Citation Nr: 0844343 Decision Date: 12/23/08 Archive Date: 12/31/08 DOCKET NO. 07-38 983 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for hepatitis C. 2. Entitlement to service connection for diabetes mellitus on a direct basis, secondary to hepatitis C, and due to herbicide exposure. 3. Entitlement to service connection for depression on a direct basis and as secondary to hepatitis C. REPRESENTATION Veteran represented by: Vietnam Veterans of America WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The veteran served on active duty from January 1974 to September 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision of the Lincoln, Nebraska, Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for hepatitis C, diabetes mellitus, and depression. The veteran and his spouse testified before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing in August 2008. A transcript of that hearing is of record and associated with the claims folder. During the August 2008 Travel Board hearing, the veteran appeared to raise the issue of entitlement to service connection for post-traumatic stress disorder (PTSD). This issue is not inextricably intertwined to any issue on appeal. See Harris v. Derwinski, 1 Vet.App. 180 (1991). It is referred to the RO for whatever development is deemed appropriate. FINDINGS OF FACT 1. Service medical evidence is negative for any treatment or diagnosis of hepatitis C. 2. Hepatitis C was not manifested until many years after service. 3. The veteran's currently diagnosed hepatitis C is not causally or etiologically related to any incident or injury in service. 4. The veteran's diabetes mellitus is not attributable to an injury or disease in service, within one year of service discharge, nor is it linked to any service-connected disability or herbicide exposure in service. 5. The veteran's claimed depression is not attributable to an injury or disease in service, nor is it linked to any service-connected disability. CONCLUSIONS OF LAW 1. Hepatitis C was not incurred in or aggravated by service. 38 U.S.C.A.§§ 1110, 1131, (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2008). 2. Diabetes mellitus was not incurred in or aggravated by active service, nor may diabetes mellitus be presumed to have been incurred in service, nor is it due to herbicide exposure, nor was it caused by a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1116, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303 3.307, 3.309, 3.310 (2008). 3. Depression was not incurred in or aggravated by service nor was it caused by a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303 3.310 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Assist and Notify Under the Veterans Claims Assistance Act of 2000 (VCAA), VA is required to notify the veteran of any evidence that is necessary to substantiate his claims. This includes notifying the veteran of the evidence VA will attempt to obtain and that which the veteran is responsible for submitting. Proper notice must inform the veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the VA will seek to provide; and (3) that the veteran is expected to provide. See 38 C.F.R. § 3.159 (2007). These notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and the effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Effective May 30, 2008, VA amended its regulation governing VA's duty to provide a veteran with notice of the information and evidence necessary to substantiate a claim. The purpose of these changes is to clarify when VA has no duty to notify a veteran of how to substantiate a claim for benefits, to make the regulation comply with statutory changes, and to streamline the development of claims. The amendments apply to all applications for benefits pending before VA on, or filed after May 30, 2008, which includes these claims. Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which previously stated that VA will request the veteran to provide any evidence in the veteran's possession that pertains to the claims. The final rule also removes the fourth sentence of 38 C.F.R. § 3.159(b)(1), previously indicating that if VA does not receive the necessary information and evidence requested from the veteran within one year of the date of the notice, VA cannot pay or provide any benefits based on that application. The revised sentence reflects that the information and evidence that the veteran is informed that he or she is to provide must be provided within one year of the date of the notice. Finally, under 38 C.F.R. § 3.159(b)(3), no duty to provide 38 U.S.C.A. § 5103(a) notice arises upon receipt of a Notice of Disagreement (NOD) or when, as a matter of law, entitlement to the benefit claimed cannot be established. VA may continue to have an obligation to provide adequate section 38 U.S.C.A. § 5103(a) notice despite receipt of an NOD if the claim was denied and compliant notice was not previously provided. See Mayfield v. Nicholson, 444 F.3d at 1333-34 (Fed. Cir. 2006). In this case, the required VCAA notification was provided in a letter issued in March 2007, prior to the April 2007 adjudication. The RO also submitted additional VCAA notification in January 2008 and June 2008. The June 2008 notification related to what was necessary for herbicide exposure. In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that VA must also provide notification that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The veteran received such notification in January 2008. VA has a duty to assist the veteran in the development of the claims. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, VA has taken appropriate action to comply with the duty to assist the veteran with the development of his claim. The record includes service treatment evidence, private treatment evidence, and a July 2008 VA examination in connection with the claim. The veteran was also given the opportunity to submit any additional records that he may have. There are no known additional records or information to obtain. In addition, a personal hearing was offered and the veteran testified at a Travel Board hearing before the undersigned in August 2008. The Board finds that the record as it stands includes sufficient competent evidence to decide the claim. See 38 C.F.R. § 3.159(c)(4). Under these circumstances, the Board finds no further action is necessary to assist the veteran with his claims. Service Connection The veteran alleges that he has hepatitis C incurred in service. He alleges that he incurred hepatitis C when he underwent surgery in service in what he claims to have been an unsanitary operating suite in Korea. He also claims service connection for depression and diabetes mellitus due to service, or in the alternative, as secondary to hepatitis C. Finally, he also claim that he has diabetes mellitus as a result of herbicide exposure in Korea during service. Having carefully considered the claims in light of the record and the applicable law, the Board is of the opinion that service connection is not warranted for hepatitis C, diabetes mellitus, or depression. Hepatitis C The veteran alleges that he has hepatitis C as a result of service. It is his contention that he contracted this disorder when he underwent surgery in Korea for a circumcision. He maintains that the circumcision was not performed under sanitary conditions. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131. Service connection may 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). Generally, to prove service connection, the record must contain: (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances, lay testimony, of an in-service incurrence or aggravation of an injury or disease and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Pond v. West, 12 Vet. App. 341 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). While the record shows the veteran has a current disability, the claim is specifically denied on the basis that there is no competent lay or medical evidence of factors (2) and (3), above under the Pond and Caluza criteria. It is for these reasons that the claim is denied. See Holbrook v. Brown, 8 Vet. App. 91 (1995) (The Board has the fundamental authority to decide a claim in the alternative.). There are no VA regulations specifically dealing with service connection for hepatitis C. For service connection to be granted for hepatitis C, the evidence must show that the veteran's hepatitis C infection, risk factor(s), or symptoms were incurred in or aggravated by service. The evidence must further show by competent medical evidence that there is a relationship between the claimed in-service injury and the veteran's hepatitis C. Risk factors for hepatitis C include intravenous (IV) drug use, blood transfusions before 1992, hemodialysis, intranasal cocaine, high-risk sexual activity, accidental exposure while a health care worker, and various kinds of percutaneous exposure such as tattoos, body piercing, acupuncture with non-sterile needles, shared toothbrushes or razor blades. See VBA letter 211B (98-110) November 30, 1998. As to the risk factors noted above, the veteran clearly has had (1) IV drug use, and (2) high-risk sexual activity, as exemplified by several in-service treatments for venereal disease. Direct service connection may be granted only when a disability was incurred or aggravated in line of duty, and not the result of the veteran's own willful misconduct; or, for claims filed after October 31, 1990, not the result of abuse of alcohol or drugs. 38 C.F.R. § 3.301(a). This claim was filed after October 31, 1990. An injury or disease incurred during active military, naval, or air service shall not be deemed to have been incurred in line of duty if such injury or disease was a result of the abuse of alcohol or drugs by the person on whose service benefits are claimed. In relevant part, for the purpose of this paragraph, drug abuse means the use of illegal drugs (including prescription drugs that are illegally or illicitly obtained), the intentional use of prescription or non- prescription drugs for a purpose other than the medically intended use, or the use of substances other than alcohol to enjoy their intoxicating effects. 38 C.F.R. § 3.301(d); see also 38 U.S.C.A. § 105; 38 C.F.R. § 3.1(m). VA's General Counsel has confirmed that direct service connection for a disability that is a result of a claimant's own abuse of alcohol or drugs is precluded for purposes of all VA benefits for claims filed after October 31, 1990. See VAOPGCPREC 7-99 (1999), published at 64 Fed. Reg. 52,375 (June 9, 1999); VAOPGCPREC 2-98 (1998), published at 63 Fed. Reg. 31,263 (February 10, 1998). A VA "Fast Letter" issued in June 2004 (Veterans Benefits Administration (VBA) Fast Letter 04-13, June 29, 2004) identified "key points" that included the fact that hepatitis C is spread primarily by contact with blood and blood products, with the highest prevalence of hepatitis C infection among those with repeated, direct percutaneous (through the skin) exposure to blood (i.e., intravenous drug users, recipients of blood transfusions before screening of the blood supply began in 1992, and hemophiliacs treated with clotting factor before 1987). In Fast Letter 04-13, it is noted that "occupational exposure to HCV [hepatitis C virus] may occur in the health care setting through accidental needle sticks. A veteran may have been exposed to HCV during the course of his or her duties as a military corpsman, a medical worker, or as a consequence of being a combat veteran." In this case, the veteran's military occupational specialty was a clerk typist. The Fast Letter indicates, in its Conclusion section, that the large majority of hepatitis C infections can be accounted for by known modes of transmission, primarily transfusion of blood products before 1992, and injection drug use. See also VBA All Station Letter 211B (98-110) November 30, 1998; VBA Training Letter 211A (01-02) April 17, 2001 (major risk factors for hepatitis C include IV drug use, blood transfusions before 1992, hemodialysis, intranasal cocaine, high-risk sexual activity, accidental exposure while a health care worker, and various kinds of percutaneous exposure such as tattoos, body piercing, acupuncture with non-sterile needles, shared toothbrushes or razor blades). VBA Fast Letter 04- 13, June 29, 2004. Service medical evidence does not show any complaints, findings, treatment, or diagnosis of hepatitis C. As noted, in September 1975, the veteran was treated for syphilis. He was treated for gonorrhea in April 1976. He underwent an elective circumcision in July 1976. In a December 2006 statement accompanying his claim, the veteran alleged that: "I remember seeing other soldier getting the operation as I watched them and my turn came as I watched by some soldiers that were not doctors, nor patients. I thought at that time the conditions were unsanitary and 20 years later I believe my observations were correct at that time. As soon as the guy in front of me had the procedure completed I was on the same table in less than 5 minutes as I remember it and blood was everywhere." The veteran reiterated this essential factual account of his military service at an August 2008 Travel Board hearing conducted at the RO. The veteran indicated that he received a circumcision in service in a drab facility where anyone could walk in and out of the surgical suite while the procedure was ongoing. He stated that it appeared like an "assembly line." He related that he experimented with heroin, intravenously in 1975, prior to Korea. He stated that he never used a dirty syringe. He also testified that after service, he used heroin with others approximately 2 or 3 times. He also testified that none of the others with whom he injected heroin contracted hepatitis C to his knowledge. After service, VA medical records show that in February to March 1979, the veteran was hospitalized by VA for acute organic brain syndrome, secondary to drug or poison intoxication. The treatment report showed that the veteran was diagnosed with venereal disease on three occasions and treated on all three occasions in an appropriate manner. It was also noted that he began using heroin in 1976 while in service. He claimed that he supported this habit approximately five to six months, shooting up with heroin approximately three to four times a week. He stated that he just awoke one morning and decided that heroin was not for him and he quit and had not used the drug since then. He related a history of marijuana use. In February 1987, when he was admitted to VA for a court ordered alcohol evaluation secondary to his first DWI, he gave a history of episodic cocaine abuse. In November 1987, VA records indicate that the veteran attended Alcohol Anonymous (AA) and Narcotics Anonymous (NA). In January 1996, the veteran was seen by a private physician T.B.D., MD, and the records indicated that the veteran was recently diagnosed with hepatitis C. He related that he could have been exposed to hepatitis C in the early 1980's when he had an intimate relationship with someone who used heroin. He also related to the physician that he could also have been exposed in 1976 at a time when he experimented with parenteral drugs for only a two to three month period. He stated he had never had a blood transfusion. He had an episode of syphilis which was treated in 1974. In January 2007, a medical opinion was submitted by Craig N. Bash, MD on behalf of the veteran's claim. Dr. Bash opined that the veteran's current hepatitis C was likely caused by his surgical experiences and contaminated blood, in service, while in Korea in 1976. The physician indicated that the veteran entered service fit for duty, had surgery in a foreign country, and JCAHO (Joint Commission for Accreditation of Hospital Organizations) guidelines concerning sterility were "likely not enforceable." A non- sterile environment which contained blood and blood products would be considered a known vector for transmission of hepatitis C from patient to patient. It was noted that the veteran had other risk factors for the development of hepatitis C as he stated he used clean needles for intravenous drug use a "couple of times." Dr. Bash also related that it was very difficult to tell which exposure caused the veteran's hepatitis C (either service surgery or the drug use). He believed that the service time surgery was more likely the causative event as this event was documented in the veteran's medical history and occurred in a relatively dirty Korean environment. The veteran's needle use was not documented in his medical records and therefore, the information was exclusively lay in nature. The veteran stated that the needles he used were clean, and this event was likely relatively sterile, from a hepatitis C standpoint. Dr. Bash also stated that his opinion was consistent with that of another physician who stated that the veteran's hepatitis C was slowly progressive and was likely present for 15 to 20 years. Dr. Bash did not express any opinion as to what effect, if any, the veteran's documented high-risk sexual activity may have played in the development of the disorder. The veteran underwent VA examination in July 2007, accompanied by a review of the claims folder. Shipwash v. Brown, 8 Vet.App. 218, 222 (1995); Flash v. Brown, 8 Vet.App. 332, 339-340 (1995) (Regarding the duty of VA to provide medical examinations conducted by medical professionals with full access to and review of the veteran's claims folder). The examiner noted that the veteran's medical history indicated that the veteran was diagnosed in 1996 with hepatitis C and underwent a number of interferon/ribavarin treatments. The medical history revealed alcohol and substance abuse and high risk sexual activity. The examiner related his understanding of the veteran's account of the 1976 surgical procedure, under unsanitary conditions. The examiner also noted the veteran's history of alcohol ingestion, intravenous drug abuse, cocaine use, high-risk sexual activity and that he had been a boxer for 17 years (risk factors being splashes of blood and saliva). The examiner stated that the etiology of the veteran's hepatitis C appeared to be multi-factorial. The examiner stated that the veteran had numerous risk factors to contract hepatitis C. The examiner indicated that he found it less likely that the veteran's circumcision procedure was the cause of his hepatitis C, because essentially this could not be proven since it was performed so many years ago. However, it was the examiner's opinion that the veteran's other risk factors outweighed the likelihood of contracting hepatitis C through an operative procedure or a circumcision since he did not receive any blood products at the time of the circumcision. The examiner indicated that the veteran's other risk factors appeared likely to have caused hepatitis C. Dr. Bash submitted a February 2008 addendum to his January 2007 medical opinion. He stated that he found it impossible to tell if the veteran's hepatitis C came from drug use or his circumcision performed under dirty conditions in Korea when the blood supply there was unsafe. According to Dr. Bash, the risk of hepatitis from surgery in service was a known medical risk that was likely greater than his risk for hepatitis from drug use, "especially since the veteran always used a clean needle." Further according to Dr. Bash, the veteran's records did not show other risk factors of the development of hepatitis C. Again, Dr. Bash did not allude to the veteran's history of high-risk sexual activity as reflected in his service medical records. Upon careful review of the evidence of record, the Board finds that the competent evidence of record is against a finding that hepatitis C was incurred in or aggravated by the veteran's military service. The sole opinion supportive of the veteran's claim is that of Dr. Bash. However, that opinion is based solely upon the physician's belief that the veteran is wholly truthful in his account that he underwent a surgery by military physicians conducted in an unsanitary environment. Apart from the veteran's account, which was clearly generated in the course of an attempt to gain VA compensation, there is no evidence to indicate that the surgery occurred in the conditions he has described. The veteran alleges that during the peacetime environment in which he served, military medical professionals conducted his surgery, as well as that of other soldiers, in what can be described as a medieval environment- e.g., unsanitary conditions, assembly-line procedures, non-medical spectators and the presence of "blood everywhere." In this respect, the veteran's account of the "in-service" event as noted above in the Pond and Caluza three-part test for a grant of service connection is not the in-service surgery. It is instead the surgery as the veteran has described it. However, the veteran's description is wholly incredible and the Board places no credibility on it whatsoever. Duran v. Brown, 7 Vet. App. 216, 220 (1994); see Samuels v. West, 11 Vet. App. 433, 436 (1998) (Where the veteran sought service connection for post-traumatic stress disorder, based upon multiple stressors occurring during "combat" in Vietnam, and the record clearly showed he had never served in Vietnam, no presumption of credibility attached to his statements of his in-service claimed stressors); see also Godfrey v. Brown, 7 Vet. App. 398, 407 (1995) (Where the report of the Social Security Administration [SSA] reflected that its findings were based on the veteran's disability encompassing "twenty- year history of back problems," as evidenced by "medical evidence" and the medical evidence as evidenced in the SSA file shows no such history, the SSA statement cannot be presumed to be credible when on its face it conflicts with the lack of substantiation for it in the very medical evidence on which it is expressly premised). Indeed, even were the Board to assign any credibility to the veteran's account of the in-service surgery, the veteran is not competent to render an opinion as to whether military medical professionals failed to ensure that the surgery was conducted in a sanitary environment. It has been continuously held that a medically untrained layperson, such as the veteran, is not qualified to render medical opinions, and such opinions are entitled to no weight. Cromley v. Brown, 7 Vet. App. 376, 379 (1995); Boeck v. Brown, 6 Vet. App. 14, 16 (1993); Grivois v. Brown, 6 Vet. App. 136, 140 (1994); Cox v. Brown, 5 Vet. app. 93, 95 (1993); Moray v. Brown, 5 Vet. App. 211, 214 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Dr. Bash's opinion is therefore not factually supportable. With due respect to the physician, while standards from the Joint Commission may not have been enforceable, it cannot be doubted that the U.S. military does have standards for the care of its members, as to both surgical procedures and blood supplies. His opinion that the veteran's hepatitis C was likely caused by his surgical experiences and contaminated blood is not based on any data other than the veteran's lay statements, and he specifically did not address the veteran's episodic cocaine use or his high risk sexual activity. However, the medical opinion rendered by the July 2007 VA examiner, indicated that the etiology of the veteran's hepatitis C was multi-factorial. This examiner stated that it was less likely that the circumcision in service was the cause of the veteran's hepatitis C as he did not receive any blood products in connection with this procedure. The examiner stated that it was therefore, more likely that the other risk factors were the cause of the veteran's hepatitis C. Because the opinion of Dr. Bash is not factually supportable, his medical opinion linking the disorder to military service is equally of no probative value. The explicit or implicit opinion of the physician that the veteran is truthful is not necessarily probative as to the facts of the account. See Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996). While a physician is competent to render medical opinions, such competence does not extend to the factual underpinnings of the opinion. See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant); see also Jones (Stephen) v. West, 12 Vet. App. 383 (1999); (where a veteran with service-connected PTSD sought service connection for the residuals of a broken leg, sustained in a motorcycle accident. His treating physician opined that "thrill seeking behavior," typical in PTSD patients, in part had caused the veteran's recklessness. However, evidence was of record indicating that the veteran had told police officers and bystanders immediately after the accident that he had exercised care when riding his motorcycle, and that a car struck him as he was attempting to negotiate a turn. The Court found the physician's opinion not sufficient to well- ground the claim under then applicable law, because although the veteran was competent to testify as to the sequence of events of the accident, the physician was not an eyewitness to the accident, so that any opinion regarding what actions or sequence of events caused the accident was outside the scope of his competence. Id. at 386). Since Dr. Bash's opinion is based on only two risk factors; is grounded on the unsubstantiated accounts of the veteran; does not address at least two other risk factors; and does not address the fact that the highest prevalence of hepatitis C infection is caused by those such as IV drug use, which the veteran has engaged in on more than one occasion, the Board finds the private medical opinion less probative and accords the VA medical opinion that addressed all of the risk factors, greater weight. Absent competent factual evidence indicating substantiation of the in-service event; and a competent medical opinion establishing a nexus between the veteran's current diagnosis of hepatitis C and an inservice disease, injury, or event, service connection for hepatitis C is not warranted. Diabetes mellitus The veteran contends that he has diabetes mellitus as a result of service. He also maintains in the alternative, that his diabetes mellitus is due to his hepatitis C, or herbicide exposure in service while stationed in Korea. As previously indicated, service connection is available for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may presumed, for certain chronic diseases, such as diabetes mellitus, which are manifested to a compensable degree within a prescribed period after discharge from service (one year for diabetes mellitus), even though there is no evidence of such disease during the period of service. This presumption is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). A claimant is also entitled to service connection on a secondary basis when it is shown that a service-connected disability has chronically aggravated a nonservice-connected disability. 38 C.F.R. § 3.310. The claim for entitlement to service connection for diabetes mellitus is based on the veteran's allegation that such disability developed due to his hepatitis C or in the alternative, due to herbicide exposure in Korea. The veteran does not contend, and the evidence does not show, that diabetes mellitus was initially manifested in service or during the first year after his discharge from service. Although the veteran currently has diabetes mellitus, a review of the medical evidence does not show that diabetes mellitus was diagnosed prior to 2006. In any event, there is no evidence that it is directly related to service. Accordingly, service connection is not warranted on that basis. Since the Board is denying the underlying claim for service connection for hepatitis C, the veteran cannot establish service connection for diabetes mellitus according to a secondary relationship to this claimed hepatitis C. In view of the denial of service connection for the primary disorder, a theory of entitlement based on secondary service connection presents a moot issue. Accordingly, there is no legal basis to grant service connection for diabetes mellitus secondary to hepatitis C. Sabonis v. Brown, 6 Vet. App. 426 (1994) (in cases in which the law and not the evidence is dispositive, a claim for entitlement to VA benefits should be denied or the appeal to the Board terminated because of the absence of legal merit). Finally, the veteran does contend that in the alternative, he has diabetes mellitus due to herbicide exposure while stationed in Korea. Therefore, he maintains that service connection should be presumed. VA has developed specific procedures to determine whether a veteran was exposed to herbicides along the DMZ in Korea. VA's Adjudication Procedure Manual, M 21-1, part VI, para. 7.20(b)(2) (change 125) (hereinafter M21-1) indicates that herbicides were used along the southern boundary of the DMZ in Korea between April 1968 and July 1969. The Department of Defense (DoD) has identified specific units that were assigned, or rotated to areas along the DMZ where herbicides were used. Herbicide exposure is conceded for veterans who allege service along the DMZ in Korea and were assigned to one of the units identified between April 1968 and July 1969. In this case, the veteran was on active duty from 1974 to 1976. This was not between April 1968 and July 1969, the time period when herbicides were used along the DMZ in Korea. Therefore, the criteria for presumptive service connection on the basis of a chronic disease have not been satisfied. However, the United States Court of Appeals for the Federal Circuit has held that, even when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). The United States Court of Appeals for Veterans Claims has specifically held that the provisions set forth in Combee are applicable in cases involving Agent Orange exposure. McCartt v. West, 12 Vet. App. 164, 167 (1999). In this regard, the only evidence of record supporting the veteran's claim that he was exposed to herbicides in Korea is his own lay opinion. The veteran, however, has not been shown to possess the requisite medical training or credentials needed to render a diagnosis. Accordingly, his lay opinion does not constitute medical evidence and lacks probative value. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd, 142 F.3d 1434 (Fed. Cir. 1988); YT v. Brown, 9 Vet. App. 195, 201 (1996). Since there is no medical evidence showing diabetes mellitus in service, within one year of service discharge, no evidence showing diabetes mellitus as secondary to a service-connected disability, nor was the veteran stationed in Korea near the DMZ between April 1968 and July 1969, nor medical evidence to show that the veteran has diabetes mellitus as a result of herbicide exposure in Korea, service connection is not warranted on a direct basis, on a presumptive basis, secondary to hepatitis C, or due to herbicide exposure. Depression The veteran claims that service connection is warranted for depression on a direct basis or in the alternative, secondary to hepatitis C. In order to prevail on a claim for service connection, there must be current evidence of the claimed disability. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). Although the veteran has been diagnosed with acute psychosis secondary to multiple chemical abuse, acute organic brain syndrome secondary to drug or poison intoxication, acute psychotic episode, and depression secondary to hepatitis C, the most recent medical evidence of record, a July 2007 VA psychiatric report, indicates, in pertinent part, that the veteran does not presently have a mental health problem that reaches the level of a DSM IV diagnosis. Based on the foregoing, the veteran does not have a current psychiatric disability and therefore, service connection for depression on a direct basis or as secondary to hepatitis C is not warranted. (ORDER CONTINUED ON NEXT PAGE) ORDER Service connection for hepatitis C is denied. Service connection for diabetes mellitus on a direct basis, secondary to hepatitis C, and due to herbicide exposure is denied. Service connection for depression on a direct basis or as secondary to hepatitis C is denied. ____________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs