Citation Nr: 1430167 Decision Date: 07/03/14 Archive Date: 07/10/14 DOCKET NO. 09-43 793 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to an increased evaluation for service connected depressive neurosis, currently evaluated at 50 percent disabling ("acquired psychiatric disability"). 2. Entitlement to a compensable rating for service connected gunshot wound residuals, right forehead. 3. Entitlement to a compensable rating for service connected depressed skull fracture. 4. Entitlement to service connection for Hepatitis C. 5. Entitlement to service connection for posttraumatic stress disorder ("PTSD"). 6. Entitlement to a total rating based on individual unemployability due to service-connected disability ("TDIU"). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Anderson, Associate Counsel INTRODUCTION The Veteran had active military service from July 1967 to April 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office in St. Paul, Minnesota. The issues of an acquired psychiatric disorder, PTSD, gunshot wound residuals, depressed skull fracture, and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Hepatitis C was not manifested during active service and any current Hepatitis C disability is not otherwise etiologically related to the Veteran's active service. CONCLUSION OF LAW The Veteran's Hepatitis C disability was not incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSIONS Under 38 U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. In Timberlake v. Gober, 14 Vet. App. 122 (2000), the Court held, in pertinent part, that the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. The Federal Circuit has also held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). 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. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder, there must be competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2013). The Veteran asserts entitlement to service connection for Hepatitis C. There is evidence of record that the Veteran is currently diagnosed with Hepatitis C. The first element of service connection is well established. However, the competent, probative evidence of record does not etiologically link the Veteran's current disability to service or any incident therein. A review of the Veteran's service treatment records are void of any diagnosis of Hepatitis C or treatment for such disability in service. The evidence of record shows that the Veteran was first diagnosed with Hepatitis C in February 2002 at the VA in Minneapolis, which is more than 30 years after service discharge. There is no other evidence of record that supports an earlier diagnosis. The Board may, and will, consider in its assessment of a service connection the passage of a lengthy period of time wherein the Veteran has not complained of the malady at issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (noting that it was proper to consider the Veteran's entire medical history, including the lengthy period of absence of complaint with respect to the condition he now raised). Since there is no medical evidence of a diagnosis in active service the threshold question is whether there is sufficient medical evidence to establish an etiological link between the Veteran's current diagnosis and his active service. The preponderance of the evidence is against this aspect of the Veteran's claim. There is no evidence suggesting such a link between the current Hepatitis C and any incident of service. Without such a such a link that his current Hepatitis C diagnosis is related to service and given the lengthy passage of time between the Veteran's separation from service and a diagnosis, the Veteran's claim must be denied. As a final matter, the Board acknowledges that the Veteran believes that his Hepatitis C is related to his active service. However, the Board notes that he has offered no explanation as to why he believes it started or was caused by service. Furthermore, while a layperson can at times provide a diagnosis or even a nexus opinion, in the present case Hepatitis C is a complex medical condition that would require laboratory and diagnostic testing to correctly diagnose. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In such a case, a lay person is not competent to diagnose the medical disorder or render an opinion as to the cause or etiology of any current disorder because they do not have the requisite medical knowledge or training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Accordingly, the Board concludes that a preponderance of the evidence is against the claim for service connection for Hepatitis C, and the benefit of the doubt rule does not apply. See 38 US.C.A. § 5107 (West 2002). Duty to Assist and Notify When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA's duty to notify has been satisfied through a notice letter dated October 2008 that fully addressed all notice elements. This letter informed the Veteran of what evidence was required to substantiate his claim, and of the Veteran's and VA's respective duties for obtaining evidence. The Veteran was requested to submit any evidence in his possession and has been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond. In light of the above, the Board finds that all notices required by VCAA and implementing regulations were furnished to the Veteran and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2012). Service treatment records are associated with claims file. All post-service VA and private treatment records identified by the Veteran have also been obtained. The Veteran has not identified any additional records that should be obtained prior to a Board decision. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159 (c)(4) (2012); Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002). A VA examination was not provided in conjunction with the Veteran's service connection claim for Hepatitis C, and the Board notes that the evidence of record does not warrant one. See 38 C.F.R. § 3.159(c)(4). VA has a duty to provide a VA examination when the record lacks evidence to decide the Veteran's claim and there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. Id.; see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). In the present case, there is nothing in the record, other than the Veteran's own lay statements, that indicates a nexus of the Veteran's currently diagnosed Hepatitis C and an in-service incident or injury, and a VA examination could not serve to establish an in-service event actually occurred. Accordingly, the Board finds that the low threshold of McLendon is not met, and a VA examination is not necessary. In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. ORDER Service connection for Hepatitis C is denied. REMAND The Veteran claims entitlement to an increased evaluation for his service connected depressive neurosis; gunshot wound residuals; and depressed skull fracture as well as entitlement to service connection for PTSD. The Veteran's last VA psychiatric examination was in August 2009, a period of almost five years. The Veteran has not been re-evaluated for his depressed skull fracture and residuals, gunshot wound right forehead since he was service connected for these disabilities in 1969. In August 2009, the Veteran's former wife sent in a buddy statement in support of the Veteran's claim discussing how the Veteran's service connected acquired psychiatric disorder has affected the Veteran's life. Further, she comments that the Veteran may have exhibited certain PTSD symptoms during their marriage that may be related to service. For instance, she states that the Veteran awakened some nights screaming and sweating, and that he suffers from mistrust and anger. Additionally, the Veteran provided statements in support of his claim that he feels as though he suffers from PTSD symptoms. He states that he suffers from nightmares and extreme depression. At the Veteran's examination in August 2009 for his service connected acquired psychiatric disorder, the examiner did not discuss the Veteran's anger issues, nightmares, or night sweats. In light of the Veteran's contentions of his deteriorating mental health, statements made by his former wife, the fact that he has not been provided a VA examination in relation to his PTSD claim, and the length of time since his last mental health examination, the Board finds a new mental health examination, to include PTSD, is warranted. Further, as the Veteran's other service connected disabilities have not been re-evaluated for more than 40 years, the Board is remanding for an examination. See 38 C.F.R. § 3.159; see also VAOPGCPREC 11-95 (1995) (a new examination is appropriate when there is an assertion of an increase in severity since the last examination); Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (holding that VA's statutory duty to assist includes a thorough and contemporaneous medical examination); McClendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran was scheduled for a VA examination to determine the current severity for his depressed skill facture and residuals of his gunshot wound. The Veteran cancelled the examination and stated that he would not be able to undergo a VA examination in Florida where he was residing. Subsequently, an examination was rescheduled with the VA in Minneapolis, and the Veteran failed to show and did not provide good cause for doing so. See 38 C.F.R. § 3.655 (noting that failure to report to an examination without good cause has consequences, including deciding the claim based upon the evidence in record and in some cases denying the claim). The Board is remanding this claim in order to afford the Veteran one last opportunity to have a new examination, as the record does not include the letters advising the Veteran of the examinations and the record is therefore unclear whether the Veteran was advised of the consequences of failing to report to a scheduled examination. In scheduling this examination, the Veteran should clearly be advised that if he fails to show for the scheduled examination, his increased rating claims will be denied, and his claim for service connection for PTSD will be evaluated based on the evidence of record. See 38 C.F.R. § 3.655. The Veteran's claim for TDIU is impacted by the outcome if his claims for an increased rating for his acquired psychiatric disorder, depressed skull fracture and residuals of his gunshot wound, as well as his service connection claim for PTSD and therefore, is inextricably intertwined with these issues. The Court has held that all issues "inextricably intertwined" with an issue certified for appeal are to be identified and developed prior to appellate review. Harris v. Derwinski, 1 Vet. App. 180 (1991). Therefore, the TDIU claim must be remanded to the AOJ in accordance with the holding in Harris to allow the AOJ to fully develop and adjudicate any outstanding claims. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA psychiatric examination to include an examination for PTSD. The current nature of and likely etiology of any previously undiagnosed psychiatric disability should be determined, as well as the current severity of the Veteran's service connected acquired psychiatric disorder. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examination report must include a full psychiatric diagnostic assessment in accordance with the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (4th ed. 1994) (DSM-IV). The examiner should provide opinions as to the following: a. In regards to the currently diagnosed acquired psychiatric disorder, the examiner is to identify the nature, frequency, and severity of all current manifestations of this condition. The examination report must include a Global Assessment of Functioning (GAF) score on Axis V and an explanation of the significance of the current levels of psychological, social, and occupational functioning which support the score. The examiner is to comment specifically on the impact of the Veteran's acquired psychiatric disorder upon his social and industrial activities, including his employability and a discussion of pertinent symptomatology. b. In regards to any other potentially diagnosed acquired psychiatric disorder, to include PTSD, the examiner must provide a medical opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed acquired psychiatric disorder, began during active service or is related to any incident of service to include for PTSD, "fear of hostile military or terrorist activity" as defined by the revised provisions of 38 C.F.R. § 3.304(f)(3). The examiner is asked to specifically comment on the impact the gunshot wound the Veteran received in service, as a result of friendly fire, may have had on his mental health and also the Veteran's claims that he suffers nightmares, night sweats, anger, and mistrust of people. A thorough rationale should be provided for all opinions expressed. 2. Schedule the Veteran for an appropriate medical evaluation for his depressed skull fracture, and his gunshot wound residuals, right forehead. The examiner is requested to evaluate the current severity of both of these disabilities, including any relevant symptomatology and the effect that these disabilities may have on his employability. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. 3. The Veteran is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause include denial of the increased rating claims and requires the service connection claims be decided on the record. 38 C.F.R. § 3.158, 3.655 (2013). 4. Following completion of the above and any other development deemed proper, readjudicate the Veteran's claims, including the claim for a TDIU. If any of the benefits sought on appeal remain denied, provide the Veteran and his representative a Supplemental Statement of the Case. 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. 2013). ______________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs