Citation Nr: 0812547 Decision Date: 04/15/08 Archive Date: 05/01/08 DOCKET NO. 04-29 364 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to service connection for bipolar disorder. 2. Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Coyle, Associate Counsel INTRODUCTION The veteran served on active duty from February 1972 to July 1972. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2003 rating decision by the Baltimore, Maryland, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied entitlement to the benefits currently sought on appeal. A hearing on these matters was held before the undersigned Veterans Law Judge in October 2004. A copy of the hearing transcript has been associated with the file. In December 2004, the Board remanded these issues to the RO (via the Appeals Management Center (AMC)) for further evidentiary development. After completion of the requested development, the AMC returned the case to the Board for appellate review. FINDINGS OF FACT 1. Bipolar disorder first manifested years after the veteran's service and is not related to his service. 2. Hepatitis C first manifested years after the veteran's service and is not related to his service. CONCLUSIONS OF LAW 1. Bipolar disorder was not incurred in or aggravated by active military service, nor may a psychosis be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103-5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2007). 2. Hepatitis C was not incurred in or aggravated during active service. 38 U.S.C.A. §§ 1110, 5103-5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist In correspondence dated July 2002, October 2002 and March 2005, the RO satisfied its duty to notify the veteran under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Specifically, the RO notified the veteran of: information and evidence necessary to substantiate the claims for service connection; 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. VA has done everything reasonably possible to assist the veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c). All identified and available treatment records have been secured. The veteran's service medical records are unavailable, and efforts to locate them have been documented. The Board declines to obtain medical nexus opinions with respect to these claims because there is no evidence of hepatitis C or bipolar disorder for several years following service. Thus, there is no true indication that the veteran's disabilities are associated with his service. See Charles v. Principi, 16 Vet. App. 370 (2002). Further, the veteran's bipolar disorder cannot be presumptively linked to his service. See 38 C.F.R. §§ 3.307, 3.309. In view of the first suggestion of pertinent disabilities many years after active duty, relating the veteran's current disabilities to service would certainly be speculative. 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 is satisfied that the duties to notify and assist have been met. Legal Criteria In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not determined to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also 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). Furthermore, service connection for a psychosis is presumed if it is manifest to a compensable degree within a year of separation from active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. There must be medical evidence of a current disability, medical or lay evidence of in-service incurrence or aggravation of a disease or injury, and medical evidence linking the current disability to that in-service disease or injury. Pond v. West, 12 Vet. App. 341, 346 (1999); Hickson v. West, 12 Vet. App. 247, 253 (1999). The veteran's service medical records are not on file and efforts to locate them have been unsuccessful. The Court has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the- doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board's analysis has been undertaken with this heightened duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the veteran. Russo v. Brown, 9 Vet. App. 46 (1996). Bipolar Disorder As a preliminary matter, it is noted that there is no medical evidence of a psychosis manifesting to a compensable degree within one year of the veteran's separation; thus, the presumptive period is not for application. See 38 C.F.R. §§ 3.307, 3.309. The veteran testified during his December 2004 hearing that events in service led to his bipolar disorder, but that he did not seek treatment for his symptoms until approximately 1985, at the Washington VA Medical Center. Records from that facility dating to 1985 have not been located. The medical evidence of record indicates that the veteran was diagnosed with bipolar disorder in September 1993 and that he has received regular treatment for bipolar disorder since then. None of his treatment providers have indicated that the veteran's bipolar disorder had its onset in service. A letter from the veteran's sister has also been received, indicating that the veteran had chronic sleep impairment and mood swings following his discharge from active service. Based upon the evidence of record, the Board finds that service connection is not warranted in this case. While the veteran has a current diagnosis of bipolar disorder, there is no competent evidence that it is related to service. The veteran testified that he did not seek treatment for bipolar disorder until 1985, 13 years following his discharge. The medical evidence of record does not indicate treatment for bipolar disorder until 1993, more than 20 years after discharge. In view of the lengthy period of time between service discharge and the first indication of bipolar disorder, there is no evidence of continuity of symptomatology and this weighs against the claim. See 38 C.F.R. § 3.303. The Board has considered the lay evidence submitted by the veteran and his sister, indicating that the veteran exhibited mood swings and sleep impairment immediately following his discharge. Although they are competent to testify as to the veteran's change in personality, they have not been shown to possess the requisite training or credentials needed to render a diagnosis or a competent opinion as to medical causation. As such, their lay opinions do not constitute competent medical evidence and lack probative value. See Routen v. Brown, 10 Vet. App. 183, 186 (1997); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). In conclusion, a preponderance of the evidence is against a finding that the veteran's bipolar disorder is causally related to active service. Thus, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Hepatitis C During his December 2004 hearing testimony, the veteran stated that he had developed jaundice immediately following his discharge from service. According to the veteran, he went to the health department in Prince George's County, Maryland, where he was diagnosed with an unidentified form of hepatitis. He was prescribed antibiotics and his symptoms resolved. He did not discover that he was infected with hepatitis C until August 1999, after an attempt to donate blood. Efforts to obtain the veteran's records from the Prince George's County Health Department were unsuccessful. There is no other medical evidence showing that the veteran had been diagnosed with hepatitis. The evidence of record shows that the veteran is currently undergoing treatment for hepatitis C. None of his treatment providers have linked his disorder to his service. On review, the Board finds that a preponderance of the evidence is against a finding that the veteran's hepatitis C is linked to his service. The medical evidence of record shows that the veteran was informed that he had hepatitis C in August 1999, more than 25 years following discharge. The veteran's pre-August 1999 records do not refer to previous treatment for hepatitis. None of the veteran's treating physicians have attributed his hepatitis C to his active service. In view of the lengthy period of time between service discharge and the first indication of hepatitis C, there is no evidence of continuity of symptomatology and this weighs against the claim. See 38 C.F.R. § 3.303. Service connection for hepatitis C is not warranted. The Board acknowledges the veteran's belief that his hepatitis C is causally related to active service. However, he has not been shown to possess the requisite training or credentials needed to render a diagnosis or a competent opinion as to medical causation. As such, his lay opinion does not constitute competent medical evidence and lacks probative value. See Routen v. Brown, 10 Vet. App. 183, 186 (1997); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). In conclusion, a preponderance of the evidence is against a finding that the veteran's hepatitis C is causally related to active service. Thus, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for bipolar disorder is denied. Entitlement to service connection for hepatitis C is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs