finding that injury, disease or death was not due to misconduct will be binding on VA unless it is patently inconsistent with the facts and the requirements of laws administered by VA. It 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 will not per se constitute willful misconduct. Willful misconduct will not be determinative unless the proximate cause of injury, disease or death. 38 C.F.R. § 3.1(n) (2006). 38 C.F.R. § 3.301(c)(2) provides that the simple drinking of an alcoholic beverage is not of itself willful misconduct. The deliberate drinking of a known poisonous substance or under conditions which would raise a presumption to that effect will be considered willful misconduct. If, in the drinking of a beverage to enjoy its intoxicating effects, intoxication results proximately and immediately in disability or death, the disability or death will be considered the result of the person's willful misconduct. 38 C.F.R. § 3.301(c)(3) provides that 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. In Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001) (CAFC), the CAFC held that a veteran could receive compensation for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, a veteran's service-connected disability. In other words, 38 U.S.C.A. §§ 1110, 1131 do not preclude compensation for an alcohol or drug abuse disability secondary to a service-connected disability, or use of an alcohol or drug abuse disability as evidence of the increased severity of a service-connected disability. Rather, the statute precludes compensation only for (a) primary alcohol abuse disabilities, and (b) secondary disabilities (such as cirrhosis of the liver) that result from primary alcohol abuse. CAFC defined "primary" as meaning an alcohol abuse disability arising during service from voluntary and willful drinking to excess. The veteran is seeking service connection for a drug and alcohol dependency. He essentially contends that he was ordered by a sergeant to use opium on a regular basis during active duty service. See Travel Board hearing transcript, June 2007. He also alleges that his inservice drug use led to alcohol abuse. Id. The veteran's DD Form 214 reflects that the reason for the veteran's September 1983 discharge was "misconduct-drug abuse." According to the veteran's testimony at his June 2007 Travel Board hearing, he progressively and frequently used drugs to the point of addiction during his active duty service. It was also at this time that he began to have problems with alcohol due to his drinking of the beverage for the purpose of getting intoxicated. See Travel Board hearing transcript, June 2007. As mentioned above, drug and alcohol use of this nature will be considered willful misconduct under 38 C.F.R. § 3.301(c)(2) and (c)(3). In addition, the veteran's DD Form 214 specifically states that he was discharged for misconduct related to drug abuse. Therefore, service connection may not be granted as a matter of law according to 38 C.F.R. § 3.301(a). Although the Board is sympathetic to the veteran's situation and acknowledges his allegations at the June 2007 Travel Board hearing that he was ordered to use drugs by his sergeant, the law and regulations provide that compensation shall not be paid if the disability was the result of the person's own willful misconduct, to include the abuse of alcohol or drugs. The veteran does not have any recognized service-connected disabilities; as such, secondary service connection for drug and alcohol dependency is not possible. Based on the findings above, particularly the veteran's DD Form 214, the clear preponderance of the evidence demonstrates that such is the case in this instance. See 38 U.S.C.A. § 105 (West 2002); 38 C.F.R. §§ 3.1(n), 3.301 (2006); see also VAOPGPREC 2-97. ORDER Entitlement to service connection for drug and alcohol dependency is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs