Citation Nr: 20081411 Decision Date: 12/29/20 Archive Date: 12/29/20 DOCKET NO. 15-17 333 DATE: December 29, 2020 ORDER Entitlement to service connection for hepatitis C on a direct basis is denied. REMANDED Entitlement to service connection for hepatitis C as secondary to service-connected disabilities, is remanded. Entitlement to service connection for a skin disorder (claimed as rash on buttocks, legs, chest, head, and feet), to include as due to herbicide exposure, is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include depression and a mood disorder, is remanded. FINDING OF FACT The Veteran’s hepatitis C is not related to an in-service injury, event, or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for hepatitis C on a direct basis have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Army from January 1969 to January 1971. These issues come before the Board of Veterans’ Appeals (Board) on appeal from a February 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The transcript is of record. The issue of entitlement to service connection for depression has been recharacterized as entitlement to service connection for an acquired psychiatric disorder, to include depression and a mood disorder, in accordance with Clemons v. Shinseki, 23 Vet. App. 1 (2009). This claim was recently remanded in July 2019 for additional development, including to afford the Veteran a new VA examination, which was accomplished in August 2019. A review of the record shows substantial compliance with the Board’s prior remand regarding hepatitis C on a direct basis; therefore, additional development is not needed. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection The Veteran contends that his hepatitis C was incurred during service as a result of sharing needles, sharing razors, promiscuous sex, accidental exposure to blood from medics, and as the result of intravenous (IV) drug use during service. His claim for compensation was received by VA in December 2010. A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). The Board notes that the Veteran currently has a diagnosis with hepatitis C. An August 2019 VA examination report noted a diagnosis of hepatitis C. In addition, the Veteran contends that he was exposed to hepatitis C in-service due to sharing needles, sharing razors, promiscuous sex, accidental exposure to blood from medics, and as the result of intravenous (IV) drug use. Accordingly, the two Shedden criteria are met and are not in dispute. The remaining issue, therefore, is whether there is a causal connection between the hepatitis C and military service. The Board finds a preponderance of the evidence to be against the Veteran. As such, his claim for service connection on a direct basis is denied. A review of the service treatment records (STRs) note no complaints or treatment for hepatitis C. Clinical examination was noted on entrance and separation. Of note, the Veteran underwent drug addiction treatment in November 1970. A review of the post-service VA treatment records note complaints and treatment for hepatitis C. None of the Veteran’s treating physicians have given a positive opinion that the hepatitis C was due to military service. The Veteran underwent a VA examination in December 2011. He was diagnosed with hepatitis C. The examiner noted the Veteran’s reports of sharing razors, sharing needles, and engaged in in-service drug use. The examiner then gave a negative opinion that the hepatitis C was due to military service. The examiner noted that the Veteran reported experiencing hepatitis C symptoms in 1994, many years after discharge. In addition, the examiner noted that the Veteran had multiple risk factors for developing hepatitis C, including after being discharged from service. No other opinions or rationale were provided. The Veteran underwent a second VA examination in August 2019. He was diagnosed with hepatitis C. The examiner noted that the Veteran was diagnosed around 1994, but that liver function is within normal limits and that he recently had a non-detectable viral load. The examiner also noted that the Veteran had a history of alcohol abuse and IV drug use “in the 1970s.” The examiner then gave a negative opinion that the hepatitis C was the result of military service. The examiner noted that the hepatitis C was likely caused by IV drug use, since it was the highest risk factor for such condition. In addition, the examiner noted that hepatitis C was less likely to be caused by things like shaving. Furthermore, the examiner noted that he did not find evidence of accidental exposure to others blood in the STRs, other than IV drug abuse. Finally, the examiner noted that Hepatitis C was an infection which cannot be not aggravated by other conditions not someone either has the infection or they do not. The Board finds the VA opinion persuasive. The examiner noted the Veteran’s self-reported medical history, indicated a review of the claims file, and based this opinion on the Veteran’s interview, the claims file review, and the VA examination results. The Board finds the opinion is based on an accurate factual background. While there is an allegation that the Veteran might have been exposed to blood from medics or other health care professionals, no further details of any possible such exposure were provided. The Veteran did not participate in combat. The Board finds that, absent some other supporting evidence, it cannot find that the Veteran was exposed to blood via health care professionals. As such, the Board finds the opinion of probative value. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician’s statement is dependent, in part, upon the extent to which it reflects clinical data or other rationale to support the opinion). Furthermore, the August 2019 VA opinion is the only medical opinion of record that addresses the issue of medical nexus on a direct basis. In light of the negative nexus opinion and lack of positive opinion to contradict the negative evidence, there is simply no basis for a grant of service connection for the Veteran’s hepatitis C on a direct basis. The examiner found that IV drug use was of the highest risk factors for hepatitis C as reported by the Veteran. With regard to the in-service IV drug use, disability resulting from substance abuse generally cannot be service connected since it is considered willful misconduct. 38 U.S.C. § 105 (a); 38 C.F.R. §§ 3.1 (m), 3.303(c)(3) and (d); VAOPGCPREC 7-99 (June 9, 1999); VAOPGCPREC 2-98 (Feb. 10, 1998). In adjudicating this claim, the competence and credibility of lay statements must be considered by the Board. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Veteran contends that his hepatitis C is the direct result of his military service. He testified that he engaged in risky behavior during his Vietnam service which led to his hepatitis C diagnosis, including drug and promiscuous sex. While the Veteran may be credible to describe the particular symptoms which he experiences, determining the exact nature and diagnosis of hepatitis C requires specialized testing and medical knowledge or training which the Veteran is not shown to have. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Therefore, he cannot provide an opinion as to etiology in such cases. Since a preponderance of the evidence weights against the Veteran, the Veteran is not entitled to the benefit of the doubt. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed Cir. 2001). As such, his claim of entitlement to service connection on a direct basis is denied. REASONS FOR REMAND 1. Entitlement to service connection for hepatitis C, as secondary to service-connected disabilities. The Veteran contends that his hepatitis C was incurred during service as a result of sharing needles, sharing razors, promiscuous sex, accidental exposure to blood from medics, and as the result of intravenous (IV) drug use due to psychiatric problems during service. With regard to the IV drug use, disability resulting from substance abuse generally cannot be service connected since it is willful misconduct. 38 U.S.C. § 105 (a); 38 C.F.R. §§ 3.1 (m), 3.303(c)(3) and (d); VAOPGCPREC 7-99 (June 9, 1999); VAOPGCPREC 2-98 (Feb. 10, 1998). An exception to this general rule states that service connection may be awarded for an alcohol/drug abuse disability acquired as secondary to, or as a symptom of, a non-willful misconduct, service-connected disability. Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). The Veteran contends that his IV drug use that resulted in him acquiring hepatitis C was due to psychiatric problems in-service. As such, the Veteran’s hepatitis C claim is inextricable intertwined with the psychiatric claim being remanded below. As such, the Board finds that the Veteran’s hepatitis C claim must be remanded as well. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (issues are inextricably intertwined when a decision on one issue would have a significant impact on another issue). 2. Entitlement to service connection for a skin disorder (claimed as rash on buttocks, legs, chest, head, and feet), to include as due to herbicide exposure. The Veteran contends that he currently experiences a skin disorder that is the result of active duty service, specifically herbicide exposure in Vietnam. The Board notes the Veteran’s Vietnam service; therefore, herbicide exposure is presumed. This matter was remanded by the Board for additional development, namely for a VA examination to be conducted to determine the etiology of any skin disorder found on examination. The Veteran underwent a VA examination in August 2019. The examiner found no evidence of a current skin condition. The examiner also found no evidence of a skin condition being treated in-service. In addition, the examiner found no evidence that the Veteran had porphyria cutanea tarda or chloracne to warrant presumptive service connection. The examiner noted the following skin conditions diagnosed after service: tinea corporis, tinea pedis, and onychomycosis (tinea unguium). The examiner notes that onychomycosis was the only active condition at this time, with an aggressive treatment that could be associated with liver side effects and that may not be used if a patient has hepatitis C. However, the examiner noted that he did not think that this treatment was considered and that the Veteran was not service-connected for hepatitis C. The examiner then gave a negative opinion that he currently has a skin disorder that was the result of military service. The examiner noted that there was no evidence of any diagnosed skin condition in-service, no evidence of any skin condition that can be caused by herbicide exposure, and that there was no evidence of any skin condition which was aggravated by a service-connected disability. No other opinions or rationale were provided. The Board finds the opinion is inadequate for adjudicative purposes. The examiner based his opinion on a lack of medical evidence. Lack of evidence cannot be treated as substantive negative evidence. In other words, reliance on the lack of medical evidence, especially without consideration of lay statements, is an inadequate rationale. Furthermore, the examiner based his opinion on an inaccurate factual background. A review of the post-service private treatment records noted continued complaints of a rash for over 20 years. Of note, the Veteran submitted a December 2017 private medical opinion that the Veteran’s rash (Chloracne) was at least as likely as not due to in-service herbicide exposure. The Board notes that the examiner failed to consider this evidence in rendering his opinion. Finally, the examiner failed to render adequate opinions on aggravation. Based on the failure of the examiner to render adequate rationale and address all the evidence of record, the Board must remand this matter for an addendum VA medical opinion. 3. Entitlement to an acquired psychiatric disorder, to include depression and a mood disorder. The Veteran contends that his acquired psychiatric disorder manifested during active duty service in Vietnam. He testified at his Board hearing that his depression is secondary to his skin condition. In addition, he testified that he engaged in IV drug use and promiscuous sex while stationed in Vietnam in order to deal with his psychiatric symptoms. A review of the STRs reveals that the Veteran reported sleep difficulties in March 1970 and underwent in-service drug treatment in November 1970. Furthermore, the Veteran reported experiencing soaking sweats on his separation report of medical history; however, clinical examination was normal on separation. A review of the post-service VA treatment records reveals a diagnosis/treatment for a mood disorder/insomnia in October 2010. The Board notes that this matter was remanded for additional development, namely for a VA examination to be conducted to determine the nature and etiology of any acquired psychiatric disorder(s) found on examination. The Veteran underwent a VA examination in August 2019. The examiner found no evidence of a current psychiatric diagnosis. The examiner noted the Veteran’s reports of in-service drug use, but denied seeking body bags on the side of the road or other in-service traumatic experiences. The Veteran reported feeling depressed starting in 1978 and attempted suicide as a result. The examiner noted the Veteran’s in-service sleep complaints and drug addiction/treatment. The examiner also noted that the Veteran had not engaged in any mental health treatment since 2000 and denied persistent feelings of depression, anxiety, moods, mania, panic or psychotic symptoms. The examiner then gave a negative opinion that the Veteran currently had an acquired psychiatric disorder. The examiner noted that the Veteran’s in-service sleep complaint did not constitute a sleep disorder nor any other psychiatric condition. In addition, the examiner noted that the Veteran did not meet the DSM 5 criteria for any psychiatric disorder. The examiner noted the Veteran’s history of alcohol and opioid use disorder which were in remission and a history of substance induced depression; however, there were no complaints or treatment for any mental health symptoms after 2000. The examiner also noted that was no STRs nor post service treatment records that supported the Veteran’s contention that his Vietnam service led to psychiatric problems. The examiner further noted that the Veteran denied in-service combat exposure or traumatic stressors, reported experimentation with drugs and alcohol prior to service, and endorsed drug use in-service. Regarding secondary service connection, the examiner found that there was no evidence to support any diagnosis of a psychiatric disorder due to any service-connected disability, including hepatitis C or a skin disorder. The examiner noted that the Veteran’s depression due to Interferon treatment subsided after the medication was discontinued, with no subsequent medical records detailing any mental health complaints or treatment. Finally, the examiner noted that the Veteran denied feeling fear during his Vietnam service and did not currently meet the DSM 5 criteria for posttraumatic stress disorder (PTSD). The Board finds the opinion is inadequate for adjudicative purposes. The examiner based his opinion on an inaccurate factual background, namely that the Veteran had not been diagnosed with an acquired psychiatric disorder since 2000. The post-service treatment record note a diagnosis of and treatment for a mood disorder/insomnia as recently in October 2010. The examiner failed to address or reconcile this diagnosis with her opinion. Service connection may be granted for a disorder present at any time during the appeal period. An opinion is required which addresses this evidence. Based on the failure of the examiner to render adequate rationale and address all the evidence of record, the Board must remand this matter for an addendum VA medical opinion. The matters are REMANDED for the following action: 1. Obtain updated VA and/or private treatment records to the extent possible. If such records are unavailable, the Veteran's claims file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 2. Once the above has been completed to the extent possible, obtain VA medical opinions regarding the etiology of the Veteran’s skin disorder and acquired psychiatric disorder from medical professionals with appropriate expertise. The claims file must be reviewed and a notation made in the examination report that the claims file has been reviewed. If the requested opinion cannot be rendered without a new examination, then schedule the Veteran for a VA examination (or a telehealth interview if an in-person examination is not feasible). Based on a review of the evidence of record, and a new examination if necessary, the examiners must to address the following: (a.) Identify any and all skin disorders found since the Veteran claimed service connection for a skin disorder in December 2010. (b.) For any diagnosed skin disability not presumed service connected under 38 C.F.R. § 3.309(e) (i.e., chloracne (or other acneform diseases consistent with chloracne) and porphyria cutanea tarda): Is it at least as likely as not (i.e., probability of 50 percent or greater) that the skin disorder is related to a disease, event, or injury during service? In answering this question, review and consider the lay assertions of record, to include the Veteran’s assertion that presumed herbicide exposure in Vietnam led to his skin problems. The examiner should consider and discuss the STRs. Although skin disorders other than chloracne and porphyria cutanea tarda may not be presumed service connected under 38 C.F.R. § 3.309(e), an opinion should nevertheless be provided addressing the preponderance of the evidence standard for such disorders – i.e., whether any skin disorder not listed under 38 C.F.R. § 3.309 (e) as likely as not relates to service, to include herbicides exposure in Vietnam. (c.) If the response to (b.) is negative, is it at least as likely as not that any skin disorder not listed under 38 C.F.R. § 3.309 (e) is caused by or aggravated by service-connected disabilities? The examiner must render opinions on both causation and aggravation. (d.) Identify any and all psychiatric disorders found since the Veteran claimed service connection for depression in December 2010. (e.) Is it at least as likely as not (i.e., probability of 50 percent or higher) that any diagnosed non-PTSD psychiatric disability is related to an in-service disease, event, or injury? In answering this question, review and consider the lay assertions of record that experiences in Vietnam led to psychiatric problems. The examiner should also consider and discuss the STRs, which indicate that, while stationed in Vietnam in March 1970, the Veteran was treated for sleep problems and prescribed Librium, as well as undergoing in-service drug treatment in November 1970. With regard to the Veteran’s admission that he abused drugs during service – disability resulting from drug abuse generally cannot be service connected since it is willful misconduct. See 38 U.S.C. § 105 (a); 38 C.F.R. §§ 3.1 (m), 3.303 (c)(3) and (d); VAOPGCPREC 7-99 (June 9, 1999); VAOPGCPREC 2-98 (Feb. 10, 1998). However, an exception to the general rule due to drug abuse is when the drug abuse is secondary to service-connected disability. (f.) If the response to (e.) is negative, is it at least as likely as not that any non-PTSD acquired psychiatric disability is caused or aggravated by service-connected disabilities? The examiner must render opinions on both causation and aggravation. (g.) If the Veteran is diagnosed with PTSD, is it at least as likely as not that his reported stressors in Vietnam are adequate to support the PTSD diagnosis, and that his PTSD symptoms are related to the reported stressor(s) in Vietnam? In answering this question, review the Veteran’s statements of record to include those provided during the August 2017 Board hearing. The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. “Aggravation” means any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease, and not due to the natural progress of the nonservice-connected disease. If aggravation is found, the examiner should attempt to quantify the extent of additional disability resulting from the aggravation. In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the medical professional rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran’s lay statements or rely solely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale must be provided for all opinions presented. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.T. Massey, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.