Citation Nr: 1330653	
Decision Date: 09/24/13    Archive Date: 09/30/13

DOCKET NO.  10-09 485	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUES

1.  Entitlement to service connection for hepatitis C.

2.  Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD).


REPRESENTATION

Veteran represented by:	California Department of Veterans Affairs


ATTORNEY FOR THE BOARD

L. J. N. Driever



INTRODUCTION

The Veteran had active service for in excess of four years, including from April 1986 to May 1987.  

These claims come before the Board of Veterans' Appeals (Board) on appeal of a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California.  The RO in Oakland, California has since certified these claims to the Board for appellate review.  

The Board remanded these claims to the RO for additional development in September 2012.

During the course of this appeal the Veteran requested a video conference hearing before the Board.  The RO acknowledged this request and informed the Veteran of the date of the scheduled hearing by letter dated March 2012.  However, on that date, the Veteran failed to report.  Given that he did not request a postponement of the hearing prior to that date, the Board deems his hearing request withdrawn pursuant to 38 C.F.R. § 20.704(d) (2012). 


FINDINGS OF FACT

1.  The evidence is in relative equipoise on the matter of whether the Veteran's hepatitis C is related to blood exposure during his active service.

2.  The Veteran's PTSD symptoms, from which his other psychiatric symptoms are indistinguishable, are related to a verified in-service stressor.



CONCLUSIONS OF LAW

1.  Resolving reasonable doubt in the Veteran's favor, hepatitis C was incurred in service.  38 U.S.C.A. §§ 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012).  

2.  A psychiatric disability, including PTSD, was incurred in service.  38 U.S.C.A. 
§ 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  VA's Duties to Notify and Assist

Upon receipt of a complete or substantially complete application for benefits, VA is tasked with satisfying certain procedural requirements outlined in the VCAA and its implementing regulations.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

Specifically, VA is to notify a claimant and his representative, if any, of the information and medical or lay evidence not previously provided to the Secretary that is necessary to substantiate the claim.  As part of the notice, VA is to specifically inform the claimant and his representative, if any, of which portion of the evidence the claimant is to provide and which portion of the evidence VA will attempt to obtain on the claimant's behalf.  38 U.S.C.A. § 5103(a), 5103A (West 2002); 38 C.F.R. § 3.159(b), (c) (2012).  VA is also to assist this claimant in obtaining evidence necessary to substantiate a claim, but such assistance is not required if there is no reasonable possibility that it would aid in substantiating the claim.  38 U.S.C.A. §§ 5103(a), 5103A (West 2002); 38 C.F.R. § 3.159(b), (c) (2012). 

With regard to the Veteran's claims, given the Board's favorable disposition, there is no need to discuss whether VA has complied with the duties the VCAA requires.  Rather, any lack of compliance is non-prejudicial or harmless, not affecting the essential fairness of this adjudication.  38 C.F.R. § 20.1102 (2012); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (clarifying that VCAA notice and assistance errors, even when shown to have occurred, are not presumptively prejudicial, but instead must be judged on an individual case-by-case basis, and that, as the pleading party attacking the agency's decision, the claimant bears the burden of proof of not only establishing this error, but also, above and beyond that, showing that it is unduly prejudicial or outcome determinative of his claim).  

II.  Analysis

The Veteran seeks service connection for hepatitis C and a psychiatric disorder, including PTSD, on a direct basis, as related to his active service.  He claims that he developed the hepatitis C in service, but because at that time, there was no test for such a condition, he was diagnosed with hepatitis A based on a positive IgG.  He asserts that it is now evident that that finding represents a marker for hepatitis C, from which he now suffers.  

The Veteran also claims that he developed a psychiatric disability secondary to two in-service stressors, including witnessing a gruesome death of a crew chief in 1984 and being the subject of a personal assault, both of which occurred at Eglin Air Force Base.  He asserts that, after the first incident, he began drinking heavily and using drugs and his work performance ratings decreased.  

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service.  38 U.S.C.A. 
§ 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012).  

To prevail on the issue of service connection, there must be competent evidence of: (1) a current disability; (2) in-service occurrence or aggravation of a disease or injury; and (3) a nexus between the in-service injury or disease and the current disability.  Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).  Once evidence is determined to be competent, its credibility must be evaluated.  Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency, a legal concept focusing on whether testimony may be heard and considered, and credibility, a factual determination focusing on the probative value of the evidence); see also Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994) (in rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). 

To establish entitlement to service connection for PTSD, a claimant must submit medical evidence diagnosing PTSD in accordance with Sec. 4.125(a) of this chapter; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred.  38 C.F.R. § 3.304(f) (2012). 

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also include statements conveying sound medical principles found in medical treatises or authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1) (2012).

A layperson is generally incapable of opining on matters requiring medical knowledge.  Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998).  In certain instances, however, a lay statement may be deemed competent and adequate to support a claim for service connection by substantiating the occurrence of lay-observable events or a disability or symptoms of disability subject to lay observation.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence); Barr v. Nicholson, 21 Vet. App. 303 (2007) (layperson is competent to report disease with unique and readily identifiable features such as varicose veins); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009).

Medically recognized risk factors for hepatitis C include: (a) transfusion of blood or blood product before 1992; (b) organ transplant before 1992; (c) hemodialysis; 
(d) tattoos; (e) body piercing; (f) intravenous drug use (with the use of shared instruments); (g) high-risk sexual activity; (h) intranasal cocaine use (also with the use of shared instruments); (i) accidental exposure to blood products as a healthcare worker, combat medic, or corpsman by percutaneous (through the skin) exposure or on mucous membrane; and (j) other direct percutaneous exposure to blood, such as by acupuncture with non-sterile needles, or the sharing of toothbrushes or shaving razors.  VBA Training Letter 211A (01-02) (Apr. 17, 2001).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA is to give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 

A.  Hepatitis C

The evidence of record pertaining to this claim satisfies all elements of a service connection claim.  VA treatment records dated since 2008, including laboratory findings and biopsy results, and a report of a VA examination conducted in March 2013, establish that the Veteran currently has hepatitis C. 

Other evidence establishes the occurrence of a possibly related in-service event or events.  According to the Veteran's service treatment and personnel records, during service, an examiner diagnosed the Veteran with a positive hepatitis A IgG and, the Veteran used drugs and was discharged for misconduct - drug abuse.  Subsequent statements the Veteran made for the purposes of treatment, rather than in support of this claim, suggest that the Veteran used multiple drugs during service, including cocaine, a known risk factor for developing hepatitis C.  The Veteran also claims that, during service, he was exposed to blood while cutting himself when he was working on the flight line.  This blood exposure too is a risk factor for developing hepatitis C, and the Board finds that the Veteran's statement that he was exposed to blood during service to be competent and credible.   

Finally, during the course of this appeal, the Veteran underwent two VA examinations for the purpose of obtaining medical opinions addressing whether the Veteran's hepatitis C was incurred in service, including secondary to any event noted above.  

The first, dated December 2008, rules out a relationship between the hepatitis C and service on the basis that the Veteran was diagnosed with positive hepatitis A IgG during service, had been eating seafood twice weekly and drinking one to two beers daily prior to that time, had no history of blood transfusions or IV drug use, and, at separation, was noted to have fully recovered.  

The second, dated March 2013, links the hepatitis C and service on the basis that one cannot say for sure that the positive IgG shown during service is not representative of hepatitis C and testing for hepatitis C was not available until 1992.  The examiner noted that the Veteran had documented drug abuse during service, but was unable to find record of IV drug abuse which is the stronger drug abuse risk factor for acquiring hepatitis C.  Therefore, the examiner concluded that the Veteran's hepatitis C was at least as likely as not acquired during service due to blood exposure.

These opinions - one favorable and one unfavorable - are in relative equipoise regarding the nexus element of this claim .  As such, the Board must give the benefit of the doubt to the Veteran and resolve this claim in his favor under 38 U.S.C.A. § 5.107(b) (West 2002).  Therefore, the Board finds that the Veteran's hepatitis C was acquired during service due to blood exposure and service connection is warranted.


B.  Psychiatric Disorder, including PTSD

The evidence of record also satisfies all elements of the Veteran's claim for service connection for a psychiatric disability, including PTSD.  According to VA treatment records dated since 2008, a May 2008 report from the Vet Center and a report of VA mental health examination conducted in March 2013, the Veteran has a psychiatric disability, variously diagnosed, including as PTSD, adjustment disorder and depression.  According to the VA examination report, symptoms of the Veteran's other psychiatric disorders are indistinguishable from those of his PTSD.  This evidence satisfies the first element of a PTSD claim under 38 C.F.R. § 3.304(f) and the current disability element of a general service connection claim.  

The March 2013 VA examination report satisfies the second element of a PTSD claim under 38 C.F.R. § 3.304(f) and the nexus element of a general service connection claim as it includes the VA examiner's opinion linking the Veteran's PTSD (and indistinguishable other psychiatric disabilities) to his reported in-service stressors, including witnessing the death of a fellow soldier and being the subject of a personal attack.  Both of these stressors allegedly occurred at Eglin Air Force Base.  

The RO refrained from attempting to verify the alleged stressors and denied the Veteran's claim for service connection for an acquired psychiatric disorder, to include PTSD, on the basis that there is no evidence to support the Veteran's contentions that his squadron (identified as the 3207th MMS) was stationed at Eglin Air Force Base.  According to his service treatment records and service personnel file, however, the Veteran served on that base as alleged with the unit identified and, while there, received treatment for various medical complaints, including some involving substance abuse and mental health.  

The Veteran's service personnel records and statements satisfy the third element of a PTSD claim under 38 C.F.R. § 3.304(f) and the in-service event element of a general service connection claim.  Initially, while serving on active duty, the Veteran performed his duties in an exceptional manner, sought higher responsibilities, was devoted to his duty and military bearing and left little to be desired.  His supervisors described him as highly energetic and motivated with an excellent appearance.  In January 1997, a urinalysis revealed that he was using marijuana.  This drug use resulted in his discharge from service.  His performance reports do not confirm the allegation that he received decreased ratings during this time frame, but they suggest that something happened during service, which caused the Veteran to go astray.  As there is no reason to doubt the Veteran's credibility, the Board accepts as true that the alleged stressors occurred as described.  

In view of the foregoing, the Board finds that service connection for a psychiatric disability, including PTSD, is warranted.


ORDER

Service connection for hepatitis C is granted.

Service connection for a psychiatric disability, including PTSD, is granted.


____________________________________________
P. M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs