Citation Nr: 0810430 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 04-30 793 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for hepatitis C. 2. Entitlement to service connection for a psychiatric disability, claimed as depression. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Jeng, Associate Counsel INTRODUCTION The veteran had active duty from December 1965 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) from a September 2003 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2007, the Board remanded for further development. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the veteran's hepatitis C is related to his military service. 2. The preponderance of the evidence is against a finding that the veteran's psychiatric disability, claimed as depression, is related to his military service or that a psychosis was manifested within the first post service year. CONCLUSIONS OF LAW 1. Hepatitis C was not incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2007). 2. A psychiatric disability, claimed as depression, was not incurred in or aggravated by military service and a psychosis may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 1154 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist In correspondence dated in August 2003 and April 2007, the RO satisfied its duty to notify the veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2007). Specifically, the RO notified the veteran of: information and evidence necessary to substantiate the claims; information and evidence that VA would seek to provide; and information and evidence that the veteran was expected to provide. The veteran was essentially instructed to submit any evidence in his possession that pertained to his claims. In light of the Board's denial of the appellant's claim, no disability rating or effective date will be assigned, so there can be no possibility of any prejudice to the appellant under the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has done everything reasonably possible to assist the veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2007). Service medical records have been associated with the claims file. All identified and available treatment records have been secured. The veteran has been medically evaluated in conjunction with his hepatitis C claim and the evidence has shown that an opinion from an examination for the psychiatric disability claim would be speculative, as further discussed below. Thus, the duties to notify and assist have been met. Analysis When seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. 38 C.F.R. § 3.303(a). Where chronicity of a disease is not shown in service, service connection may yet be established by showing continuity of symptomatology between the currently claimed disability and a condition noted in service. 38 C.F.R. § 3.303(b). A combat veteran's assertions of an event during combat are to be presumed true if consistent with the time, place and circumstances of such service. See 38 U.S.C.A. § 1154(b); Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996). The veteran's DD Form 214 reflects his specialty was a rifleman and he received the Combat Action Ribbon and the Purple Heart Medal. The veteran is a combat veteran and so his assertions as to disability during combat are presumed true as they are consistent with his service. Hepatitis C The veteran essentially contends that he has Hepatitis C as a result of service. Specifically, he asserts that it was due to his combat wounds in Vietnam. The veteran has currently has hepatitis C as multiple records show a diagnosis of and/or treatment for hepatitis C. While the veteran has denied blood transfusions or tattoos, he has admitted to a history of IV drug abuse for 15 years. Service medical records are negative for findings of hepatitis C. The examination report at service discharge did not note any liver abnormalities. The veteran was first diagnosed with hepatitis C in 2002. VA afforded the veteran an examination in May 2007 for which the claims folder was reviewed in conjunction with the examination. The diagnosis was hepatitis C. The examiner pointed out that the veteran's most likely risk factors for the disability were intravenous drug use in the past, which was the most efficient means of transmission, and intranasal drug use, which has been associated to hepatitis C infection. While sexual means of transmission was low, it did occur and the veteran reported a history of promiscuity and sexually transmitted disease. The veteran also indicated blood to blood contact during active service secondary to shrapnel injury. The examiner found that since the veteran had several risk factors to acquiring hepatitis C, he could not establish which one was the most likely means to have caused infection. Given the veteran's history, the examiner opined that hepatitis C was less likely as not (50 percent probability) aggravated by military service. In conclusion, the examiner found that that in view of the multiple risk factors, he would have to resort to mere speculation to establish the etiology of hepatitis C. Based on the evidence, the Board finds that service connection is not warranted in this case. The veteran did not have hepatitis C in service and the first indication of a disability was not until 33 years after service discharge. In view of the lengthy period without treatment, there is no evidence of continuity of symptomatology and this weighs against the claim. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Board has taken into account the veteran's assertion as a combat veteran that he contracted hepatitis C due to combat. However, the weight of the evidence does not support his assertion. There is no competent medical nexus between current disability and service. Noting the veteran's multiple known risk factors for hepatitis C, the May 2007 VA examiner found that it was resorting to mere speculation to establish the etiology of hepatitis C. The examiner added that there was less than a 50 percent probability that hepatitis C was "aggravated by" service. The Board finds that the clear meaning of this opinion, when viewed in the context of the entire medical report, is that there is less than a 50 percent probability that hepatitis C is related to service. This opinion is unrebutted by conflicting competent evidence. In adjudicating this claim, the Board must assess the competence and credibility of the veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). Recently, in Barr v. Nicholson, 21 Vet. App. 303 (2007), the United States Court of Appeals for Veterans Claims (Court), citing Layno v. Brown, 6 Vet. App. 465, 467-69 (1994), emphasized that lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witnesses personal knowledge; see also 38 C.F.R. § 3.159(a)(2) (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In this capacity, the Board finds the veteran is competent to attest to his observations of his disorder. Layno; 38 C.F.R. § 3.159(a)(2). However, as a lay person, he is not competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder (i.e. that he currently has hepatitis C related to service) because he does not have the requisite medical expertise. See, e.g., See Routen v. Brown, 10 Vet. App. 183, 186 (1997); Espiritu v. Derwinski, 2 Vet.App. 492 (1992). As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Psychiatric disability If a psychosis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. This presumption does not apply in the present case as a disability did not manifest until many years after discharge, as discussed below. The veteran has a current psychiatric disability as multiple treatment records note treatment for depression. Service medical records are negative for any complaints or findings of a psychiatric disability. The examination at service discharge noted a normal psychiatric evaluation. The first indication a disability in the record was a March 1999 letter from a private practitioner noting that he had treated the veteran since May 1998 for a severe mental disorder. The veteran indicated to the practitioner that he dated on the onset of his disability to 1989 when his parents died and he had to resign his job to take care of his brother. Subsequently dated medical reports reflect further treatment for psychiatric disability, including major depression, but the evidence does not relate psychiatric disability to service. Based on the evidence, service connection is not warranted. Service medical records are negative for complaints or findings of a psychiatric disability and the first indication of a disability per the veteran's account was 20 years post- service discharge. In view of the lengthy period without treatment, there is no evidence of continuity of symptomatology and this weighs against the claim. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Furthermore, there is no nexus between service and current disability. In fact, by the veteran's own admission, his depression started in 1989 as a result of his parents' death, his resignation from a job, and his having to care for his brother. The Board declines to obtain a medical nexus opinion with respect to the veteran's service connection claim because there is no evidence of pertinent disability in service or for two decades following service. Thus, while there is current evidence of a psychiatric disability, there is no true indication that that a disability is associated with service. See Charles v. Principi, 16 Vet. App. 370 (2002). Indeed, in view of the absence of showing of a psychiatric disability in service, the lack of diagnosis of the claimed disability until several years post-service, and the veterans own statements as to the cause of his disability, any opinion relating pertinent disability to service would certainly be speculative. However, service connection may not be based on a resort to pure speculation or even remote possibility. See 38 C.F.R. § 3.102. The duty to assist is not invoked, even under Charles, where "no reasonable possibility exists that such assistance would aid in substantiating the claim." 38 U.S.C.A. 5103A(a)(2). The Board finds the veteran is competent to attest to his observations of his disorder. Layno; 38 C.F.R. § 3.159(a)(2). However, as a lay person, he is not competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder (i.e. that he currently has a psychiatric disability related to service) because he does not have the requisite medical expertise. See, e.g., See Routen v. Brown, 10 Vet. App. 183, 186 (1997); Espiritu v. Derwinski, 2 Vet.App. 492 (1992). As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for hepatitis C is denied. Service connection for a psychiatric disability, claimed as depression, is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs