Citation Nr: 1539276	
Decision Date: 09/14/15    Archive Date: 09/24/15

DOCKET NO.  07-15 867	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1. Entitlement to service connection for seizures, to include from exposure to herbicides and as secondary to service-connected diabetes mellitus II (diabetes).

2. Entitlement to service connection for headaches, including herbicide exposure and as secondary to service-connected posttraumatic stress disorder (PTSD).

3. Entitlement to service connection for hepatitis C with liver damage.  


REPRESENTATION

Appellant represented by:	Alabama Department of Veterans Affairs


ATTORNEY FOR THE BOARD

A.P. Armstrong, Associate Counsel


INTRODUCTION

The Veteran served on active duty from June 1967 to May 1969.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.  The Board previously considered and remanded these issues in March 2009, January 2012, and July 2013.


FINDINGS OF FACT

1. The weight of the evidence is against finding a relationship between the current seizure disorder and service, herbicide exposure, or diabetes.

2. The weight of the evidence is against finding a relationship between current headaches and service, herbicide exposure, diabetes, or PTSD.

3. The weight of the evidence is against finding a relationship between hepatitis C and service.


CONCLUSIONS OF LAW

1. The criteria for an award of service connection for seizure disorder have not been met.  38 U.S.C.A. §§ 1110, 5103 (West 2014); 38 C.F.R. § 3.303 (2014).

2. The criteria for an award of service connection for headaches have been met.  38 U.S.C.A. §§ 1110, 5103, 5107 (West 2014); 38 C.F.R. § 3.303 (2014).

3. The criteria for an award of service connection for hepatitis C have not been met.  38 U.S.C.A. §§ 1110, 5103, 5107 (West 2014); 38 C.F.R. § 3.303 (2014).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Procedural duties

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim.  See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014).

In October 2004 and January 2005, the RO sent the Veteran letters, providing notice that satisfied the requirements of the VCAA. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  No additional notice is required.  

Next, VA has a duty to assist the Veteran in the development of claims.  This duty includes assisting him in the procurement of pertinent treatment records and providing an examination when necessary.  38 C.F.R. § 3.159.

All pertinent, identified medical records have been obtained and considered.  VA provided examinations for hepatitis C, seizures, and headaches in November 2009, August 2011, February 2012, and December 2014.  The examinations were thorough and detailed, and the collective medical opinions are adequate to address theories of entitlement to service connection. 

Following the Board's remand directives, the AOJ obtained a VA examination and medical opinion for the claims.  The examiner addressed the questions posed by the Board.  In so doing, the RO substantially complied with the remand directives, and a further remand is not required.  See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Stegall v. West, 11 Vet. App. 268 (1998).  The Board has carefully reviewed the record and determines there is no additional development needed for the claims decided herein.  

As VA has satisfied its duties to notify and assist the Veteran, no further notice or assistance is required.  See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159.

II. Service connection

Service connection will be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  To establish entitlement to service-connected compensation benefits, a Veteran must show "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called 'nexus' requirement."  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010).  

Alternatively, service connection may be granted on a secondary basis for a disability that is proximately due to or the result of (caused) or permanently worsened beyond its natural progression (aggravated) by a service-connected disease or injury.  Allen v. Brown, 7 Vet. App. 439, 448-49 (1995) (en banc); 38 C.F.R. § 3.310.

If a veteran served in the Republic of Vietnam during the period from January 9, 1962, to May 7, 1975, he or she will be presumed to have been exposed to herbicides during such service.  38 C.F.R. §§ 3.307(a)(6), 3.309(e).  Certain diseases have been shown to have a higher incidence in veterans exposed to herbicides, and VA presumes those disease are related to exposure.  Id.    

For claims filed after October 31, 1990, direct service connection may be granted only when a disability was incurred or aggravated in the line of duty, and was not the result of the Veteran's own willful misconduct or the result of the Veteran's abuse of alcohol or drugs.  38 U.S.C.A. § 105; 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.  38 C.F.R. § 3.301(c)(3).  An injury or disease incurred during active duty shall not be deemed to have been incurred in the line of duty if such injury or disease was a result of the abuse of alcohol or drugs by the claimant.  38 C.F.R. § 3.301(d). 

The Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.

The Veteran is competent to describe symptoms observable to his senses but not to determine the cause of seizures, hepatitis C, or headaches as this requires specialized medical knowledge and training to understand the complex nature of infectious diseases and the neurological system.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  The Board finds him credible, as his statements have been detailed and generally consistent.

Seizures

Based on the evidence, the Board finds that the criteria for service connection for seizures have not been met.  See 38 C.F.R. § 3.303.

The evidence shows that the Veteran has a current seizure disorder.  The examiners in November 2009, February 2012, and December 2014 all diagnosed the Veteran with tonic-clonic seizures.  Similarly, VA and private records show treatment and management of the seizure disorder.  

However, the evidence does not show that the current seizure disorder is related to an in-service incurrence or service-connected disability.  Service treatment records are silent for any seizure activity or diagnosis.  During the May 1969 separation examination, the examiner and the Veteran did not indicate any seizure problems.  The Veteran contends that he had "seizure-like" symptoms in service or alternatively that his seizure disorder is related to in-service headaches and trauma, acoustic trauma, herbicide exposure, or service-connected diabetes.  Despite the Board's classification of the issue in July 2013, the Veteran has not asserted that his seizures are related to PTSD nor is there any evidence to that effect.  See Correspondence May 2007, April 2008, November 2011; Treatment records and VA examinations.  

The weight of the competent evidence is against finding a relationship between seizures and service.  The evidence shows that the Veteran was first diagnosed with a seizure disorder in the late 1990s, approximately 30 years after service.  See VA treatment September 2003, September 2004.  The Veteran reported boxing while in service.  However, during August 2006 treatment, he denied a history of head trauma.  The November 2009 examiner provided a negative opinion and cited a computed tomography scan of the Veteran's brain that showed no evidence of a significant brain injury in the past.  The February 2012 examiner found seizures less likely than not related to service, because there was no evidence of seizure activity in service and the symptoms the Veteran reported as associated with seizures were nonspecific, not consistent with seizures, and due to other events, injuries, or infections.  Both examiners noted the long period of time between service and the onset of symptoms as evidence that seizures were less likely than not related to the military.  Similarly, the December 2014 examiner concluded that seizures were less likely as not related to service.  The examiner supported the conclusion with the lack of evidence of serious injury or seizures while in service and treatment records linking seizures to alcohol abuse.  Indeed, an April 2013 treatment record notes seizures in the past from alcohol withdrawal.  Both the February 2012 and December 2014 examiners found the most likely etiology of the Veteran's seizure disorder was the well-documented issues with substance abuse.  VA and private records show a history of treatment for substance abuse.  The Board notes that even if the Veteran's substance abuse began in service, service connection for disability from substance abuse is prohibited.  See 38 C.F.R. § 3.301.  

With regard to herbicide exposure and service-connected diabetes, the evidence is also against a causal connection between the current seizures and active service.  The Veteran served in the Republic of Vietnam within the statutory periods and is presumed to have been exposed to herbicides.  See 38 C.F.R. § 3.307(a)(6).  Nevertheless, seizure disorder is not among the diseases deemed related to herbicide exposure.  See 38 C.F.R. § 3.309(e).  Further, the February 2012 and December 2014 examiners concluded that seizures were not related to herbicides and instead were most likely related to substance abuse.  The December 2014 examiner noted no direct relationship between herbicides and seizures.  Additionally, the examiners concluded that service-connected diabetes was less likely than not related to seizures because the seizure disorder preceded diabetes.  The December 2014 examiner elaborated explaining that diabetes cannot clinically cause an aggravation of seizure disorder.  Hypoglycemia related to diabetes might cause acute seizure activity, but it does not lead to a seizure disorder, which the Veteran has.  There is also no indication of a seizure related to hypoglycemia.  See December 2014 examination.

The Board has considered the Veteran's assertions of causation but notes that he is not competent to determine the etiology of his seizure disorder.  The lack of in-service seizure activity, intervening 30 years before diagnosis, and the negative opinions with alternate etiology weigh against the Veteran's arguments.  See 38 C.F.R. § 3.102.  Thus, the Board finds that seizures are not related to service, herbicide exposure, or diabetes, and service connection cannot be established.  See 38 C.F.R. § 3.303.   

Headaches

After review of the evidence, the Board finds that the criteria for service connection for headaches have not been met.  See 38 C.F.R. § 3.303.   

First, the evidence shows current headaches.  The November 2009 examiner diagnosed sinus headaches.  In February 2012, the examiner diagnosed tension headaches beginning in the 1990s.  The December 2014 examiner also diagnosed tension headaches.  VA records show treatment for sinus headaches.

Second, the evidence shows in-service complaints of headaches but not a chronic headache disability.  In statements to VA, the Veteran reported having headaches in service associated with combat stress and head trauma.  There is no record of head trauma in service treatment records, but records show headaches.  A questionnaire dated July 1967 notes severe or frequent headaches.  November 1967 treatment shows a complaint of frontal headaches and dizziness.  The examiner in the May 1969 separation examination found a normal neurologic system.  Similarly, the Veteran marked no frequent or severe headaches on his separation questionnaire.  Thus, the in-service evidence shows acute headaches but no persistent problem at separation or diagnosis of a chronic disability.  

Additionally, the evidence fails to show a causal connection to in-service headaches, herbicide exposure, or service-connected PTSD.  In statements to VA, the Veteran reported having headaches for 35 years after service.  However, during September 2003 and February 2004 VA treatment, the Veteran denied headaches.    The VA examiners also noted the onset of the current headaches as the 1990s, almost 30 years after service.  A March 2003 treating provider diagnosed sinus headaches.  The November 2009 VA examiner concluded that headaches were less likely than not related to service and were more likely due to sinus problems.  She explained that the Veteran's headaches had a more recent onset than would be expected from military service.  The February 2012 examiner agreed and found that all headaches in service were due to etiologies other than a primary neurologic condition, like injuries, and current tension headaches are associated with rhinitis.  The examiner also noted the manifestation and diagnosis of current tension headaches was not until decades after service.  Finally, the December 2014 examiner concluded that headaches were less likely than not related to service finding the lack of record of an ongoing headache syndrome between the 1960s and 2000s outweighed the Veteran's subsequent reports of continuous headaches.  

The evidence is also against finding that current headaches are related to herbicide exposure.  As discussed above, the Veteran is presumed exposed to herbicides in Vietnam.  See 38 C.F.R. § 3.307(a)(6).  In a May 2007 statement, he asserted that "there is a statistical association of headaches being one of the suggested symptoms to suspect disease caused by dioxin and other herbicide exposure."  The statement did not cite a reference for this information, and headaches were not a disability sufficiently linked to herbicide exposure for presumptive service connection.  See 38 C.F.R. § 3.309(e).  In an April 2008 statement, the Veteran cites an article that said that veterans who sprayed each other directly with Agent Orange in a playful manner experienced headaches afterward.  The Veteran has not reported handling herbicides or his person being sprayed by concentrated herbicides.  Instead, the Veteran is presumed to be exposed to the chemical through being in Vietnam where it was used.  It is reasonable that someone sprayed at a close range by any chemical could experience acute headaches but that does not mean the chemical could cause a chronic headache disorder in other circumstances.  There was insufficient evidence to support a presumption of such a correlation to headaches.  Moreover, the information cited by the Veteran is not very probative, because the statements are generalizations and do not address his particular diagnosis and circumstances.  The VA examiner in December 2014 did consider the Veteran's particular case and found that his headache disorder is less likely than not related to herbicide exposure because there is no direct relationship between the two.  The other examiners and treating providers found current headaches more likely associated with sinus problems.  Therefore, service connection cannot be established based on herbicide exposure.             

Finally, the evidence does not show that headaches were caused by or aggravated by service-connected diabetes or PTSD.  The December 2014 VA examiner concluded that the Veteran's current headache disorder was less likely than not caused by or aggravated by his service-connected diabetes or PTSD.  The examiner explained that diabetes does not cause headaches.  The February 2012 examiner noted that headaches preceded diabetes.  Further, neither PTSD nor diabetes has any etiological relationship with headaches.  See December 2014 examination.  Again, the medical evidence of record shows the most likely etiology of the current headaches is sinus problems.  Therefore, a relationship between current headaches and diabetes or PTSD is not established.  

The Veteran was afforded the benefit of the doubt, and the Board considered his statement of continuous headaches.  See 38 C.F.R. § 3.102.  However, the negative medical opinions and alternate etiology outweigh the Veteran's arguments.  Thus, the Board finds that headaches are not related to service, herbicide exposure, or service-connected diabetes and PTSD, and service connection cannot be established.  See 38 C.F.R. § 3.303.  



Hepatitis C

The Board reviewed the file and finds that the criteria for service connection for hepatitis C have not been met.  See 38 C.F.R. § 3.303. 

The evidence shows hepatitis C currently.  The December 2014 VA examiner cited a diagnosis of hepatitis C in 2004 and noted associated cirrhosis of the liver.  In a November 2013 letter, Dr. M.J.H confirmed the diagnosis of hepatitis C with cirrhosis of the liver.

Next, the evidence supports some in-service risks for contracting hepatitis C.  The Veteran asserted exposure to hepatitis C in service through boxing with blood contact, vaccines and jet injected inoculations, unprotected sex, drug use, improperly cleaned dental equipment, Lyme disease, and herbicide exposure.  Service treatment from February 1968 notes a painful, swelling nose from boxing, and treatment from April 1969 shows a lower lip laceration.  This evidence and the Veteran's reports show that he boxed in service with the possibility of blood contact.  Service treatment records also document vaccines and immunizations.  Service records show treatment for sexually transmitted diseases supporting the contention that the Veteran had unprotected sex while in service.  While records show that the Veteran had dental work, typical protocol in the military would require the use of sterile equipment, and there is no incident report or other evidence that the Veteran was exposed to unclean equipment.  Thus, possible contraction of hepatitis through contaminated dental equipment is not supported by the evidence.  Service treatment records do not show a diagnosis of Lyme disease.  The December 2014 examiner agreed and further explained that Lyme disease does not cause hepatitis C.  Finally, as discussed above, the Veteran is presumed to have herbicide exposure.  See 38 C.F.R. § 3.307(a)(6).

The weight of the evidence is against finding that hepatitis C was contracted in service.  The Veteran asserts that symptoms such as poor appetite, fatigue, nausea, aching muscles and joints, light fever, abdominal discomfort, and abnormal albumin levels evidence that he had hepatitis C in service.  Service treatment records do not show diagnosis of hepatitis C or treatment for abnormal albumin levels or liver problems.  The three VA examiners also did not note abnormal albumin levels in service.  The other symptoms are so general and commonplace as to not be very probative in proving the existence of hepatitis C; they could just as easily be symptoms of many other ailments.  

The November 2009 VA examiner found that hepatitis C was likely due to post-service substance abuse and incarceration, predisposing him to the disease.  She reasoned that blood contact through fighting/boxing in service was relatively limited, unprotected sexual intercourse is less risky for males than a history of drug and alcohol abuse, there is no documentation of jet air guns transmitting hepatitis.  The February 2012 examiner reviewed the Veteran's statements of in-service risks and concluded that hepatitis C was less likely than not related to service because potential risks in service were minimal and after service substance abuse and incarceration are much higher risks.  He cited studies that found the combination of drug abuse and incarceration increased the risk of hepatitis C.  The Veteran reported being incarcerated for seven years.  See September 2009 treatment.  VA treatment from April 2013 notes hepatitis C as a problem related to substance abuse.  Finally, the December 2014 examiner also gave a negative opinion.  The examiner noted that while high risk sexual behavior and exposure to blood can be considered risk factors, there is no documentation that he acquired this infection in service.  

In the May 2007 statement, the Veteran argued that "there is a positive association that can be contributed to wartime exposure to herbicides and other toxins."  He did not cite any source for this information, and the statement is less probative because it does not address his specific circumstances.  Further, hepatitis C is not a disease known to have any correlation to herbicide exposure for a presumptive relationship.  See 38 C.F.R. § 3.309(e).  The December 2014 examiner explained that there was no etiological relationship between herbicides and hepatitis C.  The VA examiners did not note any correlation to herbicides and instead found the most likely cause of hepatitis C as substance abuse and incarceration.    

Regarding drugs, there is conflicting evidence on the extent of the Veteran's drug use.  During July 2004 VA treatment, the Veteran reported using cocaine in the past, smoking opium in Vietnam, and continuing to use drugs after Vietnam.  In a November 2011 statement, the Veteran again confirmed the use of cocaine and opium in-service.  Although the Veteran struggled with alcohol abuse, more recent VA treatment records show that he was not using drugs.  The last confirmed incident of marijuana use was 2006.  October 2004 treatment records note a report of IV drug use in the 1970s.  In the November 2011 statement, the Veteran denied ever using IV drugs, stated that the treatment records were wrong, and that he requested a transfer from the provider who created the false record.  With IV drug use aside, the evidence shows that the Veteran began using drugs and alcohol in service and continued after.  He later had significant treatment for substance abuse.  As such, the Veteran's use of drugs and alcohol in service was not isolated and infrequent but instead substance abuse outside the line of duty.  See 38 C.F.R. § 3.301.  Any disability, such as hepatitis C, resulting from his substance abuse may not be service-connected.  See id.      

In sum, the evidence is against finding a relationship between hepatitis C and activities in the line of duty.  38 C.F.R. §§ 3.102, 3.301, 3.303.  Service connection for hepatitis C is not established.  Id. 


ORDER

Service connection for seizures is denied.

Service connection for headaches is denied.

Service connection for hepatitis C and liver damage is denied.



____________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs