Citation Nr: 1751319 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 13-27 940 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for lymphoma due to herbicide exposure. 2. Entitlement to service connection for hepatitis C, to include as secondary to drug dependence associated with service-connected major depressive disorder with anxious distress. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M.D., Associate Counsel INTRODUCTION The Veteran served on active duty from June 1970 to July 1973. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In January 2012, the RO denied service connection for alcohol and drug abuse. In April 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. FINDINGS OF FACT 1. The Veteran is not shown, and may not be presumed, to have been exposed to herbicides in service; the Veteran has not asserted that lymphoma is otherwise attributable to service. 2. Hepatitis C was not shown to have had onset during service nor is it attributable to his service connected major depressive disorder with anxious distress. CONCLUSIONS OF LAW 1. The criteria for service connection for lymphoma have not been met. 38 U.S.C.. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309, 3.310 (2017). 2. The criteria for service connection for hepatitis C have not been met. 38 U.S.C.. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.301, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist VA satisfied the duties to notify and assist in this appeal and neither the Veteran nor his representative have asserted any error as to these duties. See Scott v. McDonald, 789 F. 3d 1375 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). In June 2010 and November 2011, the Veteran was provided VA examinations regarding his claim of service connection for hepatitis C; as discussed in greater detail below, the Board finds these examinations to be adequate upon which to adjudicate the merits of this appeal. As to the claim for lymphoma, as discussed below, the Veteran asserts that he was exposed to an herbicide agent during service. This is the basis of his claim in appellate status. As discussed below, he does not provide another basis for service connection. Based on a finding that the Veteran was not exposed to an herbicide agent during service, the Board finds that there is no duty to provide an examination for this claim. See 38 C.F.R. § 3.159. As previously noted, the Veteran was provided an opportunity to set forth his contentions before a Veterans Law Judges in April 2017. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that a "hearing officer" who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the Veteran has not raised any deficiency with the hearing and the Board does not otherwise find any prejudicial error. See Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). II. Hepatitis C The Veteran seeks service connection for his diagnosed hepatitis C, which he attributes to various incidents during his military service. Initially, the Veteran reported that he participated in high risk sexual contact while serving in Okinawa and that his hepatitis C is related to this activity. Most recently, the Veteran and his representative assert that the Veteran's hepatitis C developed as a result of abusing drugs in an attempt to self-medicate for the Veteran's mental health problems. In order to establish service connection, the evidence must generally show: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). With respect to claims filed after October 31, 1990, an injury or disease incurred during active service will not be deemed to have been incurred in the line of duty if the injury or disease was a result of the person's own willful misconduct, including abuse of alcohol or drugs. 38 U.S.C. § 105 (West 2014); 38 C.F.R. §§ 3.1(m), 3.301(c)(3)(d) (2016). The isolated and infrequent use of drugs by itself will not be considered willful misconduct; however, the progressive and frequent use of drugs or alcohol to the point of addiction will be considered willful misconduct. Where 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. 38 C.F.R. § 3.301(c)(3). However, alcohol and drug-related disorders are recognized as disorders within the medical community. See American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders (4th. Ed. 1994) (DSM-IV). Thus, while service connection for alcohol and drug abuse disabilities on a primary basis is barred, an alcohol and/or drug abuse disability arising as a direct result of a psychiatric condition may be service connected. Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). In such cases, a Veteran can only recover if he or she is able to adequately establish that their alcohol or drug abuse disability is secondary to, or is caused by, their primary service-connected disorder. Allen, 237 F.3d at 1381. A review of the Veteran's service treatment records shows an extensive treatment history for sexually transmitted diseases while serving in Okinawa. The Veteran was also seen for concerns of possible hepatitis. However, after undergoing medical observation, the Veteran was determined to not have hepatitis. The Veteran was afforded a VA examination in June 2010. The examiner opined that it is less likely than not that the Veteran was infected with hepatitis C during his military service. The examiner supported his opinion by stating that while the Veteran did have confirmed documented risk factor of unprotected sex and a hospital admission with abdominal pain, it was also documented that hepatitis was specifically not found and that the Veteran had no liver condition noted upon separation. The examiner also stated that the Veteran was only in the military for 3 years but it is clear that he had at least 20 years of frequent high risk behaviors including documented IV heroin abuse and sharing needles. The Veteran was afforded another VA examination in November 2011. The Veteran was diagnosed with hepatitis C. The examiner noted that the Veteran used heroin and IV cocaine and had unprotected sexual relations that resulted in gonorrhea while stationed in Okinawa. She stated that the Veteran's claims file indicated that the Veteran used IV drugs for 20 years, from 1972-1992. The examiner noted that intravenous drug use or intranasal cocaine use and high risk sexual activity are risk factors for hepatitis C. The examiner opined that it is less likely than not that the Veteran was infected with hepatitis C during his active military service. The examiner supported her opinion by referring to the Veteran's service treatment records that showed that the Veteran was evaluated in August 1971 for an illness that was not diagnosed as hepatitis. The examiner noted that for 20 years after separation from service, the Veteran used IV drugs and shared needles and then was subsequently diagnosed with hepatitis C in 1996. The examiner also opined that it is not possible to determine if the Veteran contracted hepatitis C from the time during active military service when he was using IV drugs, sharing needles and engaging in risky sexual behavior or whether he contracted hepatitis C sometime during the 20 years after separation when he was also using IV drugs and sharing needles. The examiner expressed that the fact that the Veteran was diagnosed years after separation leads her to opine that the Veteran's hepatitis C was contracted years after his separation. However she is unable to state her opinion with exact certainty or without resorting to mere speculation. The Board finds that the examiner provided sufficient reasons for her determination that within the larger opinion, part of the determination required resort to speculation. The Veteran was also afforded a mental disorder VA examination in November 2011. The Veteran was diagnosed with anxiety disorder. The examiner noted that the Veteran's medical records indicate that the Veteran was seen at Hines VAMC in June 1992, with his first treatment occurring in 1988, for polysubstance abuse/dependence. The examiner stated that as of 1992, it was reported that the Veteran had been abusing cocaine and heroin for about 20 years. The examiner expressed that there is no mention in the Veteran's medical records that the Veteran was abusing drugs in response to his currently diagnosed anxiety disorder. The examiner also stated the following: "There is evidence of past alcohol and drug abuse. However, the Veteran has been clean and sober for the past 8-9 years, and thus, no current mental disorder diagnosis such as alcohol abuse or drug abuse is warranted. His past alcohol and drug abuse are in full remission. Furthermore, there is no medical evidence that the Veteran was abusing drugs and alcohol in response to his service connected anxiety disorder. Even the Veteran reports that his issues with drugs and alcohol over the years was due to his developing a "drug culture" and "lifestyle" that included abusing drugs and alcohol. The Veteran himself did not attribute his drug and alcohol use to his anxiety disorder. Thus, the service connected anxiety disorder neither caused or permanently aggravated the claimed alcohol and drug abuse." The examiner concluded that it more likely than not that the current severity of the claimed drug and alcohol abuse is solely due to the natural progress of the condition or other factors unrelated to the service connected anxiety disorder. After reviewing the evidence of record the Board finds that the overwhelming preponderance of the medical evidence indicates that the Veteran's hepatitis C is not related to his military service nor is it secondary to his anxiety disorder. The Board acknowledges the Veteran's statements regarding participating in high risk sexual contact while serving in Okinawa as well as abusing drugs in an attempt to self-medicate for the Veteran's mental health problems, both of which events he believes led to the development of hepatitis C. A veteran is generally competent to report on matters observed or within his personal knowledge. See Layno, 6 Vet. App. 465 at 470. The Veteran, however, as a layperson not shown to possess appropriate medical training and expertise, is not competent to render an opinion on whether any symptoms he experienced in service were early manifestations of hepatitis C or on the etiology of his current hepatitis C. Such issues require medical expertise to determine. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). As such, the medical findings and opinions of the June 2010 and November 2011 VA examiners warrant greater probative weight than the Veteran and his representative's lay contentions. As the June 2010 VA opinion and the November 2011 VA opinion were cumulatively based on a review of the claims file and supported by adequate rationale, they are afforded significant probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). While the November 2011 examiner also noted that it was not possible to determine if the Veteran contracted hepatitis C from the time during active military service when he was using IV drugs, sharing needles and engaging in risky sexual behavior or whether he contracted hepatitis C sometime during the 20 years after separation when he was also using IV drugs and sharing needles without resorting to mere speculation, such a finding does not negate the unequivocal overall conclusion offered by the examiner that hepatitis C was less likely related to service. As noted, the Board finds that the examiner provided sufficient rationale for finding she must resort to speculation for this discreet opinion prior to providing a more general non-speculative opinion. In sum, the weight of the competent and probative evidence is against finding that the Veteran's hepatitis C was incurred in or is otherwise related to his military service nor is it caused or aggravated by his service connected anxiety disorder. Therefore, the claim of entitlement to service connection for hepatitis C is denied. In making its determination, the Board considered the applicability of the benefit of the doubt rule. 38 U.S.C. § 5107(b). As the preponderance of the evidence is against the claim, this rule does not apply. III. Lymphoma The Veteran does not allege that his lymphoma had it onset in service or for many years afterwards. In his December 2009 claim application, the Veteran stated that his lymphoma is due to Agent Orange exposure and that he was diagnosed in 2006. The medical records also do not show the condition in service, and post-service treatment records indicate a diagnosis of lymphoma many years after service. Accordingly, service connection on a direct basis is not for application. The Veteran contends instead that while stationed in Japan, the Veteran was exposed to Agent Orange while working with contaminated radios coming from Vietnam. If a veteran was exposed to an herbicide agent during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, certain diseases, including non-Hodgkin's lymphoma, shall be service-connected, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). As a radio repairman, the Veteran stated in a letter dated April 2017, that his function was to "breakdown, test, and repair field and other radio equipment that had come from Vietnam." He also expressed that it was common to repair equipment that were very filthy, covered with blood and weeds, and would have bullet holes. A review of the Veteran's military personnel records reveal that the Veteran was in fact stationed in Japan. The Veteran has not claimed, nor does the evidence show, that the Veteran was stationed in Vietnam. The Veteran's military personnel records also confirm that the Veteran was a radio repairman during the period of May 1971 to October 1972. Unfortunately, the evidence fails to support a finding that tactical herbicides as contemplated by the regulations and presumptions were being used in Okinawa at a time when the Veteran was present. Generally speaking an herbicide is a defoliant, a killer of plants. For purposes of showing entitlement to VA compensation benefits, the evidence must show that a very specific kind of herbicide was involved. "[T]he term herbicide agent means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram." 38 C.F.R. § 3.307(a)(6)(i). While the Veteran has established adequately that he was stationed in Japan and that he was a radio repairman, the evidence does not show that the radios were contaminated with herbicides and that even if the radios were contaminated with herbicides, the evidence does not show that the radios were contaminated with the kind of herbicide which triggers the presumption of service connection. In support of his contention, the Veteran submitted articles which suggest that Agent Orange was used in Okinawa. The VA Adjudication Procedure Manual, Part IV, Subpart ii, Chapter 2, Section C.10.o, sets forth procedures for the verification of herbicides in areas outside Vietnam. The manual provides two locations where VA is to obtain information for non-Vietnam herbicide exposure: VA Compensation and Pension Service, and the U.S. Army and Joint Services Records Research Center (JSRRC). In a May 2009 memorandum, JSRRC stated that they had reviewed official military documents, ship histories, deck logs, and other sources of information, and found no evidence that Navy or Coast Guard ships transported tactical herbicides from the United States to Vietnam or that ships operating off the coast of Vietnam used, stored, tested, or transported tactical herbicides and therefore could not document or verify that the Veteran was exposed to tactical herbicides based on equipment that was used in Vietnam. The claim's file also contains a February 2017 letter from the Veteran's primary care physician. Dr. J.W. expressed that since B cell malignancy is on the list of presumptively Agent Orange related conditions and the Veteran reports he was exposed to Agent Orange while processing radios that have been in Vietnam at a time of extensive Agent Orange use, it seems as likely as not that in the Veteran's case, the two are linked. Although, the Veteran and Dr. J.W. sincerely believe that the Veteran was exposed to Agent Orange while repairing radios in Japan, the actual identity of the substance lies outside their area of knowledge and expertise. The testimony of the Veteran and the supporting statements of Dr. J.W. are not shown to be competent evidence of the spraying of Agent Orange/tactical herbicides in Okinawa during the Veteran's service nor are they shown to be competent evidence that Agent Orange contaminated the radios the Veteran repaired. They do not have the requisite specialized knowledge to state that herbicides under 38 C.F.R. § 3.307(a)(6) were used. Therefore, the Board finds that the opinion from the Dr. J.W. has not probative value as it is based on an incorrect factual premise. Again, here, this appeal, based on the Veteran's assertions, stems on whether the Veteran was exposed to an herbicide agent. The Board finds that he was not, and thus, service connection based on this contention is not warranted. Accordingly, no nexus based on herbicide exposure may be established. The preponderance of the evidence is against the claim, and there is no doubt to be resolved. Service connection for lymphoma due to Agent Orange exposure is not warranted. ORDER Entitlement to service connection for lymphoma due to Agent Orange exposure is denied. Entitlement to service connection for hepatitis C, to include as secondary to drug dependence associated with service-connected major depressive disorder with anxious distress is denied. ____________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs