Citation Nr: 18118309 Decision Date: 07/12/18 Archive Date: 07/12/18 DOCKET NO. 12-21 985 DATE: July 12, 2018 ORDER Entitlement to service connection for hepatitis C is denied. Entitlement to service connection for an acquired psychiatric disorder, claimed as depression is denied. FINDINGS OF FACT 1. The preponderance of evidence weighs against finding that the Veteran’s current hepatitis C was incurred in or is otherwise related to the Veteran’s active duty service. 2. The Veteran’s depression is not etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for hepatitis C have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.301, 3.159, 3.303 (2017). 2. The criteria for entitlement to service connection for depression have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As an initial matter, the Board notes that with regard to VA’s duty to assist, the evidence shows that the Veteran was scheduled for VA examinations for his hepatitis C and depression conditions pursuant to the Board’s October 2016 remand. Concerning the Veteran’s depression condition, the Board noted in its remand that the Veteran requested a rescheduling of his May 2012 examination as he presented to the examination under the influence. Accordingly, the Board directed that a new examination be scheduled. However, the Veteran was in fact afforded a new examination in September 2012, prior to the Board’s remand. Nevertheless, in an attempt to comply with remand directives, a new examination was scheduled; but the Veteran failed to appear. Likewise, the Veteran failed to appear for the scheduled examination for his hepatitis C condition. In this regard, the Board emphasizes that the duty to assist is a two-way street. As the Veteran failed to attend or reschedule the requested VA examinations, there is no further duty to provide any more VA examinations relating to this claim. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Therefore, the Board finds that VA has satisfied its duty to assist and remand directives have been substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). To that end, the Veteran’s claims will be decided based on the evidence of record. Service Connection 1. Entitlement to service connection for hepatitis C. The Veteran contends that his hepatitis C condition was incurred in or caused by his military service. Specifically, the Veteran reported in his NOD that his hepatitis C is due to tattoos he received while in service. The Veteran further reported in his hepatitis C questionnaire that he engaged in high-risk sexual activity, shared razor blades, and used intravenous/intranasal drugs while in service. In evaluating the Veteran’s claim for service connection, the question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of hepatitis C, and evidence shows that the Veteran had risk factors that cause hepatitis C while in service, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of hepatitis C began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a) (d). Factual background shows that the Veteran received a VA examination in September 2012 in which the examiner found that the Veteran’s hepatitis C was not incurred in or caused by service as the Veteran’s tattoos did not present any signs or symptoms at military discharge or decades post discharge. The Board found this medical opinion inadequate since the examiner relied on the absence of signs or symptoms in service concerning the Veteran’s tattoos. Additionally, the examiner did not consider the relative likelihood of other risk factors noted by the Veteran. As a result, an addendum opinion was obtained. In the April 2017 addendum opinion, this examiner also found a negative nexus for the Veteran’s hepatitis C condition noting that there is no medical evidence to support the diagnosis of hepatitis C in service. The examiner noted that there were no signs or symptoms at military discharge or for decades post-military. The examiner further noted that the Veteran’s hepatitis C is likely caused by illicit drug use and high-risk sexual activity. As this examiner did not provide an adequate medical rationale, a clarifying addendum opinion was obtained in July 2017. In the clarifying opinion, the examiner continued to find that the Veteran’s hepatitis C was not incurred in, or caused by, the Veteran’s military service. In so finding, the examiner considered and evaluated the Veteran’s risk factors associated with hepatitis C. For example, the examiner referenced the Veteran’s report of high-risk sexual activity and explained that sexual contact has been clearly identified as a means of transmitting hepatitis C. However, the examiner noted that primary risk factors include number of partners, unprotected sex, simultaneous infection with other STD’s, and traumatic sexual activity, and that the Veteran had no treatment for an STD while in service. Additionally, the examiner considered that the Veteran was incarcerated for a period of time noting that prisoners have an enormous incidence of infection. Although the evidence does not show where the Veteran was imprisoned, the examiner explained that rates in California prisons exceed 80 percent, while some institutions report nearly 100 percent of prisoners being infected. Further, the examiner considered the Veteran’s tattoos noting that although the Veteran had two tattoos placed while in service, there is no evidence of the Veteran being treated for, or evaluated for an illness suggestive of hepatitis C in service. Moreover, the examiner noted that records reflect that the Veteran had a long-standing history of alcohol abuse beginning as far back as a teenager, and explained that about one third of people who are alcoholics are also infected with hepatitis C virus. The examiner ultimately found that the likely cause of the Veteran’s hepatitis C was IV drug use as this represents the greatest single risk for infection given that medical literature states that within six months to a year after beginning intravenous drug use, 50-80 percent of drug users test positive for hepatitis C. Considering the above and remaining evidence, the Board finds the July 2017 medical opinion probative and that the evidence weighs against a finding for service connection. The July 2017 examiner supported his findings regarding risk factors in service, explaining that the Veteran was not treated for any STD or any other illness that may be associated with hepatitis C while in service. Moreover, the examiner determined that the Veteran’s condition was most likely caused by his drug usage. The July 2017 examiner explained that 50-80 percent of drug users test positive for hepatitis C. Notably, the Veteran has reported a long history of drug abuse as the Veteran reported taking methamphetamines for the past 15-20 years in a May 2009 psychiatric visit. He also reported a past use of cocaine, and has been diagnosed on multiple occasions with substance abuse dependence. The Board is aware that the July 2017 examiner found that the Veteran did not engage in intravenous/intranasal drug usage which is contrary to the Veteran’s reports in his hepatitis C questionnaire. Nonetheless, the error is harmless as the Board finds that the Veteran’s substance abuse and addiction constitutes willful misconduct, and service connection for hepatitis C based on IV or intranasal drug abuse cannot be established. 38 U.S.C. § 105; 38 C.F.R. § 3.301. Given the above, the Board finds the July 2017 medical opinion is the most probative evidence of record because it is based on the Veteran’s complete medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Veteran believes his hepatitis C condition is related to an in-service injury, event, or disease, including high-risk sexual activity and tattoo placement, he is not competent to provide a nexus opinion in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board finds that the preponderance of the evidence is against the Veteran’s claim, and the benefit of the doubt doctrine does not apply. Accordingly, 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). 2. Entitlement to service connection for an acquired psychiatric disorder, claimed as depression. The Veteran also seeks service connection for an acquired psychiatric disorder, namely, depression. After reviewing the record, the Board finds that the evidence does not support a grant of service connection. In so finding, the Board notes that factual background shows that the Veteran was diagnosed with emotionally unstable personality, severe, while in service. As a result, discharge was recommended. Post-service records show that the Veteran has received diagnoses of depressive disorder, substance abuse disorder, and substance-induced mood disorder; however, none of the psychiatric diagnoses have been etiologically related to the Veteran’s time in service. For example, the evidence shows that the Veteran was hospitalized for depression in August 1994 due to stress and unresolved grief. In May 2009, the Veteran was hospitalized for depression and suicidal ideation. While hospitalized, the Veteran received a psychiatric evaluation where the examiner diagnosed the Veteran with substance-induced mood disorder, r/o major depressive disorder; however, the Veteran’s underlying stressor was the impending foreclosure of his home. Further, during his hospitalization, the Veteran reported first feeling depressed in 1995 after getting into legal trouble for dealing drugs. Additionally, the Veteran reported that his primary concern involved his current financial situation and the possibility of losing his home. He also expressed concern about the health of his cat. He further reported that he never served in combat while in service and denied any flashbacks or nightmares related to anything he saw in service or in prison. Moreover, a subsequent examination during his hospitalization yielded a diagnosis of major depressive disorder and substance abuse dependence, and the examiner determined that the Veteran’s main stressor was due to his financial problems. A May 2009 internal medicine resident note also shows that the Veteran was admitted to psychiatry in 1987 for depression and drug use. This notion is supported by the September 2012 examiner who found that the Veteran’s addiction is a significant contributor to his depressed mood. The examiner also found that other current situational factors such as health problems, problems with finances, threat of losing his home, loneliness, and boredom contribute to the Veteran’s depression. As a result, the examiner diagnosed the Veteran with polysubstance abuse, depressive disorder NOS, and personality disorder NOS, and concluded that the Veteran’s current depression was not caused by or the result of any disease, injury, or event during service. Given the above and remaining evidence, the Board finds that service connection for depression is not warranted. Although the Veteran was diagnosed with a psychiatric condition while in service, the condition diagnosed has not been found to be related to his currently diagnosed condition of depression. As mentioned previously, the Veteran’s depression has been related to circumstances unrelated to his military service. Moreover, the Board is aware that the Veteran has been diagnosed with substance abuse disorder; however, compensation cannot be awarded for either a primary drug or alcohol abuse disability incurred during service or for any secondary disability that resulted from primary drug abuse during service. Allen v. Principi, 237 F.3d 1368, 1376 (Fed. Cir. 2001). Consequently, as the evidence is significant in showing that the Veteran’s depression is unrelated to any injury, event, or otherwise related to service; but rather, is related to his substance abuse and current situational stressors, with no evidence of record to the contrary, the Board finds that the preponderance of evidence is against the claim. Accordingly, the Veteran’s claim for a psychiatric disability is denied. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Laffitte, Kanisha