Citation Nr: 0734000 Decision Date: 10/29/07 Archive Date: 11/07/07 DOCKET NO. 97-01 662 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for substance abuse. 2. Entitlement to compensation pursuant to 38 U.S.C.A. § 1151 due to treatment at a VA medical facility in May and June 1997. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Moore, Associate Counsel INTRODUCTION The veteran had active service from December 1970 to March 1973. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 1995 rating decision of the Cleveland, Ohio Regional Office (RO) of the Department of Veterans Affairs (VA). Subsequently, the veteran appealed the denial of his claim to the Board, which in a December 1997 decision, also denied the veteran's claim for entitlement to service connection for substance abuse. Thereafter, the veteran appealed the Board's decision to the Untied States Court of Appeals for Veterans Claims (Court), which in an August 1999 decision, affirmed the Board's decision. However, the matter was appealed to the United States Court of Appeals for the Federal Circuit which remanded the matter to the Court. [citation redacted]) (order issued as mandate) (removing case from Federal Circuit argument calendar and remanding to the Court for further proceedings consistent with Hensley v. West, 212 F.3d 1255 (Fed. Cir. 2000)). In a March 2003 decision, entered as judgment in April 2003, the Court vacated the Board's December 1997 decision and remanded the matter to the Board for readjudication. The claim again came before the Board in April 2004. However, it was remanded for further development. This matter also comes to the Board on appeal from a December 1999 decision of the Cleveland RO that denied the veteran's claim for entitlement to compensation pursuant to 38 U.S.C.A. § 1151 due to treatment at a VA medical facility in May and June 1997. The issue of entitlement to compensation pursuant to 38 U.S.C.A. § 1151 due to treatment at a VA medical facility in May and June 1997 is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required on his part. FINDING OF FACT The competent evidence of record demonstrates that the veteran's substance abuse was the result of his own willful misconduct and was not due to therapeutic purposes. CONCLUSION OF LAW Substance abuse was not, as a matter of law, incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.1(n), 3.102, 3.301, 3.303, 3.310 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman holds that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (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. Upon receipt of an application for "service connection," therefore, the Department of Veterans Affairs (VA) is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In the present case, VA satisfied its duty to notify by means of an April 2004 letter from the agency of original jurisdiction (AOJ) to the appellant that informed the appellant of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence, and requested that he submit any evidence in his possession pertaining to the claim. The Board observes that the aforementioned letter did not provide the veteran with notice of the type of evidence necessary to establish a disability rating or effective date in the event of award of the benefit sought. However, despite the inadequate notice provided to the veteran on these latter two elements, the Board finds no prejudice to the veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the veteran has been prejudiced thereby). In that regard, as the Board concludes below that the preponderance of the evidence is against the veteran's claim for service connection, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the U.S. Court of Appeals for Veterans Claims held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In the present case, complete VCAA notification was not achieved until after the initial AOJ adjudication of the claim. Nevertheless, the Court in Pelegrini noted that such requirement did not render a rating decision promulgated prior to providing the veteran full VCAA notice void ab initio, which in turn would nullify the notice of disagreement and substantive appeal filed by the veteran. In other words, Pelegrini specifically noted that there was no requirement that the entire rating process be reinitiated from the very beginning. Rather, the claimant should be provided VCAA notice and an appropriate amount of time to respond and proper subsequent VA process. Here, the Board finds that any defect with respect to the timing of the VCAA notice letter was harmless error. Although the notice was provided to the appellant after the initial adjudication, the case was readjudicated thereafter, and the appellant has not been prejudiced thereby. The content of the notice provided to the appellant fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. Not only has the appellant been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices, but the actions taken by VA have essentially cured the error in the timing of notice. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his claim. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal. With regard to the duty to assist, the claims file contains VA and private treatment records, and VA examination reports. Additionally, the claims file contains the veteran's statements in support of his claim. The Board notes that the record does not contain the veteran's service medical records. Requests were made to the National Personnel Records Center (NPRC), which indicated that it provided such records to the Cleveland RO in August 1987. In April 2005, the Cleveland RO checked various locations for the veteran's service medical records, but was unable to locate them. Subsequently, in May 2005, the RO informed the veteran that he needed to complete a NA Form 13055 (Request for Information Needed to Reconstruct Medical Data), which it attached to its correspondence However, the veteran had not responded to such request for information. As such, the Board finds that VA has done everything reasonably possible to assist the appellant. In the circumstances of this case, additional efforts to assist the appellant in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). VA has satisfied its duties to inform and assist the appellant at every stage of this case. Given the extensive development undertaken by the RO and the fact that the appellant has pointed to no other evidence which has not been obtained, the Board finds that the record is ready for appellate review. However, the Board is mindful that, in a case such as this, where service medical records are unavailable, there is a heightened obligation to explain our findings and conclusions and to consider carefully the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). While it is unfortunate that the veteran's service medical records are unavailable, the appeal must be decided on the evidence of record and, where possible, the Board's analysis has been undertaken with this heightened duty in mind. Legal Criteria Service-connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007). In addition, service-connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d)(2007). In order to prove service connection, a claimant must generally submit (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus or relationship between the current disability and the in- service disease or injury. Pond v. West, 12 Vet. App. 341, 346 (1999). Direct service connection may be granted only when a disability or cause of death was incurred or aggravated in 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. 38 C.F.R. § 3.301(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. (See 38 C.F.R. § 3.301(d) regarding service connection where disability or death is a result of abuse of drugs.) 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). 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. 38 C.F.R. § 3.301(d). See also 38 U.S.C.A. § 105; 38 C.F.R. §§ 3.1(m) (2002). VA's General Counsel has confirmed that direct service connection for a disability that is a result of a claimant's own abuse of alcohol or drugs is precluded for purposes of all VA benefits for claims filed after October 31, 1990. See VAOPGCPREC 7-99 (1999), published at 64 Fed. Reg. 52,375 (June 9, 1999); VAOPGCPREC 2-98 (1998), published at 63 Fed. Reg. 31,263 (February 10, 1998). 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2007). Legal Analysis The veteran asserts that service connection is warranted for substance abuse that he contends began in service. However, the Board has reviewed all of the evidence of record and finds that service connection for substance abuse is not warranted. As noted above, direct service connection for disability that is a result of the claimant's abuse of drugs is precluded for purposes of all VA benefits. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.301(a). Where drugs are used for therapeutic purposes ...it will not be considered of misconduct origin. 38 C.F.R. § 3.301(c)(3). In this case, the veteran contends that he became addicted to prescription methadone during a detoxification program at Fort Knox after a urinalysis test was positive for morphine. He asserts that there is no evidence that he took morphine or methadone for other than therapeutic purposes and that it was not a result of willful misconduct or drug abuse. The evidence of record clearly demonstrates a history of drug abuse. Indeed, post-service treatment records from as far back as 1979, reflect that the veteran has been variously diagnosed with, and treated for, alcoholism and cocaine, heroin, marijuana, and/or opiate dependence and/or abuse. However, the Board notes that post-service treatment records do not reflect that the veteran has ever used or been addicted to methadone. As stated above, such treatment records reflect that he has been addicted to alcohol, cocaine, heroin, and/ or marijuana. Moreover, there is no evidence that the veteran was prescribed methadone in service during a detoxification program. The Board recognizes that the veteran's service medical records have been reported to be unavailable. However, the veteran was provided the opportunity to submit alternate forms of evidence to show that he was prescribed methadone in service, but there is no corroborating documentation in the record to support his contention. Nevertheless, even if it had been found that the veteran had been prescribed methadone in service, there is no competent clinical evidence of record that such methadone use, which the veteran has indicated was provided during a drug detoxification program, resulted in his current drug addiction. Therefore, the Board finds that the preponderance of the evidence is against a finding that the veteran's drug use was for therapeutic purposes. Accordingly, as the evidence of record does not demonstrate that the veteran's drug abuse was other than the result of his own willful misconduct, the Board finds service connection for substance abuse as a primary disability is precluded by law. The Board also finds that the veteran is not entitled to service connection for substance abuse on a secondary basis. In Allen v. Principi, 237 F. 3d 1368 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (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 Federal Circuit held that § 1110 precludes compensation for secondary disabilities that result from primary alcohol abuse. In this case, however, the veteran does not contend that his drug use is the result of a service-connected disability. Moreover, the record does not demonstrate that he is service- connected for any disability. Therefore, the veteran is not entitled to a grant of service connection for substance abuse on a secondary basis. In conclusion, the Board, for all of the foregoing reasons, finds that the veteran's claim for entitlement to service connection for substance abuse must be denied. The Board has considered the doctrine of giving the benefit of the doubt to the veteran, under 38 U.S.C.A. § 5107 (West 2002), and 38 C.F.R. § 3.102 (2007), but does not find that the evidence is of such approximate balance as to warrant its application. ORDER Entitlement to service connection for substance abuse is denied. REMAND The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2006); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). With respect to the veteran's claim for entitlement to compensation pursuant to 38 U.S.C.A. § 1151 due to treatment at a VA medical facility in May and June 1997, the record does not demonstrate that he has been provided the requisite VCAA notification. As such, the Board finds that the claim must be remanded for compliance with VCAA requirements. Accordingly, the case is REMANDED for the following action: 1. Issue VCAA notice with regard to the issue on appeal, in accordance with the decision in Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004), Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), as well as 38 U.S.C.A. 5102, 5103, and 5103A, 38 C.F.R. § 3.159, and any other applicable legal precedent. Specifically, the appellant and his representative should be informed as to the information and evidence necessary to substantiate his claim for entitlement to compensation pursuant to 38 U.S.C.A. § 1151 due to treatment at a VA medical facility in May and June 1997, including which evidence, if any, the veteran is expected to obtain and submit, and which evidence will be obtained by VA. The veteran should also be advised to send any evidence in his possession pertinent to his appeal to the VA. Additionally, the veteran should be advised of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim, including notice that a disability rating and an effective date for the award of benefits will be assigned if the claim is granted. 2. Thereafter, the veteran's claim should be readjudicated. If the benefit sought on appeal remains denied, the veteran and his representative should be provided with a supplemental statement of the case and given an appropriate period of time for response. Thereafter, the case should be returned to the Board, if in warranted. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs