Citation Nr: 18144266 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 15-22 685 DATE: October 24, 2018 ORDER Entitlement to service connection for Hepatitis C is denied. Entitlement to service connection for an acquired psychiatric disorder is granted. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran’s Hepatitis C was incurred during active duty Army service. 2. A VA examiner has attributed the Veteran’s adjustment disorder with disturbances of mood and conduct to his combat experiences and fear of hostile military activity during his service in the Republic of Vietnam.   CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for Hepatitis C have not been satisfied. 38 U.S.C. §§ 1101, 1131, 1133, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). 2. The Veteran, the Veteran’s acquired psychiatric disorder was incurred during active duty service in the Republic of Vietnam. 38 U.S.C. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from February 1969 to February 1971. The Veteran’s certificate of release from active duty (DD214) reveals that he was a 61B20, Water Craft Operator. The DD214 also reveals that the Veteran was the recipient of the Vietnam Service Medal and the Republic of Vietnam Campaign Medal w/ 60 Device. Service Connection In general, a service connection claim may be granted for a disability resulting from a disease or injury incurred in, or aggravated by, active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). “To establish a right to compensation for a present disability, a Veteran must 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-the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010)(quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In each case where service connection for any disability is sought, due consideration shall be given to the places, types, and circumstances of such Veteran’s service as shown by such Veteran’s service record, the official history of each organization in which such Veteran served, such Veteran’s medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154 (a). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309 (a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303 (b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for Hepatitis C is denied. In August 2011, the Veteran submitted his VA Form 21-526. Therein, the Veteran initiated his claim for entitlement to service connection for Hepatitis C. Again, service connection may be granted for a disability resulting from a disease or injury incurred in, or aggravated by, active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Generally, the three requisite elements for service-connection entitlement include: 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 Holton, 557 F.3d at 1366. The Board notes that Hepatitis C is not a chronic condition under 38 C.F.R. § 3.309, so continuity of symptomatology is not an alternative means of establishing a nexus between the Veteran’s current diagnosis and service in this case. The Boards finds that the Veteran has a current diagnosis for Hepatitis C. In September 2012, the Veteran’s treatment records from Regional Radiology, P.C. were associated with his claims file. Therein, on February 17, 2009, Dr. JK reported that the Veteran maintained a liver nodule, which was verified by CT scan. While attempting to rule out hepatocellular carcinoma, Dr. JK also observed a history of Hepatitis C. The observation made by Dr. JK, regarding a history of Hepatitis C, substantiates the presence of a current diagnosis. Consequently, the first element of service-connection claim has been satisfied. See Holton, 557 F.3d at 1366. In September 2012, the Veteran submitted a type-written statement, which specifically addressed his entitlement claim for service connection for Hepatitis C. The Veteran posited that, “I was also exposed to blood; handled dead bodies for shipment to the U.S. and was splattered with blood by a fellow shoulder who was wounded while standing next to me. I was never tested for Hepatitis C because according to my doctors the test is not part of routine testing for someone who doesn’t have any risk factors. I was tested for Hepatitis C in February 2009 for the first time because with a routine blood test, my liver enzymes were elevated.” The Veteran also posited that, “after my service in Vietnam, I wanted to donate my blood to the men still serving in Vietnam since I am a universal donor . . . and was told my blood was ‘no good.’” In June 2015, the Veteran submitted another type-written statement. Regarding Hepatitis C, the Veteran posited that, “the only risk factor that I do have is a tattoo, but reading up on tattoos and Hepatitis C, the research shows that it is a secondary cause. In other words, if your immune system is compromised in some way, getting a tattoo might cause Chronic Hepatitis C. I have no other risk factors. I have always been very health. First surgery in my lifetime was gallbladder surgery when I was 60. I am married to my wife for 33 years, together for over 35 years she doesn’t have Chronic Hepatis C.” The Veteran also revealed that, “I only found out about Chronic Hepatitis C six years ago.” In July 2015, the Veteran’s service treatment records (STRs) were associated with his claims file. After deliberate and careful review, the Board found no mention of Hepatitis C within the Veteran’s military treatment records and/or notations. Moreover, the Board found no mention of any signs or symptoms that would support an in-service incurrence of the Veteran’s currently endured Hepatitis C. In fact, as noted in the Veteran’s June 2015 statement, Hepatitis C was not identified for more than three decades after his separation from the Army. Ultimately, the Board finds that the evidence, to include the Veteran’s STRs, does not support an in-service incurrence of Hepatitis C. In December 2015, the Veteran’s representative submitted an informal hearing presentation (IHP). Therein, the Veteran posited that, “he was exposed to blood and handled dead bodies while in Vietnam. His claim was denied because it was determined that there is no evidence establishing relationship between his hepatitis C and any documented or established event, injury or disease that occurred during his service. In his Form 9, he stated that the only risk factor he has is a tattoo. He had no other risk factor. He reports that he has always been healthy. Another thing that he brought up is about getting immunized with an air gun in service. We support the Veteran’ contention that his . . . hepatitis C (is) due to his Vietnam service.” Competent medical evidence means 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 mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. See 38 C.F.R. § 3.159 (a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. See 38 C.F.R. § 3.159 (a)(2). 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”). The Board notes the Veteran’s repeated and adamant statements that claim an in-service incurrence is the only explanation for his current Hepatitis C. But, while the Board appreciates the Veteran’s contention, the etiology of his Hepatitis C simply falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1733 n. 4 (lay persons not competent to diagnose cancer). Without evidence to substantiate the second and third requisite elements of a service-connection claim, the Board finds that the preponderance of the evidence stands counter to the Veteran’s entitlement for Hepatitis C. Since the preponderance of the evidence is against this claim, the provisions of 38 U.S.C. § 5107(b), regarding reasonable doubt, are not applicable. The Veteran’s claim of entitlement to service connection for Hepatitis C must be denied, because the preponderance of the evidence weighs against his claim. 2. Entitlement to service connection for an acquired psychiatric disorder is granted. In August 2011, the Veteran submitted his VA Form 21-526. Therein, the Veteran initiated his claim for entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD). Again, establishing service connection generally requires competent evidence showing: (1) the existence of a current 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). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection for PTSD has unique evidentiary requirements. It generally requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. See 38 C.F.R. § 3.304 (f); see also Cohen v. Brown, 10 Vet. App. 128 (1997). As to the first requirement, of a medical diagnosis for PTSD, effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations that define the term “psychosis” to remove outdated references to the DSM-IV and replace them with references to the recently updated Diagnostic and Statistical Manual (Fifth Edition) (the DSM-V). See 79 Fed. Reg. 45,094 (August 4, 2014). VA adopted as final, without change, this interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board on or before August 4, 2014. See Schedule for Rating Disabilities - Mental Disorders and Definition of Psychosis for Certain VA Purposes, 80 Fed. Reg. 14,308 (March 19, 2015). Here, as the Veteran’s claim was certified to the Board in September 2015, the amended regulation applies. Furthermore, with regard to an actual diagnosis of PTSD, lay persons are not categorically incompetent to speak on matters of medical diagnosis or etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board must consider the type of condition specifically claimed and whether it is readily amenable to lay diagnosis or probative comment on etiology. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). In this regard, the Federal Circuit recently held that “PTSD is not the type of medical condition that lay evidence . . . is competent and sufficient to identify.” Young v. McDonald, 766 F.3d 1348, 1352-53 (Fed. Cir. 2014). Regardless, the Board acknowledges the Veteran is competent to report psychiatric symptoms both during and after service. See 38 C.F.R. § 3.159 (a)(2); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)(discussing that Veteran is competent to report a contemporaneous medical diagnosis); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (discussing general competency of a Veteran to report psychiatric symptoms). As for the second requirement, an in-service stressor, the evidence necessary to establish the occurrence of any in-service stressor varies depending upon the circumstances of the case. VA has provided for specific types of cases where lay evidence alone may be sufficient to describe the stressor and further corroborating evidence will not be required. Corroborating evidence is not required in cases where (1) PTSD is diagnosed in service; (2) the evidence establishes the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat; (3) the stressor is related to the Veteran’s fear of hostile military or terrorist activity; or (4) the evidence establishes that the Veteran was a prisoner-of-war and the stressor is related to that prisoner-of-war experience. 38 C.F.R. § 3.304. In any of the above situations, the Veteran’s lay testimony or statement is accepted as conclusive evidence of the stressor’s occurrence and no further development or corroborative evidence is required providing that such testimony is found to be consistent with the circumstances, conditions, or hardships of service and there is no clear and convincing evidence to the contrary. See 38 U.S.C. § 1154 (b); 38 C.F.R. § 3.304. The determination of whether the requirements of service connection have been met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). In making these determinations, the Board must consider and assess the credibility and weight of all evidence in the claim file, including the medical and lay evidence, to determine its probative value. In doing so, the Board must provide its reasoning for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Barr v. Nicholson, 21 Vet. App. 303 (2007). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In September 2011, VA received the Veteran’s treatment notations from the Brooklyn HHS. Therein, on October 25, 2010, Dr. SP completed a psychiatry outpatient note. After an interview of the Veteran, Dr. SP diagnosed an adjustment disorder with disturbance of mood. Within her impression, diagnosis and plan, Dr. SP noted that, “(the Veteran) is a 63 yr old Vietnam War Veteran who presents with some emotional lability in keeping with the contest. Although this intense emotion reaction is evident he seems to be functioning well socially. Furthermore, though suggestive of chronic sub threshold PTSD like symptoms, at this time there is no indication for any acute interventions. He seems to have coped will over the years and will benefit from simply leaving certain memories and experiences not questioned. He has had no history of self injurious behavior and has an excellent support system by way of his family. In addition, the experience of having been diagnosed with Hep C, his retirement and his subjective displeasure about the Army contribute to his emotion lability. Moreover, the intense emotion expression seems to have been a pervasive pattern even before he was drafted, but may have been compounded by the war experience.” In December 2011, the Veteran underwent a VA examination to determine the nature and etiology of any currently endured acquired psychiatric disability, to include PTSD. In the resultant examination report, Dr. MPH provided a diagnosis of adjustment disorder with disturbance of emotions and conduct. In her report, Dr. MPH did not diagnose PTSD, because she erroneously determined that the Veteran’s symptoms did not satisfy regulatory criteria for PTSD. In support of her assigned diagnosis, Dr. MPH relied on the following in-service stressor, “picking up dead bodies every night, had to go and give support to places were there had been explosions.” Important to this Board analysis, Dr. MPH noted that the Veteran’s stressors related to the Veteran’s fear of hostile military or terrorist activity. At that time, Dr. MPH revealed that the Veteran’s disability resulted in, “occupation and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress . . ..” Important to this Board analysis, Dr. MPH opined that, “(t)he Veteran is diagnosed with Adjustment disorder with disturbances of mood and conduct that are at least as likely as not due to his military combat experiences and fear of hostile military activity.” In April 2013, the Veteran submitted a type-written statement, regarding his in-service stressors while deployed in the Republic of Vietnam. Therein, the Veteran posited that, “I was in the 567 Transportation Unit stationed in Camp David outside of Saigon. Our Company’s assignment was to recover whatever equipment was left behind. Bear Cat . . . was an Army depot that was consistently under attack. We would go in and when we hit the perimeter, go on ‘sweeps’ to recover tanks left in the field. Inside the tanks sere dead soldiers. It was so hot there than when you touched the body, the skin would just come off. Tay Ninh was also another place we went often. It’s very difficult for me to think of these events again and couldn’t say that I only handled dead bodies over a tow month date range when it was intermittently throughout the entire year and a day that I spent in country . . ..” In June 2013, a military records specialist submitted her formal finding of information required to corroborate in-service stressor(s). Therein, AY-G indicated the Veteran’s claim was not sent to the Joint Services Records Research Center (JSRRC) because, among other reasons, the Veteran did not return a VA Form 21-0781. In June 2015, the Veteran submitted another type-written statement. Regarding his acquired psychiatric disability claim, the Veteran revealed that, during a trip to the Brooklyn VA medical clinic for hearing aids, “(t)he intake officer started to ask questions about where I served in Vietnam and said I needed to go to the Agent Orange Clinic. Also went there and being asked questions brought back memories I had long ago suppressed. I was also sent to see a psychiatrist, by the Agent Orange personnel because I became very emotional–couldn’t speak and there were tears in my eyes. She handed me a card and wrote on the back of it that I had PTSD. I cannot watch any kind of war movie without getting emotional so I don’t.” In December 2015, the Veteran’s representative submitted an informal hearing presentation (IHP). Therein, the Veteran observed that, “(h)e underwent a VA examination . . .. He was diagnosed with adjustment disorder with disturbance of emotions and conduct. The examiner opined that his adjustment disorder with disturbances of mood and conduct is ast least as likely as not due to his military combat experiences and fear of hostile military activity. Although he was diagnosed with adjustment disorder, his claim was denied because it was determined that his condition was not incurred in service or is caused by his military service. It was explained that the information provided by the Veteran regarding his stressor are insufficient to request verification. However, it was noted that the Veteran’s service in Vietnam . . . is consistent with fear of hostile military or terrorist activity.” In August 2018, the Veteran’s representative submitted another informal hearing presentation (IHP). Therein, the representative reiterated his previous contention, “(t)he Veteran is sincere in his belief PTSD . . . (is) related to his military service and believes that service connection is warranted. We argue that the veteran reported stressors of picking up dead bodies every night and giving support to places where there had been explosions. The VA examiner related the veteran’s adjustment disorder to his reported combat experiences in Vietnam although VA was unable to establish a combat stressor. The veteran’s DD 214 shows that he spent one year in Vietnam which makes it possible . . . he performed the duties he stated. The fact that he was in Vietnam, which is a war zone, is a stressor in itself.” After consideration of the controlling regulations provided above, in conjunction with the evidence surrounding the Veteran’s acquired psychiatric disability claim, the Board finds that the evidence, when considered in a light most favorable to the Veteran, warrants entitlement to service connection for an acquired psychiatric disorder. As to the first requisite element, the Board observes that, in December 2011, Dr. MPH diagnosed the Veteran with an adjustment disorder with disturbance of emotions and conduct. Regarding the second requisite element, the December 2011 examiner attributed the Veteran’s adjustment disorder to his military service. Finally, with respect to the requisite third element, medical evidence of a link between current symptomatology and the claimed in-service stressor, the Board finds sufficient credible evidence which establishes this nexus. In December 2011, Dr. MPH opined that, “(t)he Veteran is diagnosed with Adjustment disorder with disturbances of mood and conduct that are at least as likely as not due to his military combat experiences and fear of hostile military activity.” Ultimately, the preponderance of the evidence favors the Veteran’s claim for service connection entitlement for an acquired psychiatric disorder. Accordingly, this service-connection claim must be granted. In reaching this determination, the Board again acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. This doctrine of reasonable doubt is applicable in this case because the preponderance of the   evidence favors the Veteran’s claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C. § 5107(b). DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD RLBJ, Associate Counsel