Citation Nr: 18119613 Decision Date: 07/19/18 Archive Date: 07/18/18 DOCKET NO. 15-14 098 DATE: July 19, 2018 ORDER Entitlement to service connection for hepatitis C is denied. Entitlement to service connection for chloracne, also claimed as a skin condition, is denied. Entitlement to service connection for a sleep disability, claimed as secondary to PTSD, is granted. Entitlement to an earlier effective date for the date of service connection for posttraumatic stress disorder (PTSD) is granted with an effective date of May 9, 2003. Entitlement to a total disability rating based upon unemployability (TDIU) is granted. REMANDED In addition, the issue of an initial increased rating for service connected PTSD has been remanded. The Board notes that the Veteran filed a Notice of Disagreement in connection with a December 2011 rating decision for the denial of service connection for the following issues: hepatitis C, sleep disability, peripheral neuropathy, chloracne, and type II diabetes mellitus. In addition, the Veteran disagreed with the initial 30 percent rating for his PTSD, effective December 10, 2010. In an April 2015 rating decision, the Veteran was granted service-connection for diabetes mellitus and peripheral neuropathy. Further, his PTSD evaluation was increased to 70 percent effective December 10, 2010. As the Veteran was not granted a 100 percent rating for his PTSD, which is the full grant of benefits, his claim for an increased rating is still on appeal. The Board notes that the Veteran filed a Notice of Disagreement on the April 2015 rating decision contesting the rating of each issue contained therein. As the evaluation of the PTSD claim is a part of the original rating decision on appeal, that issue is addressed herein. However, as the Veteran was appealing the grant of service connection for type II diabetes mellitus and peripheral neuropathy and service connection was granted, this issue is no longer on appeal because the benefit sought (service connection) was granted in full. FINDINGS OF FACT 1. The Veteran’s hepatitis C disorder is a result of his own willful misconduct. 2. There is no competent evidence of a skin disorder, including chloracne, that has been diagnosed. 3. The probative medical evidence of record indicates that the Veteran’s sleep disorder is secondary to his service-connected PTSD. 4. The Veteran first applied for service connection for PTSD on May 9, 2003 and this claim was non-final; therefore, the appeal remained open until the grant of service connection for PTSD in December 2011. 5. The evidence of record indicates that the Veteran’s service-connected disabilities prevented him from obtaining and maintaining substantially gainful employment consistent with his educational and vocational experience. CONCLUSIONS OF LAW 1. The criteria for service connection for hepatitis C have not been satisfied. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.301. 2. The criteria for service connection for chloracne, also claimed as a skin condition, have not been satisfied. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for a sleep disorder have been satisfied. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for an earlier effective date of May 9, 2003 for the award of service connection for PTSD have been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400. 5. The criteria for entitlement to a TDIU have been satisfied. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.10, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army from December 1965 to October 1967. SERVICE CONNECTION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 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 The Veteran asserts that he is entitled to service connection for hepatitis C because he did not have the disease before service, he was exposed to intravenous drug use while serving in Vietnam, and he had a diagnosis of hepatitis C after service. The law prohibits granting service connection for injuries that result from willful misconduct. 38 C.F.R. § 3.1(n). An injury or disease incurred during active military, naval, or air service shall not be deemed to have been incurred in line of duty if such injury or disease was a result of the abuse of alcohol or drugs by the person on whose service benefits are claimed. 38 C.F.R. § 3.301(d). The April 2011 statement by the Veteran appears to link his hepatitis C disease with intravenous (IV) drug use and unprotected sex. The Veteran attended a VA examination in August 2011 for his hepatitis C disorder. The examiner found that of the 13 risk factors for contracting hepatitis C, the Veteran responded positive to intranasal cocaine use, IV drug use, and unprotected sex. However, ultimately the VA examiner gave the opinion that while unprotected sex has been deemed a risk factor for contracting hepatitis C, research has shown that the major risk for acquiring the disease is via IV drug use. Therefore, it is as least as likely as not that the Veteran’s hepatitis C is related to his IV drug use during the military, as opposed to as a result of high risk sexual activity. The Veteran believes his hepatitis C resulted from other, non-disqualifying factors. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (providing that although a veteran is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, a veteran is not competent to provide evidence as to more complex medical questions). Furthermore, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). However, the Board finds that the Veteran does not possess the requisite medical knowledge to make such a determination. The VA examiner’s opinion was thorough and well-reasoned. Therefore, the Board finds that hepatitis C developed because of the Veteran’s intravenous drug use while in service; thus, service connection for hepatitis C must be denied. 2. Entitlement to service connection for chloracne, also claimed as a skin condition The Board notes that the Veteran filed for service connection for chloracne, also claimed as a skin condition. However, the Veteran has not specifically asserted how he developed this condition, to include as being exposed to herbicides while serving in Vietnam. The Board notes that while chloracne is a condition for which a Veteran can be presumptively service-connected under 38 C.F.R. § 3.309(e), given that the Veteran has no diagnosis, this discussion is moot. The Board has reviewed the Veteran’s service treatment records and current medical records. There is no evidence of any diagnosis of chloracne nor of any other skin condition like acne at any point in the medical file. The Veteran has provided no additional information than to file his claim. He has not described treatment for or manifestations of his claimed skin disorder, and the claims file reflects no evidence of a diagnosis of or treatment for a skin disorder. As the only suggestion of a skin disorder is the Veteran’s claim, which does not provide enough information to show or even suggest that there is a current diagnosis, the appeal fails on this matter. Therefore, the Board finds that the Veteran does not have a diagnosis of chloracne or a skin disorder. See Brammer v. Derwinski, 3 Vet. App. 223 (1992) (In the absence of proof of a present disability, there is no valid claim for service connection; an appellant’s belief that he or she is entitled to some sort of benefit simply because he or she had a disease or injury while on active service is mistaken, as Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability at any point during the claim or appeal period). It is acknowledged that the Veteran is competent to give evidence about his observable symptomatology. Layno v. Brown, 6 Vet. App. 465 (1994). It is further acknowledged that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). As a lay person, the Veteran is competent to relate some symptoms that may be associated with a skin disorder, but he does not have the requisite medical knowledge, training, or experience to be able to diagnose the medically complex disorder of chloracne nor opine on its etiology. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). Thus, the Veteran is not competent to diagnose his claim of chloracne or a skin disorder. Therefore, the preponderance of the evidence is against the claim for service connection for a chloracne, and the benefit of the doubt rule does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Entitlement to service connection for a sleep disability, claimed as sleep disturbance The Veteran contends that the Veteran’s sleep disability (claimed as sleep disturbance) are attributed to the Veteran’s PTSD disability. The Board notes that the Veteran is currently service-connected for PTSD. Service connection may be established on a secondary basis for a disability which is aggravated by a service-connected disability. See 38 C.F.R § 3.310. The Veteran submitted a private medical opinion from D.W., Ph.D., dated October 2015. This opinion indicates that the Veteran’s has the symptom of “chronic sleep impairment” as a result of his PTSD. Similar findings were indicated on VA examinations in April 2011 and January 2015. The medical records do not indicate a separately diagnosed sleep disorder. The Board gives great probative weight to these opinions that find that the Veteran has a chronic sleep impairment and that the impairment is secondary to his PTSD. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Therefore, the preponderance of the evidence is for the claim for service connection for a chronic sleep impairment, and the benefit of the doubt rule applies. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. EARLIER EFFECTIVE DATE 4. Entitlement to an earlier effective date for PTSD The Veteran contends that he is entitled to an earlier effective date than December 10, 2010 for his grant of service connection for PTSD. The Veteran applied for service connection for PTSD on May 9, 2003. This claim was adjudicated through a rating decision dated July 2003. The Veteran filed a Notice of Disagreement and a statement of the case (SOC) was issued on this claim on August 15, 2005. No response to the SOC was received within 60 days of its issuance nor was an extension of time submitted. See 38 C.F.R. §§ 20.302, 20.303. In August 2015, Hurricane Katrina struck New Orleans, Louisiana. Due to its destructive force, many residents fled the city and many of their belongings were destroyed. The Veteran was one such resident and he relocated to Georgia. In March 2006, the Veteran submitted a statement indicating that he had been displaced due to Katrina and that he was checking on the status of his claim. In addition, he updated his address to a location in Georgia. In June 2006, the Veteran was sent a letter to that address which informed him that due to his circumstances with Hurricane Katrina, he was being given an additional 60 days to respond to the SOC. The Veteran did not respond to that notice; thus, his case was closed. The Veteran next contacted the agency of original jurisdiction (AOJ) via his congressional representative in November 2007. The Veteran’s address was now back in Louisiana. The procedural posture of the case was explained by the AOJ via a letter in November 2007. The Veteran once again submitted a statement about his PTSD claim in January 2008 and the AOJ responded in the same fashion as the November 2007 letter. In each of the above communications, the AOJ did not treat the Veteran’s statements as a new claim for benefits, but rather a continuation of his PTSD claim filed May 2003. Generally, there is a presumption of regularity under which it is presumed that government officials have properly discharged their official duties. Ashley v. Derwinski, 2 Vet. App. 307, 308-09 (1992). This presumption extends to mailings discharged in the course of the Secretary’s official duties. Id.; see also Woods v. Gober, 14 Vet. App. 214, 220 (2000). To rebut this presumption, there must be clear evidence to the contrary. Ashely, 2 Vet. App. at 309. Evidence of non-receipt by a veteran, standing alone, is insufficient to rebut this presumption. Id. Given the affirmative evidence that the Veteran was a resident of New Orleans when his statement of the case was issued, that the week that he was to receive this SOC he was forced to evacuate, and that he submitted a statement inquiring about his claim within a reasonable amount of time after his relocation, the Board finds that the presumption is rebutted and that he did not receive notice that a SOC had been issued. Further, the Veteran’s failure to respond to the extension of time given in June 2006 can be explained by his need to relocate again and not updating his address. Therefore, the Board finds that the March 2006 statement serves as his Notice of Appeal to the Board. Further, given that the Veteran appealed the July 2003 rating decision, that decision did not become final. See 38 U.S.C. § 7104; See also Buie v Shinseki, 24 Vet. App. 242, 251-52 (2011). The Veteran was denied service connection for PTSD because he did not submit sufficient information to verify his in-service stressors, even though he had a diagnosis of PTSD at the time. The Board notes that the Veteran later submitted information that was sufficient to corroborate his stressors and that his stressors were related to fear of hostile military activity under 38 C.F.R. § 3.304(f)(3). Under “75 FR 39843—Stressor Determinations for PTSD,” the provisions of 3.304(f)(3) will apply to any claim that “was appealed to the Board before July 12, 2010, but has not been decided by the Board as of that date.” As the Veteran’s claim was appealed to the Board prior to July 12, 2010, he is eligible to have his PTSD claim considered under 3.304(f)(3). Thus, the Board finds that the preponderance of the evidence is for granting the Veteran’s claim of entitlement to an earlier effective date than December 10, 2010, for a grant of service connection for PTSD. The July 2003 rating decision is non-final and the Veteran is otherwise entitled to have his claim considered back to that date. Given that the Veteran had a diagnosis of PTSD at the time of his May 9, 2003 application and his stressors were later corroborated, the criteria for an earlier effective date than December 10, 2010 for the service connection of PTSD have been met and May 9, 2003 is the proper effective date for any evaluation of PTSD. TDIU 5. Entitlement to a TDIU The Veteran has submitted evidence in which he contends that his PTSD condition prevents him from working. See Rice v. Shinseki, 22 Vet. App. 447, 456 (2009) (holding that a claim for a TDIU is part of an increased rating claim when expressly raised by the Veteran or reasonably raised by the record). Total (100 percent) disability ratings will be assigned “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” 38 C.F.R. § 3.340(a). A total disability rating may be assigned under a DC where the DC associated with a disability prescribes a 100 percent disability rating. Additionally, regulations provide other methods by which TDIU may be awarded. TDIU may be assigned to a veteran who is “unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities,” provided that he has received a disability rating of 60 percent or greater. 38 C.F.R. § 4.16(a). The initial rating of the Veteran’s PTSD is currently on appeal and an evaluation from May 9, 2003 forward is pending. But from at least December 10, 2010, the Veteran’s PTSD is rated at 60 percent or greater (70 percent) and therefore he meets the statutory criteria for a TDIU. 38 C.F.R. § 4.16(a). In support of his claim for a TDIU, the Veteran submitted a vocational opinion from S.B., Ph.D, dated October 2015. This opinion indicates that the Veteran’s service-connected PTSD disability substantially impairs his ability to sustain work, with reduced reliability and productivity. Thus, the Veteran meets the statutory criteria for a TDIU because his PTSD is evaluated at 70 percent disabling. Further, as a result of his disability, he is prevented from obtaining and maintaining substantially gainful employment consistent with his educational and vocational experience. Therefore, he is entitled to a TDIU. REMANDED ISSUES 1. Initial evaluation of service-connected PTSD As explained above, the Veteran is entitled to an earlier effective date for his claim of PTSD. Through a rating decision dated April 2015, the Veteran was given an “initial” evaluation of 70 percent from December 10, 2010. The Veteran contends that he should be entitled to a rating greater than 70 percent. However, the analysis of an initial evaluation should now properly be conducted back to May 9, 2003. In reviewing the Veteran’s file, the Board notes that there are no medical records between June 2003 and June 2010. In connection with December 2010 application, the Veteran was asked to provide information about the location of medical records to support his claim. In January 2011, the Veteran reported that he went to the VAMC in Shreveport and Atlanta for PTSD treatment. These records do not appear in the file. Further, in a VA examination in August 2011, the VA examiner noted that the Veteran was treated at Southeast Louisiana Veteran’s Health Care system between May 1998 and May 2009, yet these records too are not in the file. Therefore, on remand, the Veteran should identify the location of all outstanding medical records and an attempt to obtain these records should be undertaken. Further, given that the Veteran contests his current rating and that he has submitted evidence suggesting that he should be evaluated at 100 percent disabling, the evidence suggests a worsening has occurred and therefore the Veteran should be afforded a subsequent VA examination. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records, to include from VAMC Shreveport, VAMC Atlanta, and Southeast Louisiana Veteran’s Health Care, for the period from May 2003 to the present. 2. Schedule the Veteran for an examination to determine the current severity of his service-connected PTSD. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD I. M. Hitchcock