Citation Nr: 1032572 Decision Date: 08/30/10 Archive Date: 09/08/10 DOCKET NO. 09-46 038 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for hypertensive retinopathy and cataracts, to include as secondary to the Veteran's service-connected diabetes mellitus, type II. 3. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), anxiety, and depression. 4. Entitlement to service connection for hepatitis C. 5. Entitlement to service connection for benign prostate hypertrophy, to include as secondary to Agent Orange exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant/Veteran ATTORNEY FOR THE BOARD Kristi L. Gunn, Counsel INTRODUCTION The Veteran served on active duty from August 1966 to October 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from March 2009 and May 2009 rating decisions of the Detroit, Michigan, Department of Veterans Affairs (VA) Regional Office (RO). In April 2010, the Veteran testified at a personal hearing before the undersigned Acting Veterans Law Judge. A copy of the transcript is of record. The issues of entitlement to service connection for hypertension; hypertensive retinopathy and cataracts, to include as secondary to the Veteran's service-connected diabetes mellitus, type II; an acquired psychiatric disorder, to include PTSD, anxiety, and depression; and benign prostate hypertrophy, to include as secondary to Agent Orange exposure, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the Veteran's appeal has been obtained. 2. The Veteran's hepatitis C was contracted as a result of intravenous (IV) drug use, and is not otherwise causally related to his period of active military service. 3. The Veteran's hepatitis C is a result of willful misconduct and/or the abuse of drugs. CONCLUSION OF LAW Hepatitis C was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1113, 1116, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.303 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify & Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, or any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(b) (2009); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the Court held that VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The Board finds that the notice requirements have been satisfied by the February 2008 letter. In the February 2008 letter, VA informed the Veteran that in order to substantiate a claim for service connection, the evidence needed to show he had a current disability, a disease or injury in service, and evidence of a nexus between the post service disability and the disease or injury in service, which was usually shown by medical records and medical opinions. As to informing the Veteran of which information and evidence he was to provide to VA and which information and evidence VA would attempt to obtain on his behalf, VA informed him it had a duty to obtain any records held by any federal agency. It also informed him that on his behalf, VA would make reasonable efforts to obtain records that were not held by a federal agency, such as records from private doctors and hospitals. Finally, the RO told the Veteran that he could obtain private records himself and submit them to VA. In the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held, among other things, that the required notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection was awarded. In the present appeal, the February 2008 VCAA letter to the Veteran included the type of evidence necessary to establish a disability rating and effective date for the disability on appeal. As such, all notice requirements have been met. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has obtained the Veteran's service treatment records, private treatment records, and VA outpatient treatment records. The Veteran was given the opportunity to present personal testimony before the Board in April 2010 and was also provided a VA examination in connection with his service connection claim. The VA examiner reviewed the Veteran's medical history, recorded pertinent examination findings, and provided a conclusion with supportive rationale. Consequently, the Board finds that the VA examination report is adequate for rating purposes. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim of entitlement to service connection for hepatitis C. The evidence of record provides sufficient information to adequately evaluate the claim and the Board is not aware of the existence of any additional relevant evidence which has not been obtained. Therefore, no further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). II. Merits Analysis The Veteran asserts that service connection is warranted for his hepatitis C. He testified before the Board that he began using intravenous drugs during service, that he shared needles with other drug users, and that he believes that was the source of his contracting hepatitis C. The Veteran stated that he did not get diagnosed as having hepatitis C until about three years after his discharge from service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. Service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in- service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The chronicity provision of 38 C.F.R. § 3.303(b) is applicable where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumptive period and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under the Court's case law, lay observation is competent. Savage v. Gober, 10 Vet. App. 488, 498 (1997). In addition, if a condition noted during service is not shown 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). In order to establish service connection for hepatitis C, the evidence must show that hepatitis C infection, risk factor(s), or symptoms were incurred in or aggravated by service. The evidence must further show by competent evidence that there is a relationship between the current hepatitis C disability and an incident of the Veteran's service. 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. No compensation shall be paid if the disability resulting from injury or disease in service is a result of the Veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C.A. §§ 105, 1110. Direct service connection may be granted only when a disability or cause of death 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, the result of his or her abuse of alcohol or drugs. 38 C.F.R. § 3.301. Consistent with the Veteran's testimony, his service treatment records reflect no complaints, treatment, or diagnosis related to hepatitis C. Over a year after discharge from service, he was determined to have hepatitis C and began treatment. In July 2008, the Veteran was diagnosed as having chronic hepatitis C by a VA medical professional. In January 2009, the Veteran was afforded a VA liver, gallbladder, and pancreas examination. He informed the examiner of his hepatitis C infection and denied any hospitalizations or incapacitating episodes due to his hepatitis C within the last twelve months. He admitted IV drug abuse several years earlier, which is decades after his in-service drug use. After physical and diagnostic testing, the VA examiner diagnosed chronic hepatitis C infection, inactive, and opined that the Veteran's hepatitis C was not caused by or aggravated by his service- connected diabetes mellitus, but most likely acquired through IV drug abuse. Following a complete review of the evidence, the Board finds that the Veteran used IV drugs during service and IV drugs subsequent to service; he was diagnosed as having hepatitis C due to IV drug use many years after discharge from service; and, the only evidence linking the Veteran's current diagnosis of hepatitis C to his drug use in service is his own personal testimony, which the Board finds credible. The testimony, however, is not competent with respect to medical nexus as the Veteran does not possess any medical training that would allow for him to provide such an etiologic opinion. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992) (Laypersons are not competent to offer medical opinions). It is important to point out that even if the Veteran had contracted hepatitis C as a result of his in-service drug abuse, VA compensation benefits are barred for that disability as it is a result of misconduct and/or the abuse of drugs. Thus, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for hepatitis C as the evidence clearly shows that hepatitis C was contracted due to illicit drug use. As noted above, the Veteran claims that his hepatitis C was contracted through the sharing of needles for IV drug use, and he has never claimed that there are any other risk factors that could have also been responsible. By his own admissions on his December 2007 formal application for compensation benefits, at the January 2009 VA examination, and during the April 2010 Board hearing, the Veteran repeatedly asserted that his hepatitis C was due to drug abuse in service. As such, the Board finds that the Veteran's hepatitis C, associated with the illegal drug use, is the result of willful misconduct and shall not be deemed to have been incurred as a result of active duty service. Accordingly, service connection for hepatitis C is denied. ORDER Service connection for hepatitis C is denied. REMAND A review of the record discloses a need for further development prior to final appellate review of the claims of entitlement to service connection for hypertension; hypertensive retinopathy and cataracts, to include as secondary to the Veteran's service connected diabetes mellitus, type II; an acquired psychiatric disorder, to include PTSD, anxiety, and depression; and, benign prostate hypertrophy, to include as secondary to the Veteran's service-connected diabetes mellitus and Agent Orange exposure. Specifically, at the April 2010 hearing, the Veteran testified that his hypertension is attributable to his active military service, and his prostate disorder is a direct result of Agent Orange exposure. He further added that his acquired psychiatric disorder is due to his ship being shot at once while traveling along the Mekong Delta in Vietnam, and his eye disorders are caused by his service-connected diabetes mellitus, type II. Service treatment records reflect urinary problems in August 1966, but otherwise, no complaints, treatment, or diagnoses relating to hypertension, hypertensive retinopathy, cataracts, a psychiatric disorder, or benign prostate hypertrophy. Upon discharge from service, clinical evaluation of the Veteran's heart, eyes, anus and rectum were normal, as was a psychiatric evaluation, as reflected on the October 1969 report of medical examination. Following separation from service, VA outpatient treatment records note treatment for hypertension, hypertensive retinopathy, cataracts, anxiety, depression, and benign prostate hypertrophy. In January and March of 2009, the Veteran underwent VA examinations for his claimed disabilities. According to his January 2009 VA examination of the liver, gallbladder, and pancreas, the VA examiner diagnosed hypertension and benign prostatic hypertrophy. The examiner opined that both were not caused by nor aggravated by diabetes mellitus. The January 2009 eye examination report includes diagnoses of bilateral hypertensive retinopathy and cataracts, with the examiner determining that the Veteran's bilateral cataracts were at least as likely as not related to his service-connected diabetes mellitus without commenting at all on the etiology of the retinopathy. Finally, at the March 2009 VA mental disorders examination, the VA examiner concluded that the Veteran's anxiety was less than likely the result of his military service. While these examination reports are probative medical evidence, they are insufficient for rating purposes as they do not include any rationale for the opinions provided. In Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), the United States Court of Veterans Appeals (Court) specifically found that a medical opinion that contains only data and conclusions is accorded no weight. The Court has previously found that an opinion that is unsupported and unexplained is purely speculative and does not provide the degree of certainty required for medical nexus evidence. See Bloom v. West, 12 Vet. App. 185, 187 (1999). Consequently, the Board finds that it is left with a medical record that is inadequate. Therefore, the claims must be remanded for additional development of the medical record pursuant to 38 C.F.R. § 3.159(c)(4). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for the appropriate VA examination to determine whether there is a causal relationship between his active military service and hypertension. The claims file must be made available to the examiner for review, and the examination report should reflect that such review has been accomplished. All necessary testing should be conducted and all appropriate diagnoses rendered. The examiner must then provide an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that hypertension had its origin in service or is in any way related to the Veteran's active service. All opinions expressed must be supported by complete rationale. If the examiner is unable to provide the requested opinion(s) without resorting to speculation, it should be so stated and he or she must discuss why an opinion is not possible. 2. Schedule the Veteran for the appropriate VA examination to determine whether there is a causal relationship between his active military service and benign prostate hypertrophy. The claims file must be made available to the examiner for review, and the examination report should reflect that such review has been accomplished. All necessary testing should be conducted and all appropriate diagnoses rendered. Then, the examiner must provide an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that benign prostate hypertrophy had its origin in service or is in any way related to the Veteran's active service. All opinions expressed must be supported by complete rationale. If the examiner is unable to provide the requested opinion(s) without resorting to speculation, it should be so stated and he or she must discuss why an opinion is not possible. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of hypertensive retinopathy and cataracts. All necessary tests should be performed and the claims file reviewed. The examiner must comment on the January 2009 unsupported nexus opinion regarding cataracts and then provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that hypertensive retinopathy and cataracts were caused or aggravated by the Veteran's service-connected diabetes mellitus, type II, and /or military service. If the examiner finds that hypertensive retinopathy and/or cataracts are aggravated (permanently worsened) by diabetes, he/she should indicate the degree of disability before it was aggravated and its current degree of disability. If the eye disabilities were not caused or aggravated by diabetes mellitus, type II, the examiner should state so. All opinions expressed must be supported by complete rationale. If the examiner is unable to provide the requested opinion(s) without resorting to speculation, it should be so stated and he or she must discuss why an opinion is not possible. 4. Schedule the Veteran for the appropriate VA examination to determine whether there is a causal relationship between active military service and an acquired psychiatric disorder. The claims file must be made available to the examiner for review, and the examination report should reflect that such review has been accomplished. All necessary testing should be conducted and all appropriate diagnoses rendered. For each psychiatric disorders found, the examiner must provide an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that such disorder had its origin in service or is in any way related to the Veteran's active service. The examiner should specifically state whether it is at least as likely as not that each diagnosed psychiatric disorder is related to service or any event of service and not the result of willful misconduct (alcohol or substance abuse). All opinions expressed must be supported by complete rationale. If the examiner is unable to provide the requested opinion(s) without resorting to speculation, it should be so stated and he or she must discuss why an opinion is not possible. 5. Thereafter, the issues remaining on appeal should be readjudicated. If the benefits sought are not granted, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate time period within which to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ Kristi Barlow Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs