Citation Nr: 18161250 Decision Date: 12/31/18 Archive Date: 12/31/18 DOCKET NO. 15-15 695 DATE: December 31, 2018 ORDER Service connection for hepatitis C, to include as secondary to a psychiatric disability, is denied. Service connection for a variously diagnosed psychiatric disability is denied. FINDINGS OF FACT 1. The Veteran’s hepatitis C is not etiologically related to service; or caused or aggravated by a service-connected disability. 2. A psychiatric disability is not shown to have been caused or aggravated by an event, disease, or injury in service. CONCLUSIONS OF LAW 1. The criteria for service connection for hepatitis C have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.310. 2. The criteria for service connection for a variously diagnosed psychiatric disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from November 1973 to July 1975. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 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. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for any disease initially diagnosed after service 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 may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disability which is aggravated by a service connected disability. Whenever there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b). Service connection for hepatitis C Here, the Veteran seeks service connection for hepatitis C contending that he obtained the condition while in service. After reviewing the evidence of record, the Board finds that service connection is not warranted. Service treatment records (STRs) are silent as to any complaints, treatment, or diagnosis, for hepatitis C. During the April 1975 discharge examination, the Veteran denied any problems with his liver, and clinical evaluation revealed all his systems were normal. During a subsequent August 1975 examination, the Veteran denied any health problems and indicated that he was in good health. Post-service treatment records reveal the Veteran suffers from hepatitis C, currently with an indication of an onset of the discovery in the 1990s. In several lay statements he reports two in-service risk factors regarding his claim for hepatitis C: 1) being hospitalized, and 2) sharing needles with fellow soldiers in the barracks. The post-service treatment evidence is negative for any findings that the currently assessed hepatitis C was contracted during the Veteran’s active military service by any in-service risk factor that is not deemed to be of a willful misconduct origin, to include any illicit drug usage. Even if the Veteran’s was hospitalized in service, he did not report receiving a blood transfusion. He reported that his blood was drawn and he was given medication with needles. There is no indication from the record that any treatment he received while hospitalized would have exposed him to the blood of another. Further, his in-service drug use is considered willful misconduct, whether he was pressured into doing drugs or not. The Veteran is competent to report instances when he believes he was exposed to hepatitis C, but he is not competent to link any in service event to his currently diagnosed hepatitis C. Moreover, there is no in-service event, injury, or disease—other than his drug use—that is a risk factor for his hepatitis C. VA cannot compensate for diseases or disabilities caused by the willful misconduct of the Veteran. Therefore, there is no qualifying in-service event, injury, or disease that could have caused his hepatitis C. Considering the above, the Board concludes that an examination and opinion is not needed because the only evidence indicating such a disability is related to service are general, conclusory lay statements, and these statements are not sufficient to trigger VA’s obligation to obtain an opinion. See McClendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4). The Veteran asserts alternate secondary service connection theory of entitlement to service connection for hepatitis C. Regarding the secondary service connection theory of entitlement, i.e., that his hepatitis C is secondary to a psychiatric disability, as will be discussed below, service connection for a psychiatric disability is not warranted, thus the secondary service connection claim lacks legal merit, and the appeal in the matter is denied in this decision. See 38 C.F.R. § 3.310. As such, the Board finds that the preponderance of the evidence is against the Veteran’s claim. As such, the benefit of the doubt doctrine does not apply, and the claim for service connection for hepatitis C is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990) Service connection for a psychiatric disability The Veteran contends that his current psychiatric disability is due to his military service. He reports that he experienced unfair treatment in service and discrimination. The STRs are silent for any findings indicating any chronic mental condition. The Veteran received an administrative discharge, under honorable conditions, under the provisions of Chapter 13. He underwent a psychiatric evaluation which was shown to be normal with no chronic mental conditions identified. No subjective reports of any symptoms were listed on the separation examination in April 1975 by the Veteran. The clinical psychiatric evaluation on the separation examination was also normal. The post-service treatment evidence shows that the Veteran has been evaluated and treated for extensively for various mental health conditions with formal treatment beginning in the early-1990s—many years after his discharge from active military service in July of 1975. The Board finds that there is not a credible in-service event, injury, or disease that caused his current acquired psychiatric disorder. SSA records show that the Veteran was awarded SSA disability benefits based on his history of affective/mood disorders and borderline intellectual functioning. The SSA judge determined that the Veteran was disabled as of 1998. Following a medical evaluation for SSA purposes in 1999, he was noted to have depression associated with mistreatment at work. He reported to SSA in 2010 that he has nightmares associated with Hurricane Katrina. The majority of the SSA records attribute his psychiatric symptoms to his post-service employment and/or his history of polysubstance abuse. Notably, when describing his military history to medical providers in conjunction with his SSA claim, he did not report in-service trauma or other service events that would have caused an acquired psychiatric disorder. One treating practitioner, Dr. V.P., generally noted PTSD due to Army, but the records are otherwise illegible. Other records from Dr. V.P. show that he attributed the Veteran’s PTSD to Hurricane Katrina. The Board finds that the Veteran’s reports of traumatic events during service are not credible. He reported being woken up by barking dogs looking for drugs. The Veteran self-admitted to using drugs in service, and it is reasonable that search dogs were used to find illegal drugs. Further, his reports of harassment and discrimination lack credibility as the contemporaneous evidence of record, as well as the SSA records, are generally devoid of any reports of in-service trauma, discrimination, or maltreatment. The bulk of the post-service evidence (other than a few notations of Army-related problems without any detailed descriptions) shows the onset of psychiatric symptoms in the 1990s that were attributed either to his post-service employment or his history of polysubstance abuse. In fact, he filed for SSA benefits immediately following his resignation from his most recent employment. In a November 2018 private opinion, J.H.P., Psy.D., found that based on the Veteran’s report, his current, variously diagnosed psychiatric disability was due to service. In reaching her conclusion, she pointed to the records she reviewed, and statements from the Veteran and his relatives. The Board affords this opinion little probative weight as it is mainly based upon the Veteran’s reports that the Board has found lack credibility. Namely, the alleged in-service trauma. His relatives are certainly competent to observe how the Veteran behaved prior to service and after, but they are not competent to determine that an in-service injury, event, or disease caused his claimed psychiatric disorder. Further, Dr. J.H.P. did not address the significance of the Veteran’s reported in-service drug use. Again, alcohol and/or drug use is considered willful misconduct, and direct service connection cannot be granted based on a disability caused by willful misconduct. In sum, although the private Psy.D. is competent to provide an opinion, it is afforded little probative weight as it fails to provide a detailed rationale and it is based upon an inaccurate factual basis. Again, the Board finds there is no in-service event, injury, or disease upon which his disability can be based, and the great weight of the post-service evidence attributes his psychiatric symptoms to service or polysubstance abuse. There is a current psychiatric diagnosis; the first element of service connection is satisfied. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000). As noted, the STRs show no complaints of or treatment for a psychiatric disability, and the Board has found that his reports of any in-service trauma lack credibility and are far outweighed by the majority of the post-service evidence. Further, although a private provider indicated that the Veteran’s psychiatric disability is due to his military service, the Board observes that the provider provided no adequate rationale and based her opinion on evidence the Board has found not credible. Accordingly, the private opinion is assigned little, if any, probative weight. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Therefore, the second and third elements of service connection have not been met. The Board observes that the Veteran has not been provided a VA examination and opinion. An examination and opinion is not needed because the Board finds that there is no evidence of a credible in-service event, injury, or disease which could have caused the claimed disability. See McClendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4). Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for a variously diagnosed psychiatric disability and the benefit of the doubt rule enunciated in 38 U.S.C. § 5107(b) is not for application. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. McPhaull, Counsel