Citation Nr: 18127765 Decision Date: 08/20/18 Archive Date: 08/20/18 DOCKET NO. 15-03 513 DATE: August 20, 2018 ORDER Service connection for an acquired psychiatric disorder is granted. Service connection for Hepatitis C is denied Service connection for liver cancer is denied. FINDINGS OF FACT 1. The Veteran has active service from October 1970 to October 1973. 2. An acquired psychiatric disorder was shown in service and is causally related to service. 3. The Veteran was not diagnosed with or treated for Hepatitis C during service, was not diagnosed with Hepatitis C until many years after service, and Hepatitis C is not etiologically related to any in-service incurrence. 4. The Veteran was not diagnosed with or treated for liver cancer in service, was not diagnosed with liver cancer until many years after service, and liver cancer is not causally or etiologically related to service or any service-connected disability. CONCLUSIONS OF LAW 1. An acquired psychiatric disorder was incurred by active service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.3.03, 3.307, 3.309 (2017). 2. Hepatitis C was not incurred in or due to active service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.3.03, 3.307, 3.309 (2017). 3. Liver cancer was not incurred in or due to active service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.3.03, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Acquired Psychiatric Disorder The Veteran claims he has an acquired psychiatric disorder caused by active service. The first element of service connection – a current disability – is met. He first started seeking psychiatric treatment in 2006 and was diagnosed with depression, NOS in October 2006. His psychiatric diagnosis was confirmed in a July 2015 VA examination, where he was diagnosed with major depressive disorder (MDD) with anxious distress and panic attacks. Next, the Veteran’s service treatment records (STRs) showed one instance of treatment for psychiatric symptoms in service. Specifically, a February 1973 STR noted mild depression with lost appetite and general malaise. Although this was the extent of any treatment or diagnosis in service, the evidence is sufficient such that the second element of service connection – in-service incurrence – is met. Finally, when a veteran has a current diagnosis and was diagnosed in-service, service connection is warranted so long as the current diagnosis is for the same disability as that was noted in service. In this case, the Veteran was diagnosed with mild depression in service, but his medical records failed to note another psychiatric disability until many years after separation from service. However, the July 2015 VA examiner who diagnosed MDD found that it was likely as not that this diagnosis began during service. As such, the third element of service connection is met and the appeal is granted. Hepatitis C The Veteran claims he has Hepatitis C that was caused by active duty. He does not claim and the evidence does not show that Hepatitis C is due to a service-connected disability. Further, the disorder is not listed in 38 C.F.R. § 3.309; therefore, presumptive service connection is not warranted. Turning to the evidence, the first element of service connection – a current disability – is met, as the Veteran has been treated for Hepatitis C throughout the appeal. The earliest reported diagnosis of Hepatitis C was in 1986. VA medical records consistently confirmed the diagnosis in the year prior to his July 2011 claim for service connection. It should be noted that a June 2015 VA physician noted that a 24-week Hepatitis C antiviral therapy cleared the virus from his system. However, for the purposes of service connection, a current diagnosis is required during any point of the pendency of the claim and subsequent appeal, but need not be present for its entirety. As such, the first element of service connection is met. Next, the Veteran’s service treatment records are negative of any findings, complaints, or treatment of Hepatitis C. In a November 1972 medical note, he requested that he be checked for hepatitis as his friend had developed the disorder; however, he described no symptoms. There is no record of any test being conducted or subsequent STRs noting that he developed symptoms of hepatitis. However, Hepatitis C was not recognized prior to the late 1980s. Therefore, it can be assumed that the Veteran was concerned about Hepatitis A or Hepatitis B, which were the only strains recognized as the time. Nonetheless, as he was separated from service in 1973, the absence of in-service manifestations is not dispositive of the issue. As such, the second element of service connection is not met, but does not alone preclude his claim. To the extent the Veteran asserts a nexus between Hepatitis C and service, the medical evidence does not support such a contention. A February 2012 VA examiner found that it was less likely than not that Hepatitis C was caused by service. The examiner reasoned that the medical evidence showed a history of drug abuse, to include intravenous drug abuse, which continued for years after separation from service, and was more likely the cause of the development of Hepatitis C. Therefore, as Hepatitis C was not shown in service and the medical evidence does not support a connection to service, the appeal is denied. Liver Cancer The Veteran claims he has liver cancer that was caused by active duty service. He does not claim and the evidence does not show that liver cancer is due to a service-connected disability. He has claimed it was caused by Hepatitis C, however he is not service connected for that disability so secondary service connection is not warranted. Further, the disorder is not listed in 38 C.F.R. § 3.309 other than for radiation-exposed veterans or for veterans stationed at Camp Lejeune, neither of which apply to the Veteran; therefore, presumptive service connection is not warranted. Turning to the evidence, the evidence supports the first element of service connection – a current disability – as the Veteran was diagnosed with multifocal hepatocellular carcinoma at the time of filing. The cancerous lesions were removed in a March 2010 liver resection. While the lesions were removed, he has undergone continuous monitoring and treatment, and therefore a current disability has been shown. Next, the STRs are negative for any findings, complaints, or treatment of liver cancer. His separation examination did not contain any indication of liver cancer. As such, the second element of service connection is not met. To the extent that the Veteran asserts a nexus between liver cancer and service, the medical evidence does not support such a contention. Specifically, no medical provider has established liver cancer as related to active duty. As liver cancer was not shown in service and the medical evidence does not support a connection to service, the appeal is denied. The Board has considered the Veteran’s lay statements that sharing razor blades and frequent fights while imprisoned during service caused Hepatitis C, which subsequently caused liver cancer. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not competent to offer an opinion as to the etiology of his current disorders due to the medical complexity of the matter involved. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462. Such competent evidence has been provided by a VA examination, the medical evidence, and by service records obtained and associated with the claims file. Here, the Board attaches greater probative weight to the medical findings than to his lay statements, which have not been supported by competent medical opinions. In light of the above discussion, the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeals are denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Brendan A. Evans, Associate Counsel