Citation Nr: 0813454 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 04-23 950 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for hepatitis A, B, and C. 2. Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. D. Jackson, Counsel INTRODUCTION The veteran had active service from September 1968 to September 1972. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of January 2003 by the Department of Veterans Affairs (VA) Los Angeles, California, Regional Office (RO). A hearing was held before the undersigned Veterans Law Judge at the RO in January 2008. FINDINGS OF FACT 1. The competent evidence on file shows that the veteran does not have current diagnoses of hepatitis A or B. No hepatitis was clinically established in service. Hepatitis C was first manifested many years after discharge and there is no competent medical evidence relating it to active service. 2. The veteran did not engage in combat with the enemy and the claimed in-service stressors have not been corroborated by service records or other credible, supporting evidence. 3. The currently diagnosed PTSD is not causally related to service. CONCLUSIONS OF LAW 1. Hepatitis A, B, and C were not incurred in or aggravated during military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2007). 2. PTSD was not incurred in active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Review of the record reveals that all appropriate notice and development has been accomplished. See 38 U.S.C.A. §§ 5100 et seq. (West 2002 & Supp. 2007). Notice as to what evidence needed, as well as the type of evidence necessary to establish a disability rating and effective date for that disability, has been provided. Letters of August 2002, September 2002, October 2003, and March 2006 provided pertinent notice and development information. The veteran reported in an Authorization and Consent to Release Information to VA (VA Form 21-4142), that he received medical care while incarcerated in the state of California correctional system. The RO has been unable to obtain these records. The veteran was notified and has not forwarded any records to the VA or reported that he has attempted to acquire copies of the treatment records. While VA has a statutory duty to assist the veteran in developing evidence pertinent to a claim, the veteran also has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street. There is no indication that there is additional evidence or development that should be undertaken. The Board declines to obtain a medical nexus opinion with respect to the claims of service connection. In the absence of evidence of medical treatment for hepatitis in service or within a reasonable time subsequent to the veteran's military service, the Board finds that any medical opinion would be based on pure speculation. See 38 C.F.R. § 3.102 (service connection may not be predicated on a resort to speculation or remote possibility). The same is true regarding the claim for PTSD, as stressors have not been verified, any diagnosis in regard to PTSD would be based on speculation. See Charles v. Principi, 16 Vet. App. 370 (2002). For the above reasons, the Board finds that development of the record is sufficiently complete to permit a fair and just resolution of the appeal, and there has been no prejudicial failure of notice or assistance to the appellant. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. The record contains service medical records, as well as, post service VA and private medical records. Entitlement to service connection for hepatitis A, B, and C Entitlement to service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. 3.303(d); Cosman v. Principi, 3 Vet. App. 303, 305 (1992). In order to establish service connection for the claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1, 8 (1999). Initially, the Board notes that the current record does not support a conclusion that the veteran has current diagnoses of hepatitis A or B. Diagnostic testing was conducted by a private laboratory in February 2000 and at a November 2002 QTC contract examination. The laboratory results were negative for hepatitis A and B viruses. Therefore, without proof of current disability, service connection cannot be granted. See Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439, 448 (1995); Chelte v. Brown, 10 Vet. App. 268, 271 (1997). There is a diagnosis made in part on the appellant's presentation that he had hepatitis B in the past, and now has elevated enzymes. There remains, however, no evidence of hepatitis of any sort in serivce. In regard to hepatitis C, evidence of current disability is shown by the results of the February 2000 private and the November 2002 QTC diagnostic reports that confirm hepatitis C. Service medical records do not contain any evidence of complaints, findings, treatment or diagnosis of hepatitis C. In his application for benefits in 2001, the veteran reported that he was treated for hepatitis in Thailand in 1970 or1971; however, as noted, this is not supported by the official record. Neither the appellant nor VA have been able to locate any records of such treatment. In fact, the veteran has provided contradicting statements regarding the initial onset of hepatitis. Instead of reporting military service onset, at the November 2002 QTC examination, the veteran indicated that he initially contracted hepatitis while incarcerated. It is unclear as to his beginning date of incarceration. A VA Form 21-4142 dated in September 2002 indicates that the veteran reported incarceration from "1984 to 09". A November 2001 VA clinical report shows that he reported a history of arrest for robbery from December 1989 to December 1999. Regardless, in light of his inconsistent statements, the Board finds little probative value in the veteran's statements regarding the onset of hepatitis during service. The earliest objective evidence documenting hepatitis C is contained in VA medical records in 2000, approximately 28 years after service discharge. Such a pronounced lapse of time between the alleged onset of a disability and its initial manifestations is a factor for consideration in deciding a service connection claim. Even assuming that he initially contracted hepatitis during the earliest reported date of incarceration in 1984, this is still a significant period of time subsequent to service discharge. Still further, the medical evidence of record does not include any medical statements or opinions that relate hepatitis C to military service. In fact, a March 2002 VA clinical note indicates that the veteran had several risk factors for contracting hepatitis including illicit injected drug use, intranasal cocaine use, and unexplained liver disease. To attribute the veteran's onset of this disability to military service without objective medical evidence would require excessive speculation. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for hepatitis A, B, and C. Service connection for PTSD Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) [i.e., under the criteria of Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM- IV)]; a link, established by medical evidence, between the veteran's current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. The service medical records do not show treatment for a psychiatric disorder during his tour of duty. In August 1970, his duty officer requested evaluation evidently for alcohol or drug use after he reported late for duty. It was determined that the veteran was not taking drugs or alcohol. Otherwise, there is no reference to psychiatric medical care. The post service record contains a November 2002 private psychologist report. The report shows that the veteran stated that he experienced guilt knowing that the bombs he loaded would kill civilians, especially children. He also reported witnessing the crash of a B-52 airplane. The diagnosis was PTSD. The record also contains an April 2004 VA outpatient clinical note that includes a diagnosis of possible PTSD. The veteran's claimed in-service stressors includes: loading munitions on airplanes and realizing they would kill children; landing in an airplane which slid off the runway in Guam; witnessing the crash of a B-52 in Guam in 1969 or 1970; fearing when the B-52 airplanes would return with hot munitions; experiencing fear when a ground wire became hot during the loading of munitions in 1971; and the stress associated with loading munitions. While there are diagnoses of PTSD, the claim must be denied in the absence of the other essential criteria for establishing service connection for PTSD, that is, credible supporting evidence that the claimed in-service stressors actually occurred. In that regard, the United States Court of Appeals for Veterans Claims (Court) has determined that medical evidence is inadequate where medical opinions consist of general conclusions based on history furnished by the appellant and on unsupported clinical evidence. See Black v. Brown, 5 Vet. App. 177 (1993). The record does not reflect that the veteran received any awards or decorations for valor, combat experience or combat injuries; nor is there any other evidence of record that he participated in active combat. Review of the record reflects that the veteran's DD Form 214 (Report of Transfer or Discharge), from his period of active service contains no reference to any combat citations. Likewise, the administrative records now on file do not show that the veteran was entitled to receive the Purple Heart Medal, the Combat Action Ribbon, or other awards or decorations appropriate to his branch of service denoting participation in combat with the enemy. Service administrative records relate that his duty title was munitions loading team member. There is no evidence that he was involved in a campaign or combat. Where a veteran-claimant did not serve in combat or the stressor is not related to combat, his lay testimony, by itself, will not be enough to establish the occurrence of the alleged stressor. See West (Carleton) v. Brown, 7 Vet. App. 70, 76 (1994); see also Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Instead, the record must contain evidence that corroborates his testimony as to the occurrence of the claimed stressor. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d), (f). In this case, the veteran's service personnel records and service medical records are negative for any corroborating or supportive evidence of such stressors. Instead, the Board notes that the veteran's service personnel records and service medical records are unremarkable. Furthermore, all of the veteran's own statements within the record regarding the occurrence of the stressors are unverifiable or lack significant detail so that they are not subject to verification. Because of this lack of detail and vague statements, the Board finds the veteran's statements are not credible in view of the inability to otherwise corroborate the claimed stressors. Thus, while the record shows the veteran was given a diagnosis of PTSD, there is no credible supporting evidence that the claimed stressors cited by the veteran actually occurred. He has not submitted any evidence to support his assertion that any stressful event or events occurred. The Board therefore finds that there is no credible supporting evidence of the claimed stressors. Furthermore, it is noted that there are also multiple other psychiatric diagnoses on file. In view of the foregoing, the Board finds the preponderance of the evidence is against the claim for service connection for PTSD. ORDER Service connection for hepatitis A, B, and C is denied. Service connection for PTSD is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs