Citation Nr: 1552751 Decision Date: 12/17/15 Archive Date: 12/23/15 DOCKET NO. 13-09 179A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and major depressive disorder (MDD). 2. Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: Margaret A. Costello, Attorney at Law WITNESSES AT HEARING ON APPEAL Appellant, J.P., and S.H. ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran had active service from November 1973 to December 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision issued by the RO. The Veteran testified before the undersigned in November 2014 at the RO, and a transcript of the hearing is associated with the claims file. FINDINGS OF FACT 1. The Veteran's acquired psychiatric disorder, to include PTSD and MDD, had onset during service. 2. Hepatitis C has been attributed to service. CONCLUSIONS OF LAW 1. An acquired psychiatric disorder, to include PTSD and MDD, was incurred in service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125a (2015). 2. Hepatitis C was incurred in service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. There are particular requirements for establishing entitlement to service connection for PTSD in 38 C.F.R. § 3.304(f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Those requirements are: (1) a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor. 38 C.F.R. § 3.304(f). If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(3). "Fear of hostile military activity" is defined to mean that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. Id. The list of examples of such an event or circumstance specifically includes incoming mortar, rocket, and sniper fire. Id. Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Acquired Psychiatric Disorder At the outset, the Board notes that the provisions of 38 U.S.C.A. § 1154(b) do not apply, as it has not been claimed that the disability was incurred while engaging in combat. The Veteran asserts that his current acquired psychiatric disability onset during his period of active service. A February 1974 service treatment record reflects that the Veteran was having personal problems. He was referred to mental health clinic for treatment. A subsequent February 1974 mental hygiene service treatment record reflects the psychiatrist's assessment that the Veteran displayed a history of impulsiveness and instability that showed an inadequate personality manifesting immature characteristics. A September 2009 VA PTSD consult record reflects that the Veteran did not meet criteria for military PTSD. The examiner noted that the Veteran's presentation was angry, hostile and depressed. He was never in a combat zone and the trauma he conveyed and his responses to it did not meet criteria for military PTSD. However, the examiner noted that the Veteran reported that he was emotionally and physically abused by his alcoholic father. The Veteran also reported that he was sexually abused by the owner of a pizzeria when he was 14-15 but he did not respond in a manner consistent with victims of child sexual abuse. The Veteran had also spent time in Juvenile for assault. His mother committed suicide on his birthday when he was 20. The examiner concluded that based on his report of his childhood experiences there appeared to be some childhood trauma and treatment in the mental health clinic was strongly recommended. An April 2010 psychiatric treatment note reflects a diagnosis of anxiety disorder, NOS (not otherwise specified). A May 2010 psychiatric treatment note reflects a diagnosis of depression, NOS. A March 2011 report of VA examination reflects the psychiatrist's assessment that the Veteran reported chronic symptoms of depression consistent with a diagnosis of dysthymia. His diagnosis was complicated by his heavy alcohol use from childhood until 1989. The Veteran reported that his depressive symptoms began even before he entered service. The psychiatrist noted that the Veteran received some mental health care in service but there was no clear evidence of him being depressed at that time. The psychiatrist noted that in service the Veteran was diagnosed with personality issues labeled as "inadequate personality." The examiner concluded that there was no clear evidence that the Veteran's psychiatric disorder onset in service. Rather, the psychiatrist found that his psychiatric disorder likely started before service and continued during service. Thus, the psychiatrist opined that it was less likely that the Veteran's chronic depression was caused by or a result of his service. The December 2011 report of private psychological evaluation reflects that the Veteran's scores were significantly elevated in the scales of PTSD, major depression and anxiety. The psychologist found that although the Veteran was not in combat and did not witness the atrocities of war, he was involved in hostile military activity and experienced a Veterans fear of hostile military activity. To that end, he was involved in alerts, preparing heat seeking missiles for launch. There was always a fear of a military attack when he was stationed in Germany. The psychologist noted that the Veteran's military records indicated personal problems and the Veteran had difficulty with his appearance, being negligent attending alerts, being apathetic in carrying out his duties of attending to missiles and firearms. The psychologist concluded that it was more likely than not that the Veteran's time and experience in the Army resulted in his diagnosis of PTSD. In a December 2011, statement, the Veteran's psychotherapist acknowledged that the Veteran suffered with depression as a child but concluded that the Veteran had PTSD and dysthymic disorder, a condition that often developed in people who have had PTSD for a long period of time and have not gotten treatment for it. The psychotherapist explained that the dysthymia insured that a person would not re-expose themselves to things that trigger PTSD symptoms. The psychotherapist acknowledged that there was some overlap with PTSD symptoms but the Veteran clearly suffered severely from both psychiatric disorders. The psychotherapist concluded that it was likely that the Veteran's PTSD and dysthymia were exacerbated by his experiences during service. The therapist explained that PTSD can be brought on by a chain of less extreme events that a person is not prepared for at the time they occurred. Traumatized is the emotional condition of a person who experienced something emotionally overwhelming without the ability to cope with it. The therapist concluded while the Veteran was traumatized by childhood events, including growing up in a destructive, abusive and dysfunctional environment, his condition was exacerbated by his experiences in service. In a September 2012 report of VA examination, the psychologist opined that the Veteran's depression occurred long before his entry into service. To that end, the Veteran gave a detailed social history riddled with numerous pre-event factors of exposure to severe adverse life events involving childhood victimization, including physical abuse at the hands of his father, emotional aloofness by his mother and witnessing significant domestic abuse in the home. The psychologist concluded that there had been significant family instability, poor socio-emotional adjustment with his peers, school disruption and chronic family violence that fueled the Veteran's development of depression. Further, the Veteran had academic and behavioral difficulties and the absence of social support to help him out during the difficult times. All of these factors contributed to the Veteran's depression. The psychologist found that the Veteran did not meet all the criteria to justify a compelling diagnosis of PTSD and opined that there was no condition of PTSD that could be linked to military service. However, the psychologist concluded that the Veteran's military service/experiences may have aggravated the Veteran's diagnosed dysthymic disorder. Again, the Veteran contends that he is entitled to service connection for an acquired psychiatric disorder, as he believes that it onset during his period of active service. Every veteran is presumed to have been in sound condition at entry into service, except as to defects, infirmities, or disorders noted at the time of such entry, or where clear and unmistakable evidence demonstrates that the injury or disease existed before entry and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). Determination of the existence of a preexisting condition may be supported by contemporaneous evidence, or recorded history in the record, which provides a sufficient factual predicate to support a medical opinion, see Miller v. West, 11 Vet. App. 345, 348 (1998), or a later medical opinion based upon statements made by the Veteran about the pre-service history of the condition. Harris v. West, 203 F.3d 1347 (Fed. Cir. 2000). The burden is on VA to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both preexisting and not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1094-96 (Fed. Cir. 2004). Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered aggravation in service unless the underlying disability, as opposed to the symptoms of that disability, has worsened. Beverly v. Brown, 9 Vet. App. 402, 405 (1996) (citing Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991)). In this case, the presumption of soundness is applicable as there is no evidence that an acquired psychiatric disorder was noted at the Veteran's entry onto active service. Further, nothing in the February 1974 service treatment records indicate that the Veteran's acquired psychiatric disorder preexisted his period of active service. Therefore, the Board cannot find that there is clear and unmistakable evidence that an acquired psychiatric disorder preexisted service. The fact that he had depressive symptoms prior to service does not establish that he had an acquired psychiatric disorder prior to service. The Veteran's service treatment records from his period of active service reflect that he received psychiatric treatment for "personal problems." Mental evaluation showed that the Veteran displayed a history of impulsiveness and instability that showed an inadequate personality manifesting immature characteristics. Post-service treatment records reflect diagnoses of anxiety disorder, NOS; depression, NOS; dysthymia; and PTSD. In the March 2011 report of VA examination, the psychiatrist found that the Veteran's psychiatric disorder likely started before service and continued during service and opined that it was less likely that the Veteran's chronic depression was caused by or a result of his service. In the December 2011 report of private psychological evaluation, the psychologist concluded that it was more likely than not that the Veteran's time and experience in the Army resulted in his diagnosis of PTSD. In a subsequent December 2011 private treatment record, the psychotherapist concluded that it was likely that the Veteran's PTSD and dysthymia were exacerbated by his experiences during service. In the September 2012 report of VA examination, the psychologist opined that although the Veteran's depression occurred long before his entry into service, his military service/experiences may have aggravated his diagnosed dysthymic disorder. In order to rebut the presumption of soundness, there must be clear and unmistakable evidence that the disorder preexisted service. As noted, there is no such evidence of record. Even if the Board were to find that an acquired psychiatric disorder preexisted the Veteran's period of active service, to rebut the presumption of soundness there must be clear and unmistakable evidence that the disorder did not increase in severity. Here, during active service there was evidence that he received psychiatric treatment for personal problems determined to be impulsiveness and instability that showed inadequate personality manifesting immature characteristics. Nothing in the service records or post service records establishes that there was no increase in severity or that any change was due to natural progress. Rather, in cumulation, the post-service evidence concludes that Veteran's service and experiences aggravated the Veteran's diagnosed acquired psychiatric disorder. Under the circumstances, since the Board cannot establish by clear and unmistakable evidence that an acquired psychiatric disorder preexisted service and was not aggravated therein, service connection is warranted. Hepatitis C The Veteran contends that he has hepatitis C that is related to service. He asserts that it is due to either his inoculations, his dental treatment, or living in close quarters with others. A review of the claims file reveals that there are none of the other known risk factors evident in the Veteran's history. There is no evidence of a blood transfusion or organ transplant, exposure to blood, intravenous drug use, use of intranasal cocaine, or high-risk sexual activity. As noted above, he does report immunizations during service and sharing of close quarters with others during service. In a January 2014 written statement, J.B., M.D. indicated that he reviewed the Veteran's medical records. He noted that the Veteran's biopsy proved his had chronic hepatitis C. It was not clear when exactly he contracted the hepatitis C. During service, the Veteran experienced a number of situations that could potentially have infected him with hepatitis C. These include several immunizations with jet gun injectors, dental care, and close living situations including sharing of personal hygiene items. He had no known exposure to hepatitis C outside of service and none of the traditional risk factors for hepatitis C. As such, Dr. B found that it was as likely as not that he contracted hepatitis C while in service. He provided this opinion despite also noting that the transmission rate of each of the risk factors identified by the Veteran was low. Nevertheless, Dr. B provided an adequate opinion that is consistent with the record, to include the absence of any other risk factors than the ones described by the Veteran in service. Although the Veteran appears to have undergone alcohol abuse treatment, there is no evidence of intravenous drug use or intranasal cocaine use and no evidence of any other risk factors. Dr. B provided a sufficiently definitive opinion along with a rationale that is supported by the credible and accurate evidence of record. There is no competent opinion stating otherwise. As such, the Board finds that the evidence is at least evenly balanced as to whether the Veteran's hepatitis C was contracted due to his service. Therefore, the claim is granted. ORDER Service connection for an acquired psychiatric disorder, to include PTSD and MDD is granted. Service connection for hepatitis C is granted. ______________________________________________ R. FEINBERG Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs