Citation Nr: 0300489   

Decision Date: 01/09/03    Archive Date: 01/28/03

DOCKET NO.  00-09 877   )     DATE

      )

      )

On appeal from the

Department of Veterans Affairs Regional Office in

Muskogee, Oklahoma

THE ISSUE

Entitlement to service connection for Hepatitis C.

REPRESENTATION

Veteran represented by: Oklahoma Department of

Veterans Affairs

ATTORNEY FOR THE BOARD

R. A. Speck, Associate Counsel

INTRODUCTION

The veteran had active service from November 1970 to September 1985.  Service in Vietnam is shown by the evidence of record.

This matter comes before the Board of Veterans Appeals (the Board) on appeal from a December 1999 rating decision of the Department of Veterans Affairs (VA) Regional Office

in Muskogee, Oklahoma (the RO) which denied the veteran's claim of entitlement to service connection for Hepatitis C.

In April 2000, the veteran requested a personal hearing before a traveling Member of the Board.  In August 2000, the veteran withdrew his request for a personal hearing in a written statement.  There are no additional outstanding hearing requests at this time.

The veteran's claim of entitlement to service connection for Hepatitis C was previously before the Board, and in a November 2001 remand it was returned to the RO for additional development.  That development has been completed and the claim is once again before the Board on appeal.

FINDING OF FACT

The competent and probative evidence of record shows that the veteran currently has Hepatitis C that is related to his military service.

CONCLUSION OF LAW

The veteran's Hepatitis C is shown to have been incurred during his military service.  38 U.S.C.A. §§ 1110, 1131 (West Supp. 2002); 38 C.F.R. § 3.303 (2002).

REASONS AND BASES FOR FINDING AND CONCLUSION

The veteran is seeking entitlement to service connection for Hepatitis C.  In substance, he contends that he contracted Hepatitis C while in service, apparently as a result of unprotected

sex.  The RO denied entitlement to service connection on the basis that Hepatitis C had been incurred as a result of misconduct during military service.  As will be discussed below, the Board finds that the veteran's patronage of prostitutes during active service did not constitute willful misconduct.

At the outset of its decision, the Board notes that the veteran had two periods of active service.  His first period of service, from November 1970 to January 1984, was honorable in nature.  His second period of service, from January 1984 to September 1985, was under conditions other than honorable.  An Administrative Decision dated in March 1988 stated that the veteran's second period of service presented a bar to all VA benefits for that period.  As will be discussed below, it appears that the veteran's claimed incurrence of Hepatitis C falls within the first period of service, and thus the veteran's claim of entitlement to service connection for Hepatitis C is not barred by his second period of service, which was under conditions other than honorable.

In the interest of clarity, after reviewing generally applicable law and regulations and describing the factual background of this case, the Board will discuss the issue on appeal. 

Relevant law and regulations

The VCAA

The Board has given consideration to the provisions of the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000) (VCAA) [[codified as amended at 38 U.S.C. §§ 5102, 5103, 5103A, 5107].  The VCAA eliminated the former statutory requirement that claims be

well grounded.  Cf. 38 U.S.C.A. § 5107(a) (West 1991).  The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate

a claim for VA benefits.  The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims.   See 38 U.S.C.A. §§ 5103, 5103A.  Regulations implementing the VCAA have been enacted.  See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2001).

The VCAA is applicable to all claims filed on or after the date of enactment, November 9, 2000, or filed before the date of enactment and not yet final as of that date.  In this case, the veteran's claim was filed in November 1999 and remains pending.  The provisions of the VCAA and the implementing regulations are accordingly applicable.  See Holliday v. Principi, 14 Vet. App. 280 (2001) [the Board must make a determination as to the applicability of the various provisions of the VCAA to a particular claim].

The VCAA alters the legal landscape in three distinct ways: standard of review, notice and duty to assist. The Board will now address these concepts within the context of the circumstances presented in this case.

(i.)  Standard of review

As discussed above, the concept of a (not) well-grounded claim has been eliminated.  The current standard of review for all claims is as follows.

Once all the evidence has been brought together, the Board has the responsibility to evaluate the record on appeal.  See 38 U.S.C.A. § 7104 (West Supp. 2002).  When there is an approximate balance of the evidence regarding the merits of an issue material to the determination of the

matter, the benefit of the doubt in resolving each issue shall be given to the claimant.  See 38 U.S.C.A. § 5107 (West Supp. 2001); 38 C.F.R. § 3.102 (2001).  In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that

"a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. 

The Board notes that the rating decision issued in December 1999 denied the veteran's service connection claim based on the later invalidated well-groundedness standard.  The claim was readjudicated under the provisions of the VCAA and denied on the merits in the October 2002 supplemental statement of the case.  See VAOPGCPREC 03-2001. 

The Board will apply the current standard in adjudicating the veteran's claim. 

(ii.)  Notice

The VCAA requires VA to notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided to the Secretary that is necessary to substantiate the claim.  As part of the notice, VA is to specifically inform the

claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.  See also Quartuccio v. Principi, 16 Vet. App. 183 (2002) [a letter from VA to a

claimant describing evidence potentially helpful to the claimant but not mentioning who is responsible for obtaining such evidence did not meet the standard erected by the VCAA].

The veteran was informed in a December 1999 letter and rating decision of the evidence needed to substantiate his claim, and he was provided an opportunity to submit such evidence.  Moreover, in an April 2000 statement of the case and a supplemental statement of the case issued in

October 2002, the RO notified the veteran of regulations pertinent to service connection claims, informed him of the reasons why his claim had been denied, and provided him additional opportunities to present evidence and argument in support of his claim. 

In a January 2002 letters and the October 2002 supplemental statement of the case, the veteran was informed of VA's duty to obtain evidence on his behalf.  Copies of VCAA regulations were provided to the veteran in the October 2002 statement of the case.  The veteran was notified that VA would obtain all relevant service medical records, VA medical records, and reports of examinations or treatment at non-VA facilities authorized by VA.  In addition, VA would request other relevant records held by any Federal agency or department.  In turn, the veteran was informed of his duty to provide VA with enough information to identify and locate other existing records, i.e., names of persons, agencies, or companies that hold relevant medical records, addresses of these individuals, and the dates that such treatment was received. 

The Board finds that the foregoing information provided to the veteran satisfies the requirements of 38 U.S.C.A. § 5103 and Quartuccio in that the veteran was clearly

notified of the evidence necessary to substantiate his service connection claim.  Under these circumstances, the Board finds that the notification requirement of the VCAA has been satisfied. 

(iii.) Duty to assist

The VCAA also provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  The law provides that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim.  An examination is deemed "necessary" if the record does not contain sufficient medical evidence for VA to make a decision on the claim.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

The veteran's service medical records have been received, as have private medical records.  In addition, the veteran was afforded VA examinations in September 2000 and April 2002, which will be discussed below. 

As was noted in the Introduction, the Board remanded this case in November 2001 so that certain evidentiary development could be accomplished.  The requested development was done, to include the April 2002 VA examination and nexus opinion.  The Board finds that all known and ascertainable medical records have been obtained and are associated with the claims file.  The veteran does not appear to contend that additional evidence which is pertinent to this claim exists. 

The veteran has been accorded ample opportunity to present evidence and argument in support of his claim.

In summary, the Board finds that VA has done everything reasonably possible to assist the veteran and that no further action is necessary to meet the requirements of the VCAA and the applicable regulatory changes published to implement that statute.  The Board will accordingly

proceed to a review of the merits of the issue on appeal.

Service connection

Applicable law provides that service connection will be granted if it is shown that the veteran suffers from a disability resulting from an injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered of disease contracted in the line of duty, in active military, naval, or air service.  See 38 U.S.C.A. §§ 1110, 1131 (West Supp. 2002); 38 C.F.R. § 3.303 (2002).

Service connection may also 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.  See 38 U.S.C.A. § 1113(b) (West Supp. 2002); 38 C.F.R. § 3.303(d) (2002);

Cosman v. Principi, 3 Vet. App. 503, 505 (1992).

In order to establish service connection for the claimed disorder, there must be (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).  A determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.  See Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a).

Willful misconduct

The Board notes that no compensation shall be paid if a disability is the result of the veteran's own willful misconduct, including the abuse of alcohol or drugs.  38 U.S.C.A. §§ 105, 1110, 1131 (West 1991 & Supp. 2002); 38 C.F.R. § 3.1(n), 3.301 (2002).

Willful misconduct is defined as an act involving conscious wrongdoing or known prohibited action.  It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences.  A mere technical violation of police regulations or ordinances will not per se constitute willful misconduct.  38 C.F.R. § 3.1(n) (2002).

Residuals of venereal disease are not to be considered the result of willful misconduct.  See 38 U.S.C.A. § 105; 38 C.F.R. § 3.301(c)(1).

Factual background

The veteran's service medical records contain no complaints, treatment, or diagnoses for Hepatitis C or any liver abnormalities.  In January 1974, it was noted that the veteran had a history of improper drug use, including marijuana, heroin, and barbiturates.  While he denied all drug use, he volunteered for rehabilitation in February 1973 to avoid separation.  As noted above the veterans period of service from January 1984 to September 1985 was under other than honorable conditions.  In August 1985, the veteran underwent drug and alcohol counseling.  The veteran's separation examination is pertinently negative for complaints, treatment, or diagnoses of Hepatitis C or any liver abnormalities.

There are no pertinent medical records for over a decade after the veteran was separated from military service.

Medical records from Altus Medical Clinic reflect that the veteran was treated for Hepatitis C from September 1998 to February 1999.  In September 1998, the veteran denied the use of intravenous drugs and any blood transfusions.  In December 1998, it was noted that he had prior exposure to both Hepatitis B and Hepatitis C; the precise nature of such exposure was not specified.  He was diagnosed with alcohol abuse and Hepatitis C with abnormal liver function

tests.  The examiner stated that it was difficult to differentiate whether the veteran's illness was a Hepatitis C infection or an alcoholic liver disease.  In February 1999, the veteran was diagnosed with Hepatitis C and a history of Hepatitis B exposure that had resolved.  No comment was made regarding the etiology of the veteran's Hepatitis C.

In an April 2000 statement, the veteran asserted that he had developed Hepatitis C while stationed in Vietnam.  He reported that he had no other exposure high risk factors for Hepatitis C other than during military service.  

At a September 2000 VA examination the veteran was diagnosed with Hepatitis C, onset in August 1998.  No comment was made regarding the etiology of the veteran's Hepatitis C.

As a result of the Board's November 2001 remand, the veteran was provided with a VA examination for liver disorders in April 2002.  The claims file was reviewed by the examiner in conjunction with the examination.  The veteran reported being diagnosed with Hepatitis C in August 1999.  He stated that during his overseas military service, from 1971 to 1979, he had frequent sex with

prostitutes.  He denied any other risk factors for contracting Hepatitis C, including tattoos, body piercing, blood transfusions, or intravenous drug use.  He also denied any occupational or percutaneous exposures. 

Following a physical examination, the veteran was diagnosed with Hepatitis C infection.  No sign of liver impairment was seen.  The examiner stated that if liver damage/cirrhosis had been present, he would have been unable to distinguish its cause, because both chronic alcohol abuse and Hepatitis C infection cause liver impairment.   

The examiner opined that the veteran's Hepatitis C infection was "most likely" caused by his promiscuous sexual activity with prostitutes during his military service.  

Analysis

The veteran is seeking service connection for Hepatitis C.  In essence, he contends that he was exposed to Hepatitis C due to promiscuous sex with prostitutes during service and was not diagnosed with the disability until approximately 20 years later.

As described above, the only medical nexus opinion of record, which was obtained pursuant to the Board remand instructions, in essence supports the veteran's position.  However, in the October 2002 supplemental statement of the case, the RO denied entitlement to service connection for

Hepatitis C, citing the veteran's "misconduct", specifically "promiscuous sexual activity while in service".  The RO noted the veteran's self admission of engaging in sexual activity with prostitutes during service and concluded that VA regulations prohibit payment of benefits due to such misconduct. 

The general prohibition against service connection for disease or injury caused by a veteran's own willful misconduct has been set forth above.  The precise outline of this rule is somewhat unclear.  There is no statute or regulation specifically  prohibiting payment of benefits

for any disease or injury incurred as a result of promiscuous sexual activity during service.  It is debatable whether consorting with prostitutes constitutes an act "involving conscious wrongdoing or known prohibited action".  Although patronizing prostitutes is illegal in

many jurisdictions, prostitution is legal or quasi-legal in certain parts of the world. 

VA regulations specifically provide that residuals of venereal disease are not to be considered "willful misconduct".  See 38 U.S.C.A. § 105; 38 C.F.R. § 3.301(c)(1).  The Board observes that "venereal disease" is defined as one "transmitted only or chiefly by sexual intercourse with an infected individual".  See Webster's New World Dictionary, Third College Edition (1988) 1480. 

The veteran has not contended that Hepatitis C fits that definition, indeed stating through his representative in December 2002 "Hepatitis C would not be considered a venereal disease".  The Board similarly does not believe that the definition applies, in that it may be transmitted

in numerous ways other than sexual intercourse (including tattoos, intravenous drug use and needle sticks).  However, while it is true that Hepatitis C may be acquired in ways other than sexual contact, it is also true that it may be acquired through sexual contact.  The veteran

claims that such is his situation, and the medical opinion supports the veteran's contention.

While the veteran thus does not currently suffer from a venereal disease, it appears that there is clearly intent on the part of Congress and VA to remove from the definition of willful misconduct diseases which are the residuals of sexual contact.  It would thus appear to be

contrary to the spirit, if not the letter, of the law to allow service connection for syphilis but deny service connection for Hepatitis C when it has been demonstrated that the latter has been incurred as a result of sexual contact.  The Board therefore concludes that in this case

the veteran's Hepatitis C may be likened to venereal disease and therefore falls outside of the statutory misconduct prohibition. 

The Board additionally observes that if Hepatitis C had been acquired due to intravenous drug use, the misconduct provisions cited above would clearly apply.  Although there is some suggestion of drug abuse in the veteran's service medical records, he has denied intravenous drug use, and the medical records do not document intravenous drug use.  Nor do the medical records point to any other possible cause of hepatitis.

The Board therefore finds that the veteran's patronage of prostitutes during military service, and his incurrence of Hepatitis C as a result, does not constitute misconduct as defined by VA.  

As noted above, in order for service connection to be granted, three elements must be met: (1) current disability; (2) in-service disease or injury; and (3) medical nexus.  See Hickson, supra.

With respect to Hickson element (1), a current disability, the veteran has been diagnosed with Hepatitis C on several occasions.  Hickson element (2), evidence of an in-service disease or injury, has also been met.  The veteran has reported his sexual contacts with prostitutes during his military service overseas.  With respect to element (3), there is medical opinion evidence from a VA physician linking the veteran's Hepatitis C to his military service.  Specifically, the April 2002 VA examiner stated that the veteran's Hepatitis C was "most likely" caused by his

promiscuous sexual activity with prostitutes during active service.  See 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d) [service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disease was incurred in service].

The Board wishes to make it clear that the only disability for which service connection is being granted is Hepatitis C, and not a separate liver disorder.  This conclusion is based on the findings of the April 2002 VA examination, which indicated that a physical examination and laboratory analysis showed no sign of liver impairment.  In addition, the VA examiner stated that he would be unable to distinguish between chronic alcohol abuse and Hepatitis C

as the cause of any liver disorder that may be present.

To the extent that the veteran ascribes a separate liver disorder to his active service, it is well established that the veteran, as a layperson without medical training, is not qualified to render medical opinions regarding the etiology of disorders and disabilities, and his opinion is

entitled to no weight of probative value.  See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992); see also 38 C.F.R. § 3.159(a)(1) ["competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical

diagnoses, statements, or opinions."]

In short, the evidence of record has established that the veteran suffers from a current disability, namely Hepatitis C, and that this current disability is related to his military service.  The Board thus finds that all Hickson elements have been met, and the appeal is

accordingly granted to that extent.

ORDER

Service connection for Hepatitis C is granted.

      Barry F. Bohan

      Member, Board of Veterans' Appeals

IMPORTANT NOTICE:  We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision.  We are in the process of updating the form to reflect changes in the law effective on December 27, 2001.  See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001).  In the meanwhile, please note these important corrections to the advice in the form:

? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims."  (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court.  (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel.

? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.

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