Citation Nr: 1304969 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 04-06 549 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a psychiatric disorder. 2. Entitlement to service connection for hepatitis C, to include as secondary to a psychiatric disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1968 to September 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied entitlement to service connection for a psychiatric condition and hepatitis C. The Veteran testified at a Board hearing at the RO in Philadelphia, Pennsylvania in February 2006. This transcript has been associated with the file. The case was brought before the Board in June 2006, April 2008, May 2009, and most recently May 2011, at which time the claims were remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his appeal, to include obtaining private treatment records, obtaining outstanding service treatment records, requesting additional information from the Veteran, and soliciting an addendum opinion from the June 2010 VA examiner. In May 2011 and September 2011 the AOJ requested the Veteran return an authorization for release of records and provide additional information pertaining to his tattoos. The Veteran did not respond on either occasion. As will be discussed below, "[T]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran's service treatment records from Fort Meade were obtained and associated with the claims file in October 2011. The June 2010 VA examiner also provided an addendum opinion in March 2012 as to the nature and etiology of the Veteran's claimed psychiatric condition. Therefore, the Board finds that there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). FINDINGS OF FACT 1. The preponderance of the evidence reflects that the Veteran does not have a psychiatric disorder due to any incident of his active duty service. 2 The Veteran's hepatitis C is not due to any incident of service, nor was it caused or chronically worsened by a service-connected disability. CONCLUSION OF LAW 1. The Veteran's psychiatric disorder was not incurred in or aggravated by military service, nor may a psychiatric disorder be presumed to be of service onset. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). 2. The Veteran's hepatitis C was not incurred in or aggravated by any incident of service, nor was it proximately caused or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to review the entire record, the Board does not have to discuss each piece of evidence reviewed. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2011). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The notice requirements were met in this case by letters sent to the Veteran in March 2002 and July 2006. The March 2002 letter advised the Veteran of the information necessary to substantiate his claim, and of his and VA's respective obligations for obtaining specified types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). The July 2006 letter also advised the Veteran of how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the Veteran was not provided adequate 38 U.S.C.A. § 5103(a) notice prior to the adjudication of the claim in the May 2002 rating decision, the Board finds that providing him with adequate notice in the July 2006 letter followed by a readjudication of the claim in the January 2008, September 2008, November 2010, and May 2012 supplemental statements of the case 'cures' any timing problem associated with inadequate notice or the lack of notice prior to the initial adjudication. Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34. Additionally, the Board finds that even if the above letters failed to provide the Veteran with adequate 38 U.S.C.A. § 5103(a) notice, this notice problem does not constitute prejudicial error in this case because the record reflects that a reasonable person could be expected to understand what was needed to substantiate the claim after reading the above letters as well as the rating decision, statement of the case, and supplemental statement of the case. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009). Furthermore, the Board finds that there can be no prejudice to the Veteran due to a lack of adequate 38 U.S.C.A. § 5103(a) notice where, as here, none has been specifically alleged. Id. The Veteran has not alleged that VA failed to comply with the notice requirements of the VCAA, and he was afforded a meaningful opportunity to participate effectively in the processing of his claim, and has in fact provided additional arguments at every stage. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA treatment records are in the file. The Board has also obtained private treatment records and associated them with the claims file. The Board requested records from Temple Hospital in August 2002, but no response was received. Also, as noted above, in the May 2011 Board remand it was requested the AOJ obtain private treatment records from the Northwestern Institute as a September 2002 response indicated they could not currently print the Veteran's records as they were on microfiche and their printer was broken. The Board observes that records from Northwestern Institute have been provided piecemeal throughout the appeals period. In May and September 2011 statements from the AOJ the Veteran was requested to sign an authorization form to obtain any outstanding records from the Northwestern Institute. As noted, the Veteran did not respond to these requests and as such, the records could not be obtained. The Board finds no further action could be taken by the AOJ on this matter. See Wood, supra. As such, the Board finds the duty to assist with obtaining medical records has been satisfied. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in service event, and (4) insufficient evidence to decide the case. The Veteran was afforded a VA medical examination in June 2010, with addendum opinions provided in August 2010 and March 2012, for his claims. These opinions were rendered by medical professionals following a thorough examination and interview of the appellant and review of the claims file. The examiners obtained an accurate history and listened to the appellant's assertions. The examiners laid a factual foundation and reasoned basis for the conclusions that were reached. Therefore, the Board finds that the examinations are adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder on a direct basis, generally there must be probative evidence of (1) a current disability; (2) in service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in- Service connection may also be granted for a chronic disease, including certain psychoses, when it is manifested to a compensable degree within one year of separation from service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or the result of service-connected disease or injury or that service-connected disease or injury has chronically worsened the disability for which service connection is sought. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Psychiatric Condition The Veteran contends that he suffers from a psychiatric disorder which began, or was caused, by his active duty service. As discussed below, the Board finds service connection is not warranted. Every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment. 38 C.F.R. § 3.304(b). A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows the increase in disability is due to the natural progression of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. In order to rebut the presumption of sound condition, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See Wagner v. Principi, 370 F 3d 1089, 1096 (Fed. Cir. 2004); VAOPGCPREC 3-2003 (July 16, 2003). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. Id. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progression of the preexisting condition. 38 U.S.C. § 1153; 38 C.F.R. § 3.306; Wagner, supra. If this burden is met, then the Veteran is not entitled to service-connected benefits. Wagner at 1096. The Board has reviewed the Veteran's service treatment records and notes that he was given a medical examination at entrance to service in January 1968. On his self reported Report of Medical History he reported that he had a history of "nervous trouble" with no further discussion. There were no psychiatric problems reported or observed by the examiner during the objective clinical portion of the enlistment examination. The examiner found that the Veteran was medically qualified for entrance to service. Thus he was presumed sound at entrance to service. The Veteran was treated with various health complaints while in service, however at no time was he diagnosed with a psychiatric condition. In April 1968 he was treated at Fort Gordon with complaints of an upper respiratory infection. He complained of dizziness and blacking out which had existed for 2 months. The examiner also made a note that the Veteran was nervous. He was released from sick call after 6 days. The Veteran was again treated for an upper respiratory infection at Fort Meade in December 1968. He also reported headaches, light-headedness, a sore throat, and general malaise. He was released from sick call after 2 days. The Board observes the Veteran's wife, mother, and family friends wrote in letters to support a hardship discharge for the Veteran as his wife and mother were ill and needed help supporting his 4 children. The Veteran's mother stated that she was worried for his well being if he was not discharged and she was concerned he would go Absent Without Leave (AWOL) again. Ultimately the Veteran was granted a hardship discharge. However, on his separation examination August 1970 the Veteran did not report any further nervous trouble or other psychiatric disorder, nor was one diagnosed on examination. Although he had entered service with an admitted history of nervous trouble, that mere notation of a prior medical history of this condition during his military enlistment examination does not rise to the level of concluding he had pre-existing disability. This is especially true since, on objective physical examination, his psychiatric evaluation was grossly normal. The Court has held that the regulation provides expressly that the term "noted" denotes only such conditions as are recorded in examination reports, and that a mere history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions. 38 C.F.R. § 3.304(b)(1); Crowe v. Brown, 7 Vet. App. 238 (1994). There are no complaints or diagnosis of a psychiatric condition while in service, although he was treated for other conditions. This evidence weighs against the Veteran's claim that he has a psychiatric disorder which began in service and continued on thereafter. The Board acknowledges that even if a chronic condition is not shown during service, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of continuity of symptomatology or under 38 C.F.R. § 3.303(d) if the evidence shows a disease first diagnosed after service was incurred in service. The first post-service evidence of a psychiatric disorder comes from an October 1977 private treatment record where the Veteran was noted to have been treated for the past 2 months and was prescribed medication for psychiatric disorders. A January 1978 private treatment record noted the Veteran was hospitalized from January 5, 1978 to January 26, 1978 for personality disorder, depression, and alcohol and drug dependence. He reported drinking while in service, but not excessively. His psychiatric disorders were not linked to service. A private treatment statement in May 1979 stated the Veteran had been receiving psychiatric treatment for "some time" and was believed to be unemployable due to this condition. This statement did not give a diagnosis or indicate exactly how long the Veteran had been treated. The Veteran was hospitalized from September 9, 1980 to October 7, 1980 with diagnoses of drug abuse, anxiety disorder, and passive dependent personality disorder. His depression was linked to family problems, back pain, and the inability to find a job. There was no opinion that any psychiatric disorder was related to service. The Veteran was hospitalized from August 20, 1982 to September 9, 1982 in a private treatment facility for increasing depression and suicidal ideation. He was noted to have a long psychiatric history which included polysubstance abuse. He was diagnosed with recurrent major depressive disorder, mixed substance abuse, and borderline personality disorder. There is no evidence he reported suffering from a psychiatric disorder since service and his diagnoses were not linked to his active duty service. The Veteran was hospitalized from January 27, 1987 to March 6, 1987 for polysubstance abuse, suicidal ideation, depression, and minimal compliance with treatment. Again there is no opinion that the Veteran's psychiatric disorders were related to service. In a 1987 VA treatment record the Veteran reported that he had been receiving psychiatric treatment since 1976. Also in a June 1987 VA treatment record the Veteran reported that he had been receiving drug dependence treatment since the mid-late 1970's. The Veteran was again hospitalized from June 17, 1987 to October 26, 1987 at the VA Medical Center. His diagnoses included drug dependence, opiate withdrawal, and panic disorder. The Veteran did not report that he had been suffering from these conditions since service and the VA examiners did not opine that these conditions were related to service. In a January 1993 VA treatment record the Veteran reported that he had emotional problems while on active duty and that is why he was not sent to Vietnam. The examiner noted the Veteran had been hospitalized on multiple occasions for drug and alcohol abuse and depression. The Veteran was given a psychiatric evaluation from the Social Security Administration (SSA) in May 1995. He reported his emotional problems began in 1979, but he did not know of a stimulus that caused these problems. Ultimately the Veteran was granted benefits from the SSA in a July 1997 decision due to his depression and anxiety disorder. In an April 1996 VA examination for non-service-connected pension the Veteran was noted to have depression and anxiety. In a July 1996 VA treatment record the Veteran was diagnosed with schizoaffective disorder. In a September 1999 VA treatment record the Veteran was noted to have a long history of substance dependence, depression and anxiety and questionable PTSD. In a November 1999 VA treatment record the Veteran was noted to have chronic anxiety; he stated that it began in 1977. A March 2002 VA treatment record noted the Veteran had recently quit his job which decreased his stress. He still had depression and anxiety. The Veteran tested positive for a PTSD screen in a July 2005 VA treatment record and the Board observes he was attending a PTSD/pain group as shown by May and July 2004 VA treatment records. There is no additional evidence that the Veteran has received a diagnosis of PTSD or that his psychiatric disorders are related to service. At his February 2006 Board hearing the Veteran testified that he was hospitalized at Fort Meade for 2 weeks for psychiatric care and that he regularly met with a chaplain at Fort Bragg because he had suicidal ideations. He also testified that his mental health problems began in approximately 1973. The Veteran was again diagnosed with generalized anxiety disorder, panic disorder, major depression, and opioid and alcohol dependence in remission. See March 2006 VA treatment record. The Veteran also reported survivor's guilt at having not gone to Vietnam. Id. An April 2009 VA examiner diagnosed the Veteran with major depressive disorder, panic disorder, and substance abuse. In a June 2009 VA treatment record the Veteran reported that he was feeling really depressed and that he believed it was due to his leg pain and neuropathy, as well as his marital problems. In an April 2010 VA treatment record the Veteran reported that his depression had increased and he was more withdrawn. He stated that his niece and nephew had killed themselves in the past 8 months. The Veteran was afforded a VA examination in June 2010. The claims file was unavailable for review. The Veteran reported that he experienced anxiety and depression and guilt over not going to Vietnam. He also reported that he had no psychiatric conditions when he entered service. The Veteran also stated that he was hospitalized at either Fort Gordon or Fort Meade for anxiety and depression. The examiner diagnosed the Veteran with major depressive disorder and panic disorder and stated it was at least as likely as not related to service. His rationale was that the Veteran stated he was hospitalized in service for psychiatric treatment and that the Veteran reported no psychiatric history prior to entering service. In August 2010 the June 2010 VA examiner offered an addendum opinion after reviewing the claims file. He stated that he could find no evidence that the Veteran was hospitalized for psychiatric reasons during service. He further stated that he could not change his previous opinion other than what the Veteran had previously told him about being hospitalized in service. The May 2011 Board remand found that the June 2010 VA examiner was relying solely on the Veteran's statements that he was hospitalized in service for a psychiatric disorder when coming to his opinion. However, there is no evidence, outside the Veteran's statements, that this actually occurred. The U.S. Court of Appeals for Veterans Claims (Court) has held that a medical opinion based upon an inaccurate factual premise has no probative value. See Reonal v. Brown, 5 Vet. App. 458 (1993). As such, this opinion is afforded little probative weight. In March 2012 the June 2010 VA examiner offered an addendum opinion. He stated that he had reviewed the complete claims file, including evidence received since his August 2010 opinion. The examiner found no evidence to indicate that the Veteran was hospitalized for psychiatric care while on active duty. There was evidence of treatment for an upper respiratory infection, but this was the only hospitalization noted. The examiner noted the Veteran had been diagnosed with depressive disorder, panic disorder, and substance abuse problems. He also acknowledged one VA treatment record which listed the Veteran's depression beginning at age 30, after he separated from service. Ultimately the examiner opined it was unlikely that the Veteran's depression or psychiatric illnesses were caused by the military. His rationale was that there was no evidence of psychiatric treatment in service and there was a gap in separation from service and when treatment began. The Board observes that the examiner provided a statement at the end of his report that he had "carefully examined as much of the material as was possible," however in the middle of his report he also stated he had "now been able to review the complete file." To the extent that an argument can be made that the examiner did not thoroughly review the claims file, the Board finds otherwise. Although the claims file was not present at the June 2010 VA examination, the examiner reviewed the file for his August 2010 addendum opinion and then had another opportunity to review additional evidence to provide his March 2012 opinion. Furthermore, neither the Veteran nor his representative has argued that the examiner's March 2012 opinion fails to take into account records which were not cited to. The Board also finds no evidence that the March 2012 opinion missed relevant evidence in the claims file. As such, the Board finds the opinion adequate. As noted above, the Veteran has been diagnosed with multiple psychiatric diagnoses since separation from service. It also appears he was receiving treatment as early as 1977, 7 years after separation from service, for various psychiatric conditions. Even taking this into account, the objective evidence does not reflect continuity of symptomatology since the Veteran's separation from service in 1970. The evidence of record includes the Veteran's statements and testimony asserting continuity of symptoms with respect to his psychiatric disorders since active duty service. The Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Furthermore, an absence of evidence of a disorder may not be considered substantive negative evidence. See Buczynski v. Shinseki, 24 Vet. App. 221 (2011). The exception is "where the silence in regard to a condition can be taken as proof that a doctor did not observe the symptom" or if the fact would have normally been recorded. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Buczynski, supra. The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir.1996) (table); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, there is no dispute that the Veteran is competent to report symptoms of depression and anxiety, as well as other psychiatric symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 at n.4 (Fed. Cir. 2007) ("Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer."). In such cases, the Board is within its authority to weigh that testimony and to make a credibility determination. Here, the Board finds that the Veteran's reported history of a continued psychiatric disorder since active service, while competent, is nonetheless not credible. Emphasis is placed on the fact that the Veteran did not report psychiatric symptoms while in service, nor was a disorder diagnosed, the negative VA examiner's opinion, and the lack of a positive medical opinion linking a psychiatric disorder to service. As noted above, the Board cannot make a determination that the lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence. See Buchanan, supra; Kahana, supra; Buczynski, supra. However, the Board can weigh the Veteran's service treatment records against the Veteran's contentions that his psychiatric disorder is related to service. The Veteran testified that he was treated at Fort Meade for two weeks for a psychiatric disorder. See February 2006 Board hearing transcript. The Veteran was treated at Fort Meade, and Fort Gordon, but for upper respiratory infections. The Veteran also did not report any psychiatric conditions on his Report of Medical History on separation from service in August 1970. It is unclear why the Veteran reported other ailments during this time period but failed to report any psychiatric symptoms. Unfortunately, this evidence weighs against the Veteran's claim that he has suffered from a psychiatric disorder since separation from service. Accordingly, the Board finds the Veteran's statements asserting continuity of symptomatology since service lack credibility and are without probative value. See, e.g. Madden v. Gober, 125 F.3d 1477, 1481 (1997) (the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration a Veteran's statements, it may consider whether self-interest may be a factor in making such statements). Next, service connection may be granted when the evidence establishes a nexus between active duty service and current complaints. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's psychiatric disorder to active duty. To that end, the Board has considered the VA and private treatment records, as well as the June 2010, August 2010, and March 2012 VA examiner's opinions. As noted above, the June 2010 and August 2010 VA examination opinions are based on an inaccurate premise, that the Veteran was hospitalized for psychiatric treatment at either Fort Gordon or Fort Meade. As has been discussed, the Veteran's statements that he was hospitalized for psychiatric treatment are outweighed by the evidence of record. This includes no treatment for a psychiatric disorder in service, and no evidence of an in service chronic diagnosis for a psychiatric disorder. This leaves the March 2012 VA examination report which found that it was unlikely that the Veteran's psychiatric disorder was related to service. The examiner provided a rationale to support this opinion after considering the Veteran's assertions that he had had continuing psychiatric disorders since service, which was discussed in detail above and will not be repeated. He specifically noted the Veteran's hospitalization for upper respiratory infections in service and that there were no complaints or diagnoses of a psychiatric disorder while in service. He also noted that the Veteran related his current psychiatric disorder to being hospitalized while in service, but that there was no evidence of this in the claims file. Here, while the Veteran is competent to describe his in service psychiatric symptoms as well as his current symptoms, the Board accords his statements regarding the etiology of such disorders little probative value as he is not competent to opine on such a complex medical question. See Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet. App. 124, 127 (1998) citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Additionally, the Veteran has offered only conclusory statements regarding the relationship between his in service psychiatric symptoms and his current disorders. In contrast, the March 2012 VA examination and opinion are adequate for evaluation purposes. Specifically, the examiner reviewed his service and post-service treatment records, considered his reported history, interviewed the Veteran, and performed an examination. Therefore, the Board finds the VA examiner's opinion to be of great probative value. As such, the preponderance of the evidence weighs against a finding that the Veteran's psychiatric disorder is due to any event or injury in service. While the Veteran has been diagnosed with schizoaffective disorder and psychotic disorder, there is no evidence he was diagnosed with these conditions within one year after separation from service. See April 1995 SSA evaluation and July 1996 VA treatment record. As such, the presumption of service connection does not apply in the instant case. 38 C.F.R. §§ 3.307, 3.309(a). The Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for a psychiatric disorder. The Board finds credible the Veteran's report that he currently has psychiatric diagnoses. However, there is no credible evidence indicating that a psychiatric disorder began during service or that the Veteran experienced a continuity of symptomatology since service. Accordingly, the Board concludes that the competent, probative evidence is against the claim of service connection for a psychiatric disorder on a direct and presumptive basis and the benefit of the doubt rule does not apply. See 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Hepatitis C The Veteran alleged his hepatitis C was the result of in service inoculations. The Veteran contends that he received his inoculations by an air gun and was exposed to other people's blood during this process as multiple service members received inoculations using the same air gun. He further contends that his hepatitis C is secondary to his psychiatric disorder. As discussed below, the Board finds service connection is not warranted. A VA "Fast Letter" issued in June 2004 (Fast Letter 04-13, June 29, 2004) discussed hepatitis C and 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). The letter further reported that although it was "biologically plausible" that hepatitis C could be transmitted through an air gun, there were no documented cases of transmission of hepatitis C by an air gun, and there was no scientific evidence to prove transmission could occur this way. The Veteran was afforded medical evaluations at entrance to and separation from service, in January 1968 and August 1970, respectively. At the entrance examination there were no complaints or diagnosis of hepatitis C. At the August 1970 separation examination the examiner did not report that the Veteran had hepatitis C and ultimately found him qualified for separation. The only risk factor for hepatitis C which the Veteran has identified while in service is the air gun inoculation. In the May 2011 Board remand it was also noted that at his separation examination the examiner reported a tattoo on the Veteran's right shoulder; this was not identified on his entrance examination in January 1968. In May and September 2011 statements the Veteran was asked whether he received a tattoo in service. However, he failed to provide any response to this inquiry and at no time has he ever stated that he did in fact receive a tattoo while on active duty. Furthermore, the service treatment records are devoid of any complaints, diagnoses, or treatments consistent with the Veteran's claim that he incurred hepatitis C in service. Even if a chronic condition was not shown during service, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of continuity of symptomatology or under 38 C.F.R. § 3.303(d) if the evidence shows a disease first diagnosed after service was incurred in service. There is no evidence of record to indicate the Veteran was diagnosed with hepatitis C until a VA record dated December 1999, approximately 29 years following separation from service. The Board may, and will, consider in its assessment of a service connection the passage of a lengthy period of time wherein the veteran has not complained of the malady at issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. Principi, 284 F.3d 1335, 1358 (Feb. Cir. 2002) (en banc). Post-service, the Board notes that the Veteran was diagnosed with hepatitis C in approximately 1999. See December 1999 VA treatment record. After reviewing the Veteran's post-service medical records, there is no opinion which provides an etiological link between the Veteran's currently diagnosed hepatitis C and service. The Veteran was afforded a VA examination in June 2010. At this examination the Veteran reported risk factors for hepatitis C to include a history of parenteral drug use in the 1990s and multiple tattoos. See also September 1980 private treatment record noting multiple tattoos on both arms. In an October 1999 VA treatment record the Veteran also indicated a history of intravenous drug use. At his June 2010 VA examination he reported a history of heavy alcohol use from 1971 to 1996. The June 2010 examiner did not provide an opinion as to whether the Veteran's hepatitis C was directly related to service, as he was only asked to comment on secondary service connection, discussed below. The Board acknowledges the Veteran has indicated he suffers from hepatitis C as a result of in service inoculations. The Veteran is competent to give evidence about what he experienced; for example, he is competent to discuss his current pain and other experienced symptoms. See, e.g., Layno, supra. The Board is also mindful that competent medical evidence is not necessarily required where the determinative issue in a case involves medical causation or a medical diagnosis. Davidson v. Shinseki, 581 F.3d 1313, 1316 (2009), citing Jandreau, supra; see also Barr, supra (lay testimony is competent to establish the presence of varicose veins); Woehlaert, supra (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis). While the Veteran is competent to report (1) symptoms observable to a layperson, e.g., pain; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, he is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition. See Davidson, supra. In this case, the Veteran is not providing statements related to the diagnosis of a simple disorder or about symptomatology but is instead rendering an opinion as to the etiology and nature of his hepatitis C. The Board concludes that the Veteran's statements as to the origin of hepatitis C do not constitute competent evidence. As a layperson, he is not competent to provide evidence that requires medical knowledge because he lacks the requisite professional medical training, certification and expertise to present opinions regarding such matters. Espiritu, supra. Therefore, the Veteran's statements regarding the etiology of his hepatitis C in this case do not constitute competent evidence on which the Board can make a service connection determination. In sum, the Board finds that there is no evidence of hepatitis C during active service. The threshold question is whether there is sufficient evidence to establish an etiological link between the Veteran's current diagnosis of hepatitis C and his active service. The Board finds that the preponderance of the evidence is against the Veteran's claim. The Veteran has produced no competent evidence or medical opinion in support of his claim that his hepatitis C is the result of an in service inoculation or has any other etiological relationship to his active service. With regard to secondary service connection, the Veteran maintains that he currently suffers from hepatitis C as secondary to his psychiatric disorder. The Veteran was afforded a VA examination in June 2010 for his hepatitis C and the examiner opined his hepatitis C was not related to his depression. He opined his hepatitis C was more likely caused by parenteral drug use, non-sterile needles for tattoos, or unsafe sexual practices. If these risk factors were related to his depression, then hepatitis C could be indirectly related. An August 2011 VA examiner also opined he had reviewed the Veteran's claim file and June 2010 opinion and stated that the Veteran's hepatitis C bears no relationship whatsoever to his depression. As discussed, the Board finds the Veteran is not entitled to service connection for a psychiatric disorder. Thus, as a matter of law, the Veteran's claim for service connection for hepatitis C as secondary to a psychiatric disorder must fail. Insofar as the condition to which the Veteran claims the disability is secondary has not been granted service connection, the claim for secondary service connection must also fail. See 38 C.F.R. § 3.310. For this reason, the Veteran's claim for secondary service connection must be denied as without legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the Board should deny the claim based on a lack of legal merit). The Board concludes service connection must be denied. As reflected by the discussion above, the preponderance of the evidence is against the Veteran's claim. As such, the benefit-of-the-doubt rule does not apply, and the claim for service connection for hepatitis C is denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a psychiatric disorder is denied. Entitlement to service connection for hepatitis C is denied. ____________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs