Citation Nr: 0736978 Decision Date: 11/26/07 Archive Date: 12/06/07 DOCKET NO. 04-07 355 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to an initial compensable evaluation for chronic vaginal infections. 2. Entitlement to an initial compensable evaluation for condyloma accuminatum. 3. Entitlement to service connection for drug and alcohol abuse. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Johnson, Associate Counsel INTRODUCTION The veteran served on active duty from February 1994 to April 1998. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2002 rating decision, wherein the RO denied compensable evaluations for chronic vaginal infections and for condyloma accuminatum. In rating actions dated in December 2002 and September 2003, the RO denied service connection for drug and alcohol abuse. The veteran disagrees with the decision. The issues of initial compensable ratings for chronic vaginal infections and condyloma accuminatum 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. In an Informal Hearing Presentation dated in October 2007, the veteran's representative argued that her in-service alcohol dependence caused a current psychiatric disorder, namely depression, which should be service-connected. The RO has not yet addressed this issue, and therefore the matter is referred to the RO for appropriate action. FINDING OF FACT The veteran filed her claim for service connection for drug and alcohol abuse in July 2002, after the passage of Congressional legislation prohibiting the grant of direct service connection for alcohol and drug abuse based on claims filed on or after October 31, 1990. CONCLUSION OF LAW Drug abuse and alcoholism were the result of willful misconduct; and were not, as a matter of law, incurred in or aggravated by service. 38 U.S.C.A. §§ 105, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.1, 3.102, 3.159, 3.301, 3.303 (2006); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) is applicable to this appeal. To implement the provisions of the law, the VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Act and implementing regulations provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. It also includes new notification provisions. The U.S. Court of Appeals for Veterans Claims (Court) has held that when the interpretation of a statute is dispositive of the issue on appeal, neither the duty to assist nor the duty to notify provisions of the VCAA are implicated. See Mason v. Principi, 16 Vet. App. 129 (2002); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000). However, by correspondence dated in July 2002, the veteran was notified of the provisions of the VCAA as they pertain to the issues of service connection, and she was informed of the duties to assist as they pertained to VA assistance in this claim, as well as the evidence needed to substantiate her claim. The record shows the veteran has been adequately notified of the information and evidence needed to substantiate her claim. Her service medical records and all identified and authorized post-service medical records relevant to the issues on appeal have been requested or obtained. Also, during the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all elements of a claim. However, in the instant case, as the veteran's claim is being denied, no disability rating or effective date will be assigned and, as set forth below, there can be no possibility of prejudice to the veteran. Law and Regulations Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2005); 38 C.F.R. § 3.303 (2007). Special considerations apply to claims involving alcoholism or alcohol abuse. Section 8052 of the Omnibus Budget Reconciliation Act (OBRA) of 1990, Pub. L. No. 101-508, § 8052, 104 Stat. 1388, 1388- 91, prohibits payment of compensation for a disability that is a result of a veteran's own alcohol or drug abuse, effective for claims filed (as in the instant case) after October 31, 1990. Moreover, Section 8052 also amended 38 U.S.C.A. § 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 (West 2002); 38 C.F.R. §§ 3.1(m), 3.301(d). The 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 June 9, 1999); VAOPGCPREC 2-98 (Feb. 10, 1998). The Board observes that the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that compensation could not be awarded pursuant to 38 U.S.C.A. § 1110 and 38 C.F.R. § 105(a) either for a primary alcohol abuse disability incurred during service or for any secondary disability that resulted from primary alcohol abuse during service. Allen v. Principi, 237 F.3d 1368, 1376 (Fed. Cir. 2001). However, there can be service connection for compensation purposes for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, a service- connected disability. Moreover, a veteran can only recover if able to "adequately establish that their alcohol or drug abuse disability is secondary to or is caused by their primary service-connected disorder." Allen, 237 F.3d at 1381. Such compensation would only result "where there is clear medical evidence establishing that the alcohol or drug abuse disability is indeed caused by a veteran's primary service- connected disability, and where the alcohol or drug abuse disability is not due to willful wrongdoing." Ibid. The simple drinking of alcoholic beverage is not of itself willful misconduct. 38 C.F.R. § 3.301(c)(2). Alcohol abuse is defined as 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. 38 C.F.R. § 3.301(d). 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. 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. Id. Factual Background and Analysis The veteran contends that she is entitled to service connection for a primary alcohol disorder which began during service and later progressed to drug abuse. In her informal claim dated received by VA in July 2002, the veteran essentially indicated that she drank heavily during service because she thought it was acceptable and because she was encouraged by her peers to "portray the image of a Marine." The veteran's service medical records are completely absent any evidence of drug or alcohol abuse. On the veteran's October 1997 Report of Medical History form she denied use of illegal substances and denied that she had ever been told to cut down her alcohol use or criticized for alcohol use. Likewise, the corresponding physical examination did not reveal any indication of a drug or alcohol abuse disorder. The DD214 reflects that the veteran received service medals for several reasons including good conduct. Post-service VA outpatient treatment records date from May 2001 to July 2003 and reflect that the veteran used and abused illegal drugs, other controlled substances and alcohol. Private medical records from the UPMC, dated in January 2002, June 2002, and March 2003, reflect treatment including counseling and detoxification, and generally indicate that the veteran continues to willfully abuse drugs and alcohol. The veteran underwent a VA psychiatric examination in October 2002, wherein she reported a history of alcohol abuse which began in the service, and which progressed to opiate use and later heroin. Following a clinical evaluation, the AXIS I diagnoses were polysubstance and opiate dependence, chronic, very severe currently still active (cocaine, alcohol, heroin, prescription medications and alcohol). The examiner also noted that the veteran had a major depressive disorder, secondary to drug and alcohol addiction and a personality disorder. She also had an AXIS II diagnosis of mixed personality disorder. Based upon the Board's review, service connection may not be awarded in this case. As a preliminary matter, it is noted that VA laws and regulations clearly establish that alcoholism and drug abuse are not disabilities for which service connection can be established or compensation is paid, unless the veteran can "adequately establish that such alcohol or drug abuse disability is secondary to or is caused by a primary service-connected disorder." In this appeal however, the veteran seeks service connection for alcoholism and drug abuse which were caused by voluntary and willful drinking to excess in-service, not because of any service-connected disorder. Therefore, she is not entitled to compensation for her current alcohol and drug abuse disorder caused by her own willful misconduct during military service. With regard to the veteran's other contention; which is essentially that she is entitled to compensation for her current drug addiction because it developed as a direct result of her in-service alcoholism, the Board finds this argument to also be without merit. The law only permits a veteran to receive compensation for an alcohol or drug-abuse disability acquired as secondary to, or as a symptom of a service-connected disability. For reasons already discussed, the claimed alcohol abuse disorder may not be service- connected; and therefore the drug abuse disorder cannot be claimed as a secondary disorder. Therefore, this aspect of the veteran's claim does not present a basis for which relief may be granted, and also has no legal merit. Compensation may not be paid for the veteran's drug and alcohol dependence. 38 U.S.C.A. §§ 1131. See also 38 C.F.R. §§ 3.1(n), 3.301. As the disposition of this claim is based on law and not the facts of this case, the claims must be denied based on lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Service connection for drug and alcohol abuse is denied. REMAND The Veterans Claims Assistance Act of 2000 (VCAA) is applicable to this appeal. To implement the provisions of the law, the VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Act and implementing regulations provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. It also includes new notification provisions. During the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (hereinafter "the Court") issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which discussed the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). As this case is being remanded for another matter, the RO now has the opportunity to correct any defects in VCAA notices previously provided the veteran. In a December 2002 rating decision, the RO continued a noncompensable (0 percent) disability rating for the veteran's service- connected chronic vaginal infections and condyloma accuminatum. The veteran contends she is entitled to compensable disability ratings for these disabilities. In the veteran's October 2007 Informal Hearing Presentation, it was indicated that her symptoms had increased in severity. The Board observes that the veteran's most recent comprehensive VA gynecological examination of record took place in March 2001. This is the most recent comprehensive gynecological examination of record, and as it is six years old, may not accurately reflect the current severity of the veteran's gynecological symptoms. Therefore, a contemporaneous VA examination is needed in order to make an informed decision regarding the veteran's current symptomatology and adequately evaluate her current level of disability. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1995) (VA was required to afford a contemporaneous medical examination where examination report was approximately two years old); see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991). While the Board sincerely regrets the additional delay caused by this remand, this development is necessary. Accordingly, the case is REMANDED for the following action: 1. The RO is to provide the veteran a corrective VCAA notice under 38 U.S.C.A.§ 5103(a) and 38 C.F.R. § 3.159(b), that includes an explanation as to the information or evidence needed to establish a disability rating and effective date for the claims(s) on appeal, as outlined by the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 2. The RO should contact the veteran and obtain the names and addresses of all medical care providers, VA and non-VA, who treated the veteran for her chronic vaginal infections and condyloma accuminatum disorder from July 2003 to the present. After the veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. All attempts to procure records should be documented in the file. If the RO cannot obtain records identified by the veteran, a notation to that effect should be inserted in the file. The veteran and her representative are to be notified of unsuccessful efforts in this regard, in order to allow them the opportunity to obtain and submit those records for VA review. 3. The veteran should be afforded a VA gynecologic examination to determine the current symptomalogy and level of impairment caused by her service-connected vaginal disorders. All indicated tests and studies are to be performed. Prior to the examination, the claims folder must be made available to the physician for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. a) With regards to the veteran's chronic vaginal infections, the physician is requested to indicate whether: symptoms require continuous treatment; or if there are symptoms not controlled by continuous treatment. b) With regards to the veteran's condyloma accuminatum, the physician is requested to discuss any current symptoms and specifically note whether there is any impairment in the function of the urinary or gynecological systems, or skin. 4. The veteran is to be notified of the date and place of any requested examination. A copy of all notifications, including the address where the notice was sent must be associated with the claims folder. The veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on her claim. 5. After the development requested above has been completed to the extent possible, the RO should again review the record and evaluate the disorders. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the veteran and her representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. 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. 2007). ______________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs