Citation Nr: 1337576 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 07-39 151 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder. 2. Entitlement to service connection for chemical dependency, including illegal drugs or alcohol dependency, to include as due to an acquired psychiatric disorder. 3. Entitlement to service connection for hepatitis A or B. 4. Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION The Veteran served on active duty from February 1978 to September 1980. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In a January 2007 rating decision, the RO denied service connection for depression. Although the Veteran did not appeal this rating decision, the claim on appeal has been recharacterized as a claim of entitlement for an acquired psychiatric disorder in light of Clemons v. Shinseki, 23 Vet. App. 1 (2009). In November 2011 the Board remanded the case to the RO for further development. FINDINGS OF FACT 1. The preponderance of the competent evidence is against a finding that an acquired psychiatric disorder is related to service. 2. The preponderance of the competent evidence is against a finding that any chemical dependency, including illegal drugs or alcohol dependency, is related to service or to a service-connected disability, or that any preexisting chemical dependency was aggravated during service. 3. The Veteran has not had hepatitis A or B during the appeal period. 4. The preponderance of the competent evidence is against a finding that Hepatitis C is related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder have not been met. 38 U.S.C.A. §§ 1101, 1110, 1154(a), 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.301, 3.303, 3.304, 3.307, 3.309, 3.310 (2013). 2. The criteria for service connection for chemical dependency, including illegal drugs or alcohol dependency, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1154(a), 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.301, 3.303, 3.304, 3.306, 3.310 (2013). 3. The criteria for service connection for hepatitis A or B have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). 4. The criteria for service connection for hepatitis C have not been met. 38 U.S.C.A. §§ 1101, 1110, 1154(a), 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.301, 3.303, 3.304, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. A letter sent to the Veteran in April 2006 prior to the initial adjudication satisfied the duty to notify provisions. Additional letters sent in March 2009 and January 2012 provided additional notice. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b) (1). These letters also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claims were subsequently readjudicated, most recently in a November 2012 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 556 U.S. 396 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Veteran's service records and VA medical treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2) (2013). VA examinations and opinions were provided in July 2006, January 2007, and in February 2012. The reports included a review of the pertinent medical histories. In combination, the examination reports provide comprehensive and adequate evaluations of the Veteran's claimed disorders. The Veteran has not argued, and the record does not reflect, that these examinations and opinions are inadequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.159(c)(4). There is no indication in the record that any additional evidence relevant to the issues decided is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009). Applicable Law In general, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304. Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). For all claims which were filed after October 31, 1990, such as this one, direct service connection may be granted only when a disability was incurred or aggravated in the line of duty, and it was not the result of the Veteran's own willful misconduct or the result of the Veteran's abuse of alcohol or drugs. 38 U.S.C.A. § 105; 38 C.F.R. § 3.301(a). VA regulations define willful misconduct as an act involving conscious wrongdoing or known prohibited action. 38 C.F.R. § 3.1(n). Further, willful misconduct involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of probable consequences. A mere technical violation of police regulations or ordinances will not per se constitute willful misconduct. Id. The simple drinking of alcoholic beverage is not of itself willful misconduct. The deliberate drinking of a known poisonous substance or under conditions which would raise a presumption to that effect will be considered willful misconduct. If, in the drinking of a beverage to enjoy its intoxicating effects, intoxication results proximately and immediately in disability or death, the disability or death will be considered the result of the person's willful misconduct. 38 C.F.R. § 3.301(c)(2). Organic diseases and disabilities which are a secondary result of the chronic use of alcohol as a beverage, whether out of compulsion or otherwise, will not be considered of willful misconduct origin. Id. The isolated and infrequent use of drugs by itself will not be considered willful misconduct; however, the progressive and frequent use of drugs to the point of addiction will be considered willful misconduct. 38 C.F.R. § 3.301(c)(3). If drugs are used to enjoy or experience their effects, and the effects result proximately and immediately in disability or death, such disability or death will be considered the result of the person's willful misconduct. Id. There can be service connection for compensation purposes for an alcohol abuse disability acquired as secondary to, or as a symptom of, a service-connected disability. However, a veteran can only prevail if able to "adequately establish that their alcohol or drug abuse disability is secondary to or is caused by their primary service-connected disorder." Allen v. Principi, 237 F.3d 1368, 1381 (Fed. Cir. 2001). 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 the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. History provided by the Veteran of the preservice existence of conditions recorded at the time of the entrance examination does not, in itself, constitute a notation of a preexisting condition. 38 C.F.R. §§ 3.304(b)(1); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995) Where a preexisting disease or injury is noted on the entrance examination, section 1153 of the statute provides that "[a] preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease." 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). For veterans who served during a period of war or after December 31, 1946, clear and unmistakable evidence is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service, and clear and unmistakable evidence includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. 38 C.F.R. § 3.306(b). Temporary or intermittent flare-ups of symptoms of a preexisting condition, alone, do not constitute sufficient evidence for a non-combat veteran to show increased disability for the purposes of determinations of service connection based on aggravation under section 1153 unless the underlying condition worsened. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306(b). The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, will not be considered service connected unless the disease or injury is otherwise aggravated by service. 38 C.F.R. § 3.306(b)(1). Service connection may be granted if a disability is proximately due to or the result of a service-connected disability or if aggravation of a nonservice-connected disorder is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a) and as revised by 71 Fed. Reg. 52744-52747 (final rule revising § 3.310 to conform to the Court's holding in Allen v. Brown, 7 Vet. App. 439 (1995) (en banc)). If a Veteran served 90 days or more, and certain disorders including psychoses or organic diseases of the nervous system becomes manifest to a degree of 10 percent or more within one year from date of termination of such service, then such diseases shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Personality disorders are not diseases or injuries under VA regulations and therefore are not disabilities for which service connection can be granted. 38 C.F.R. § 3.303(c). Nevertheless, service connection may be granted if the evidence shows that an acquired psychiatric disorder was incurred or aggravated in service and superimposed upon the preexisting personality disorder. 38 C.F.R. §§ 4.9; 4.125(a), 4.127 (2010); Carpenter v. Brown, 8 Vet. App, 240 (1995); Beno v. Principi, 3 Vet. App. 439 (1992). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Entitlement to service connection on the basis of a continuity of symptomatology after discharge under 38 C.F.R. § 3.303(b) is only available for the specific chronic diseases listed in 38 C.F.R. § 3.309(a), which includes psychoses and organic disease of the nervous system. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Disorders diagnosed after discharge may still be service connected if all of the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). A significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can be competent and sufficient evidence of a diagnosis or used to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Evidence The report of the Veteran's February 1978 examination at induction shows no indication of any preexisting acquired psychiatric disorder or chemical dependency, to include any illegal drugs or alcohol dependency. It also shows no indication of any hepatitis disorder to include hepatitis A, B, or C. The record during service shows that the Veteran was admitted to the psychiatric unit of the U.S. Public Health Service Hospital in Staten Island, New York in early November 1979 for observation of visual hallucinations and for signs of alcohol withdrawal. On admission he reported a history of drinking alcohol since age nine, and drinking heavily since age sixteen. He admitted to smoking marijuana and on rare occasions, has taken "uppers." He reported that he had had five prior treatments for alcoholism in the past. He reported occasionally experiencing visual hallucinations. The provider determined that the Veteran's past history included no significant illnesses except for the alcohol abuse. During that hospitalization the Veteran underwent psychiatric and detoxification counseling. Pertinent diagnoses were (1) self-admitted ETOH abuse; (2) visual and auditory hallucinations-possibly secondary to LSD ingestion; and (3) Australian Antigen (positive). The Veteran was discharged twelve days later in November 1979 via medevac transfer to Walter Reed Army Medical Center. Walter Reed medical records in November 1979 show that on admission, the Veteran had two tattoos, which were on his left and right forearm. The Veteran reported having been admitted several times in the past five years for alcoholism, and that he had been seen by a psychiatrist, without giving details. He reported having auditory, visual, and tactile hallucinations, and spending his leisure time "getting drunk". He denied suicidal/homicidal ideations, and no delusions were noted. He was admitted to a specified ward as a hepatitis precaution. A physical examination during hospitalization concluded with impressions of (1) drug-induced psychoses, (2) alcoholic hallucinosis, and (3) question of anticholinergic psychosis. During the hospitalization at Walter Reed, a narrative summary report contains pertinent diagnoses of: (1) alcohol addiction, manifested by excessive alcohol abuse over a ten year period with at least three documented alcoholic rehabilitation failures; stress, moderate, alcohol withdrawal, disciplinary action in Germany, and death of father; predisposition, strong family history of alcoholism; impairment for further military duty, none; impairment for social and industrial adaptability, none. (2) drug dependence, other hypnotics and sedatives or tranquillizers, manifested by psychological dependence on Thorazine, increased irritability agitation and subjective feeling of need of medication; stress, moderate, withdrawal from alcoholism; predisposition, recurrent history of drug and alcohol addiction; impairment for further military duty, none; impairment for social and industrial adaptability, none. (3) serum hepatitis, suspected, not proven manifested by one positive HAA, titer. In December 1979 the Veteran was transferred to the Navy Alcohol Rehabilitation Center, in Norfolk Virginia for further treatment of alcohol abuse. In January 1980 he was discharged from that center and assigned to Fort Eustis. The report of a July 1980 examination for purposes of separation under Chapter 9 shows that the Veteran reported having frequent trouble sleeping. He reported he did not have depression or excessive worry, loss of memory, nervous trouble, or periods of unconsciousness. He also reported that he had been treated for alcohol abuse, and that he had had a head injury before service. On examination, the evaluation was normal for all parts and systems including psychiatric and neurologic. Other than the reference to Chapter 9 as the purpose of the examination, the July 1980 medical examination report contains no indication of problems referable to the claimed hepatitis, psychiatric disorder, or chemical dependency. A July 1980 memorandum to the Veteran's commander from a clinical director of the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) shows that the Veteran was involved in an alcohol-related assault offense that month. The clinical director notified the commander of the determination that the Veteran was a rehabilitation failure, and recommended that the commander take action to separate the Veteran from service due to his addiction to alcohol. Service treatment records in September 1980 show that the Veteran reported he had been treated for delirium tremens from chronic alcoholism since age eleven. The Veteran reported that he drank a quart of whiskey per day and occasionally beer. He reported he had gone through delirium tremens, with no known liver problems. He reported a history of convulsions and that he had last drank alcohol 40 minutes before the treatment visit. He was admitted for transfer to a VA medical facility in Brooklyn. His symptoms included mild tremors but no hallucination. The report contains an assessment of (1) alcohol addiction/dependence, and (2) probable alcoholic hepatitis. The associated service treatment records indicate the Veteran was treated over four days in early September 1980, and then transferred to a VA hospital in Brooklyn, New York where he was treated for diagnoses of alcohol addiction/dependence, and probable alcoholic hepatitis. In an April 2006 statement a VA Nurse Practitioner noted that the Veteran was being treated for chronic hepatitis C. She opined that the Veteran was likely infected with hepatitis C in the late 1970s, based on risk factor exposure. She noted that the Veteran reported a history of acute hepatitis B in 1979, and that he has the markers in his blood suggestive of past exposure to hepatitis B. She noted that there was no test to confirm a diagnosis of hepatitis C until about 1992. She stated that the Veteran's episode of acute hepatitis in 1979 may have been hepatitis B or C. The report of a July 2006 VA examination for hepatitis A, B, and C, shows that the Veteran reported that he was diagnosed with hepatitis B in 1979 while treated at the Walter Reed Medical center. On review of the claims file, however, the examiner found that the Veteran was diagnosed with hepatitis C in December 2005. The Veteran reported complaints of periodic diffuse abdominal pain, and constipation; but he denied having nausea, vomiting, or diarrhea. The examiner noted a past medical history including alcohol abuse and substance abuse. The July 2006 VA examination report contains a conclusion, which includes hepatitis C, status post incomplete experimental treatment with interferon in 2005. The Veteran reported risk factors for infection with hepatitis C, including that he used needles to inject recreational drugs, snorted drugs like heroin or cocaine through the nose, and he had multiple tattoos. He reported a history of excessive alcohol use in the past. He denied blood transfusion before 1992, and he was not exposed to other people's blood through skin or mucous membranes. He did not have a history of hemodialysis, or multiple sexual partners, or sexually transmitted disease. He did not have unexplained liver disease. The examiner concluded that he was unable to select only one factor that could be determined as the course of infection with hepatitis C virus. The examiner noted that current examination did not show any residuals related to the questionable diagnosis of hepatitis A and B in the past. The examiner opined that the medical documentation and information provided by the Veteran was not sufficient to establish the connection of the current hepatitis C with the Veteran's service. The report of a July 2006 VA examination for mental disorders shows that the Veteran reported a family history that his brother and sister both had bipolar disorder. The Veteran reported that he had had trouble in school due to dyslexia. Noted significant pre-military history included one sexual abuse incident. The Veteran reported that during service he started drinking a lot and while stationed in Germany he started using heroin. He reported that he was discharged from service as a result of not being able to successfully rehabilitate from alcohol or drug use, and he had gone AWOL (away without leave) for about 30 days. The Veteran reported that he was hospitalized for a week in April 2006 for a suicide attempt. He reported that prior to that, he had not sought mental health treatment since service; and that he had been in numerous treatment facilities for drug use. The Veteran reported feeling depressed, sleep problems including sleep apnea, and having attention deficit hyperactive disorder. After examination the report concluded with an Axis I diagnosis of depressive disorder not otherwise specified; polysubstance dependency in full early remission; and an Axis II diagnosis of personality disorder not otherwise specified provisional. The report included the examiner's comments that over the years the Veteran has had numerous drug treatments and the Veteran believes that his depression was a cause for much of the drug use. The examiner commented that it is possible that the Veteran has been self medicating with alcohol over the years and that he has been experiencing a depression that started in service and continued since service. The examiner commented, however, that obtaining reported treatment records from treatment at Walter Reed in service would assist in determining if his depression was first shown in service and therefore was service connected. However, those records were not on file. The report of a January 2007 VA examination for mental disorders indicated that medical records in November 1979 showed that the Veteran was hospitalized in service on a psychiatric unit, with complaints primarily of hallucinations that were diagnosed as secondary to LSD use. During that hospitalization he was also diagnosed with alcohol and drug dependency, and he was referred for alcohol and drug rehabilitation. The present examiner noted that the records of that hospital treatment showed that the Veteran was not treated for depression. The examiner opined that the Veteran was not treated for depression in service, that his primary difficulties in service appear to be drug and alcohol dependency and hallucinations secondary to LSD use, and that it does not appear that his current depression is related to inservice hospitalization. The report of a February 2012 VA examination for mental disorders shows that the examiner reviewed the claims file and examined the Veteran. The examiner reviewed and discussed the Veteran's pre-service, service, and post-service medial history, including treatment received during service from the Staten Island Public Health Services Hospital and Walter Reed Army Medical Center in November 1979. The Veteran reported that he began drinking prior to service at age nine, and continued to use alcohol until he joined the Army; and also while in service in the Army. He reported that he started using drugs when he was 11 (marijuana and hash). He started using heroin at 13, and he was "hooked" for about one and one-half years, and then he tapered off of heroin. He started using drugs again in service while stationed in Germany, and he stopped when he returned to the United States, and moved on to using Quaaludes and alcohol. His first treatment after service was in 1983, and then he was clean/sober for six years. He started using again for 18 months, and then went to another treatment. Then he was clean/sober for five and one-half years. He started using again in about 1992 or 1993, when he was taking crack and alcohol. He went to treatment again after 18 months, after which he was clean/sober for two years, and then relapsed with alcohol/cocaine for a few years. He went again to treatment, after which he was clean/sober for one and one-half years, after which he began again on alcohol/cocaine for several months. He was most recently in an alcohol treatment in 2008. His last relapse was in June 2009. He was currently attending Alcoholics Anonymous. The Veteran reported that he was knocked out once as a youth in a mini-bike accident, causing him to be unconscious for one or two minutes. Following the clinical examination, the examiner provided diagnoses of (1) schizoaffective disorder; (2) polysubstance dependence, chronic and severe, in remission; and (3) learning disorder, not otherwise specified. The examiner also provided the following comments and opinions. The Veteran had the noted schizoaffective disorder symptoms since he was a teenager, and he was hospitalized after a "bad" LSD trip, and he took Thorazine for two years as a youth. He was hospitalized during service when he presented with psychotic symptoms that his treatment providers deemed to be due to residual effects from use of drugs and hallucinogens. The Veteran was not diagnosed with a psychotic disorder while in service, but by then had a long history of severe chemical dependency. After service, the abuse of chemicals continued and likely contributed to the development of more persistent psychotic symptoms. The Veteran continues to have psychotic symptoms of a residual nature, even though he has not been using chemicals for the past two years. The Veteran's schizoaffective disorder includes his mood symptoms, which have been severe over the years. The examiner noted that before entering service the Veteran was severely chemically dependent as a juvenile and was in three treatment programs, none of which were successful. This included a one-month hospitalization for a "bad" LSD trip. After service the Veteran continued to abuse chemicals in a chronic and severe fashion, leading to several treatment programs - 18 by one count. Currently, the Veteran has been clean and sober for two years. The examiner noted the following material history. The Veteran was treated for "hyperactivity" as a youth, and placed in special education programs. These problems were addressed to some degree in a neuropsychological evaluation in 2009, which diagnosed cognitive disorder, not otherwise specified. That evaluation noted that the Veteran's executive deficits were likely due to schizophrenic and mood symptoms "competing" for mental resources. The examiner opined that it was not possible to differentiate what symptoms are attributable to each diagnosis. Based on the foregoing, the examiner opined that it is less likely as not that the Veteran's mental health or chemical dependency or learning disabilities were related to his active duty service. In this regard the examiner noted that the Veteran had a very well documented history of mental health, chemical dependency, and learning/behavioral problems long before entering service. Further, there was nothing known that occurred during service that provides a cause for the Veteran's mental health difficulties. All of his psychotic symptoms seem to have had onset prior to service. Given the pattern of mental illness and chemical dependency he followed after service, it is at least as likely as not that the course of his illnesses and disabilities would have been no different had he not been in the military. The report of a February 2012 VA examination for hepatitis, cirrhosis and other liver conditions, shows that after a clinical examination was performed, the examiner provided a diagnosis of hepatitis C. On review of the claims file, the examiner noted the following material history. The Veteran reported he began heavy use of alcohol in his youth; he used marijuana, LSD, and amphetamines prior to service. During service he began using intravenous and intranasal drugs, and received a tattoo. While hospitalized at Walter Reed he was diagnosed with hepatitis. He had no ongoing symptoms. The examiner noted that at the separation examination in July 1980, there was no mention of hepatitis. Inpatient treatment notes at Walter Reed in November 1979 showed that serum hepatitis was suspected, as manifested by one positive HAA titer, but not proven. The Veteran had a history of heavy alcohol ingestion since age 10, and he was in and out of detoxification units during his teenage years. He smoked marijuana sparingly, and had five hits of LSD at age 14. The Veteran admitted to some amphetamine usage. He denied use of heroin or PCP. The Veteran was sodomized by a stranger at age 12. The examiner also noted that the Veteran's hepatitis C risk factors included street drugs with needles in 1978, intranasal drug use in 1978, and the two tattoos in 1978. In 1978, the Veteran had viral load of more than 3.5 million hepatitis C genotype 3A. In March 2006 he was started on treatment to clear the hepatitis C virus, and was found to have moderate fibrosis by liver biopsy with genotype 3A. The Veteran denied post-service ongoing intravenous drug use. In the last 12 months he remained in sustained viral remission. He finished treatment in 2008. The report noted the following risk factors for the Veteran's hepatitis C: tattoo before service; intranasal cocaine use before, during and after service; intravenous drug use with shared needles during service; high risk sexual practices during and after service, as well as being a victim prior to service. The examiner noted that the hepatitis C was diagnosed after service, and that no testing was available for hepatitis C at the time of the Veteran's service. Following the clinical evaluation, including testing for hepatitis, the examiner determined that the Veteran does not have a present diagnosis of hepatitis A or B. The report contains a diagnosis of hepatitis C in sustained viral remission since April 2007 after antiviral therapy. The examiner opined that the hepatitis C is at least as likely as not incurred during service related to intravenous drug use which is willful misconduct. As rationale, the examiner noted that the Veteran used intravenous drugs repeatedly during service, and that intravenous drug use has a high risk of hepatitis C, with a risk probability of 79 percent even with one episode. The examiner further noted that there was no evidence of risk factors for hepatitis C that were not related to willful misconduct. The examiner further noted that other common behaviors carried risk factors that are very small or minimal compared to the risk from blood transfusions prior to 1987 and injectable drug use, citing published material regarding relative estimated average prevalence of hepatitis C virus in relation to other risk factors. Merits of the Claims Acquired Psychiatric Disorder The Veteran claims service connection for an acquired psychiatric disorder The inservice treatment records show diagnoses related to the Veteran's alcohol or drug use in service such as (1) drug-induced psychoses, (2) alcoholic hallucinosis, (3) question of anticholinergic psychosis, (4) alcohol addiction, and (5) drug dependence. The inservice treatment records (and the post-service VA examinations and opinions) link these diagnoses to the Veteran's alcohol or drug use in service as well as his preexisting alcohol and chemical dependence. As the conditions noted in service were found to be proximately due to alcohol or drug use in service, such willful misconduct would preclude entitlement to service connection for any lasting residual conditions associated with the inservice diagnoses. VA treatment records and VA examination reports since July 2006 show that the Veteran is presently diagnosed with various psychiatric disorders such as depressive disorder, not otherwise specified; schizoaffective disorder; polysubstance dependence, chronic and severe, in remission; learning disorder, not otherwise specified; and a personality disorder not otherwise specified, provisional. At the outset, the Board notes that payment of compensation for a disability that is a result of a Veteran's own alcohol or drug abuse is prohibited by law. 38 U.S.C.A. § 105(a) (West 2002); 38 C.F.R. §§3.1(m), 3.301 (d) (2013). As such, entitlement to service connection for any current psychiatric disorder, specifically defined as a substance abuse disorder or polysubstance dependence, is not for consideration. There is no competent evidence showing that any other current psychiatric disorder is related to military service. The examiner at the January 2007 VA examination diagnosed depression and opined that the Veteran was not treated for depression in service and that the Veteran's depression was not related to inservice hospitalization. The examiner at the February 2012 VA examination diagnosed schizoaffective disorder and learning disorder, not otherwise specified. He opined that it is less likely as not (not likely) that the Veteran's present mental health or learning disabilities were related to service. The VA examiners' opinions are probative on the question of the etiology of the Veteran's current acquired psychiatric disorder and there is no competent evidence to the contrary. The issue of the etiology of an acquired psychiatric disorder is beyond the competency of the Veteran as a lay person because it is a complex question that requires medical knowledge and training. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Psychiatric disorders are also not the type of conditions for which lay observation has been found to be competent. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). And the Veteran is not shown to be qualified through education, training or experience to offer medical opinions. See 38 C.F.R. § 3.159(a)(1) (2013). To the extent that inservice substance abuse combined with continued post- service substance abuse, contributed to the development of a current acquired psychiatric disorder, such alcohol and drug abuse in service is considered willful misconduct, precluding entitlement to service connection for any resultant psychiatric disorder proximately resulting from the alcohol or chemical use. 38 C.F.R. § 3.301(c). There is no diagnosis or other definitive medical evidence of a personality disorder during service; and arguendo, there is no such medical evidence that an acquired chronic psychiatric disorder was incurred or aggravated in service, and superimposed upon a preexisting, undiagnosed personality disorder. There is also no evidence that any chronic disorder of a psychosis or organic disease of the nervous system became manifest within one year from date of termination of service. The first competent medical evidence of record showing a diagnosis of any of the current acquired psychiatric disorders was in 2006, decades after separation from service. Therefore, presumptive service connection is not warranted for any psychosis. 38 C.F.R. § 3.307, 3.309. The preponderance of the evidence is against the grant of service connection for an acquired psychiatric disorder; there is no doubt to be resolved; and service connection is not warranted. Chemical Dependency, Including Illegal Drugs or Alcohol Dependency The Veteran claims service connection for chemical dependency including illegal drugs or alcohol dependency, to include as due to an acquired psychiatric disorder. Given the Veteran's medical history discussed above, it should be noted that chemical dependency, also known as substance dependency, is considered a psychiatric disorder. Substance dependency and substance abuse comprise one class of substance-related disorders; the other class consists of substance-induced disorders, which includes substance intoxication, substance withdrawal, substance-induced delirium, and substance-induced psychiatric disorders such as substance-induced psychotic disorder, mood disorder, or anxiety disorder. See Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM-IV) 103 (1994). The medical evidence on file and dated during service clearly shows that the Veteran had a preexisting history of alcohol and drug dependency or abuse, and that the Veteran's alcohol dependence and drug dependence continued to manifest during service resulting in multiple treatments including hospitalizations and finally discharge from service. During treatment at Walter Reed Army Medical Center in November and December 1979, diagnoses included (1) alcohol addiction manifested by excessive alcohol abuse over a ten year period; and (2) drug dependence, manifested by psychological dependence on Thorazine, increased irritability, agitation, and subjective feeling of need of medication,...recurrent history of drug and alcohol addiction. To the extent that the use of alcohol or chemicals may have increased upon entering and during service, such progressive and frequent use of alcohol and drugs in service to the point of addiction is considered willful misconduct. Also, to the extent the effects of alcohol or chemical use resulted proximately and immediately in any disability, such disability will be considered the result of the Veteran's willful misconduct. Such willful misconduct precludes entitlement to service connection for any resultant conditions proximately resulting from the alcohol or chemical use. 38 C.F.R. § 3.301(c). The evidence does not show that any disease or injury in service aggravated the Veteran's preexisting alcohol or chemical dependence. The examiner at the February 2012 VA examination specifically opined that given the pattern of the Veteran's chemical dependency he followed after service, it is at least as likely as not that the course of his illnesses and disabilities would have been no different had he not been in the military. This opinion is probative as it is consistent with the medical evidence on file. The issue of the etiology of the Veteran's chemical dependency, including illegal drugs or alcohol dependency, is beyond the competency of the Veteran as a lay person because it is a complex medical matter that requires medical knowledge and training. As a lay person, the Veteran is not competent to establish a medical diagnosis or show a medical etiology merely by his own assertions as such matters require medical expertise, and the Veteran is not shown to be qualified through education, training or experience to offer medical diagnoses, statements or opinions. See 38 C.F.R. § 3.159(a)(1) (2013). Finally, there is no clear medical evidence establishing that the Veteran's alcohol or drug abuse disability, that is his chemical dependency, is indeed caused by a service-connected disability and as already noted the Veteran's substance abuse is due to willful wrongdoing. See VAOPGCPREC 7-99 (June 9, 1999); see also Allen v. Principi, 237 F.3d 1368, 1376 (Fed. Cir. 2001). The preponderance of the evidence is against the grant of service connection for chemical dependency, including illegal drugs or alcohol dependency; there is no doubt to be resolved; and service connection for chemical dependency, including illegal drugs or alcohol dependency, is not warranted. Hepatitis A or B A necessary element to establish entitlement to service connection is the existence of a current disability. See Degmetich v. Brown, 104 F.3d 1328 (1997) (holding that section 1110 of the statute requires the existence of a present disability for VA compensation purposes); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In the absence of proof of such present disability, there can be no valid claim for service connection. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). At no time during the pendency of this claim has there been a diagnosis of any hepatitis A or B by a medical professional. The Veteran is not shown to be competent to diagnose hepatitis A or B. Although he is competent to attest as to symptoms he may have observed, hepatitis A or B is not a simple medical condition susceptible to lay diagnosis and, clearly, his reported symptoms have not later supported a diagnosis by any medical professional. Nor is hepatitis A or B a condition for which lay observation has been found to be competent to establish the presence of. Charles v. Principi, 16 Vet. App. 370 (2002). As a lay person, the Veteran is not competent to establish a medical diagnosis of hepatitis A or B merely by his own assertions as such matters require medical expertise, and the Veteran is not shown to be qualified through education, training or experience to offer medical diagnoses, statements or opinions. See Davidson v. Shinseki, 581 F.3d (Fed. Cir. 2009); Jandreau, 492 F.3d at 1376-77; 38 C.F.R. § 3.159(a)(1) (2013). As there is no diagnosis of hepatitis A or B, it is unnecessary to consider whether the claim meets criteria of any other elements of service connection regarding an in-service incurrence or aggravation of a disease or injury; or a causal relationship between the present disability and any disease or injury incurred or aggravated during service, the so-called "nexus" requirement including criteria of 38 C.F.R. § 3.304(f). Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004); see also 38 C.F.R. § 3.304(f). The preponderance of the evidence is against the claim for service connection for hepatitis A or B; there is no doubt to be resolved; and service connection is not warranted. 38 U.S.C.A. § 5107(b). Hepatitis C Risk factors for hepatitis C are considered to include intravenous 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 (98-110) November 30, 1998. VA considers that a veteran may have been exposed to the hepatitis C virus (HCV) during the course of duties as a military corpsman, a medical worker, or as a consequence of being a combat Veteran. VBA Fast Letter (04-13) June 29, 2004. There was no test available to detect the presence of HCV until 1989. See VBA Fast Letter 98-110. Thus there was no test available to detect the presence of hepatitis C at the time of the Veteran's service and the Veteran's service treatment records, to include his July 1980 separation examination, contain no findings of hepatitis C during service. The first competent medical evidence of record showing a diagnosis of hepatitis C is in 2005, decades after his separation from service. The Veteran contends that he was diagnosed with hepatitis B in service and that this was related to his currently diagnosed hepatitis C. As reflected in recent VA examination reports, the Veteran has acknowledged significant alcohol and drug use during and since service. During the February 2012 VA examination for hepatitis, he reported that he had intravenous and intranasal drug use in service and receiving a tattoo during service. There is also contemporaneous treatment record evidence in service showing a history of heavy alcohol ingestion since age 10. He also reported receiving a tattoo before service; intranasal cocaine use before, during and after service; intravenous drug use with shared needles during service; and high risk sexual practices during and after service. The Veteran is competent to state that he used intravenous drugs in service, as he is attesting to matters capable of lay observation and of which he has direct knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The examiner at the February 2012 VA examination opined that it was at least as likely as not that the Veteran's hepatitis C was incurred during service related to intravenous drug use. The examiner noted that the Veteran used intravenous drugs repeatedly during service, and that intravenous drug use has a high risk of hepatitis C, with a risk probability of 70 percent with even just one episode. The examiner noted that there was no evidence of risk factors that were not related to willful misconduct, and that other common behaviors carried risk factors that are very small or minimal compared to injectable drug use. The opinion from the February 2012 VA examination is probative on the question of etiology of the hepatitis C and there is no competent evidence to the contrary. The Veteran's lay contention is not competent evidence of a causal nexus between Hepatitis C and military service because such a question is a complex medical issue. Hepatitis C is not a condition under case law that has been found to be capable of lay observation. It also is not a simple medical condition because the disability cannot be identified or diagnosed by the Veteran as a lay person based on mere personal observation, that is, the disability cannot be perceived through the senses, for example, by visual observation, and therefore such a disability is not a simple medical condition. As hepatitis C is not a condition that can be identified based on personal observation, either by case law or as a simple medical condition, any inference based on what is not personally observable cannot be competent lay evidence. And no factual foundation has been established to show that the Veteran is otherwise qualified through specialized education, training, or experience to offer an opinion on the causal relationship or nexus between the current hepatitis C and service. Intravenous drug use is shown as an in-service risk factor for the Veteran's hepatitis C, and has been identified as the most likely etiological risk factor for his hepatitis C. The Veteran's drug abuse constitutes willful misconduct in this case and prohibits payment of VA benefits for disabilities resulting from such willful misconduct. The preponderance of the evidence is against the claim for service connection for hepatitis C; there is no doubt to be resolved; and service connection is not warranted. 38 U.S.C.A. § 5107(b). ORDER Service connection for an acquired psychiatric disorder is denied. Service connection for chemical dependency, including illegal drugs or alcohol dependency, to include as due to an acquired psychiatric disorder is denied. Service connection for hepatitis A or B is denied. Service connection for hepatitis C is denied. ____________________________________________ D. JOHNSON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs