BVA9500882 DOCKET NO. 93-09 885 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for alcoholism and drug abuse. 2. Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD Susan S. Toth, Associate Counsel INTRODUCTION The veteran had active service from July 1972 to May 1974. This matter arises from a rating decision of June 1992, whereby the Regional Office (RO) denied the veteran's April 1992 claim for service connection for a right knee disability, as well as alcohol and drug abuse which were considered to be of willful misconduct origin. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the RO erred in denying his service- connection claims. He asserts that he commenced the use of alcohol and drugs in service as a result of the stress he experienced. Accordingly, he argues that service connection is warranted for alcohol and drug dependency. He further asserts that he experienced a right knee injury in service (although the service medical records mistakenly indicated that the left knee was injured) that resulted in disability. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the veteran's claims for service connection for alcohol and drug dependency lack legal merit and that the preponderance of the evidence is against the veteran's claim for service connection for a right knee disability. FINDINGS OF FACT 1. Attempts to obtain all relevant evidence necessary for an equitable disposition of the veteran's appeal have been made by the RO. 2. The veteran's alcohol and drug dependency, as primary conditions, are of willful misconduct origin. 3. A disability of the right knee was first manifested many years after service. 4. Service medical records contain no reference to an injury of the right knee. CONCLUSIONS OF LAW 1. Compensation is not payable for alcohol and drug dependency which were the result of the veteran's own willful misconduct. 38 U.S.C.A. §§ 105(a), 1110 (West 1991) ; 38 C.F.R. § 3.301 (1993). 2. A disability of the right knee was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R.§ 3.303(d) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service, which was not the result of the veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.301(a). An injury or disease incurred during active military service will be deemed to have been incurred in line of duty and not the result of the veteran's own misconduct when the person was, at the time the injury was suffered or disease contracted, in active military service, unless such injury or disease was a result of the person's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C.A. § 105(a). The simple drinking of 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)(2). 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 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). Service connection may 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. 38 C.F.R. § 3.303(d). I. Service connection for alcohol and drug dependency. The veteran's service medical records reflect no complaints, findings or diagnoses relative to alcohol or drug dependency. The first indication of record that the veteran had a problem with drug or alcohol abuse dates back to 1991. A VA hospital summary is of record which reflects inpatient treatment during December 1991 for cocaine abuse. It was noted therein that the veteran had a previous history of cocaine and marijuana abuse and that he reported occasional alcohol use. A VA outpatient record which immediately preceded the hospitalization indicated that the veteran had 2 to 3 drinks each night and that he started using cocaine approximately one year ago. The diagnoses provided were cocaine abuse, major depressive episode and rule out alcohol dependence. A VA hospital summary reflecting inpatient treatment from January to February 1992 contained diagnoses of alcohol dependency with a history of alcohol use since his teens, cocaine dependency and tobacco dependency. The sole relevant diagnosis provided upon VA examination in June 1992 was alcohol dependency, in remission. The veteran asserts that his alcohol and drug use originated in service due to the stress he experienced. However, alcohol dependence is deemed by statute to be the result of willful misconduct and cannot itself be service connected. See Gabrielson v. Brown, 7 Vet.App. 36, 41 (1994). Drug abuse is also considered to be of willful misconduct origin and it also may not be service connected as a primary condition. See 38 U.S.C.A. § 105(a), 1110. The United States Court of Veterans Appeals has held that in a case where the law is dispositive of the claim, the claim should be denied because of lack of entitlement under the law. Sabonis v. Brown, 6 Vet.App. 426, 430 91994). Since the veteran seeks service connection for alcohol and drug dependence on a primary basis and service connection is not in effect for any other disability, the claims must be denied pursuant to the applicable criteria. II. Service connection for a right knee disability. The veteran satisfied the threshold requirement of presenting a well-grounded claim within the meaning of 38 U.S.C.A. § 5107(a). That is, he set forth a claim which was plausible. The Board is also satisfied that all relevant evidence has been properly developed, and that no further assistance is required to comply with the Department of Veterans Affairs' (VA) duty to assist as mandated by 38 U.S.C.A. § 5107(a). The veteran filed a claim for service connection for disability of the right knee in April 1992. He reported that he was treated for the condition in January 1974, while he was in service. The veteran's service medical records, however, fail to reveal treatment, complaints or diagnoses relative to the right knee. The veteran was seen in January 1974 for a basketball injury to the left knee. Since the injury, the veteran had pain over the medial joint line with one episode of limping. Physical examination revealed a left sided antalgic gain, normal range of motion, and no effusion. The collateral and cruciate ligaments were intact. There was moderate pain along the medial side of the knee on valgus stress. The treatment notes indicated that knee films were normal. The diagnostic impression provided was left knee medial collateral ligament sprain versus torn medial meniscus. Less than 2 weeks later, the veteran was seen complaining of pain in the medial aspect of the left knee. It was indicated that valgus and varus stress caused the pain. The diagnostic impression again was medial collateral ligament sprain of the left knee. A physical profile serial report indicated that the individual defect which would keep the veteran in a splint was a medial collateral ligament sprain of the left knee. Later in February 1974, the veteran was seen complaining that he wanted the cast removed. The diagnostic impression was medial collateral ligament sprain of the left knee. The medical evidence dated after discharge reveals that the veteran has a current disability of the right knee only. VA Hospital records dated in December 1991 and from January to February of 1992 contained notation in the medical history sections that the veteran had a history of torn ligament in the right knee during the mid-1970's. Bilateral knee X-rays of December 1991 indicated that there were no significant abnormalities. Upon VA examination in June 1992, the diagnosis was internal derangement on the right side. X-ray studies of the knees were within normal limits. The veteran asserts that he injured his right knee in service, however, the evidence elucidated above does not support that assertion. Four entries in the veteran's service medical records indicate that he had a disorder of the left knee. The Board might find it plausible if the medical officer made an inadvertent mistake on one occasion by indicating that the left knee was injured and not the right. However, four entries which refer solely to injury of the left knee tend to indicate that the veteran actually suffered an injury to the left knee in service. Under the circumstances, more credibility is given to the contemporaneously prepared medical records than the current statements by the veteran which are made in conjunction with a claim for monetary benefits. In sum, the weight of the evidence is against the proposition that all four entries in service made over a period of two months are incorrect in referring to injury of the left knee. The service medical records are silent with respect to an injury of the right knee. ORDER Entitlement to service connection for alcohol and drug dependency is denied. Entitlement to service connection for a right knee disability is denied. C. W. SYMANSKI Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.