Citation Nr: 20023075 Decision Date: 04/02/20 Archive Date: 04/02/20 DOCKET NO. 14-32 264 DATE: April 2, 2020 ORDER Entitlement to service connection for hepatitis C is denied. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), anxiety disorder, and major depressive disorder, is denied. FINDINGS OF FACT 1. Hepatitis C was not manifest in service and is not otherwise attributable to service. 2. An acquired psychiatric disorder, to include PTSD, anxiety disorder, and major depressive disorder, was not manifest in service and is not otherwise attributable to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hepatitis C have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2019). 2. The criteria for entitlement to service connection for an acquired psychiatric disorder, to include PTSD, anxiety disorder, and major depressive disorder, have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Navy from June 1968 to November 1969. The Veteran was scheduled for a hearing before a Veterans Law Judge in October 2017. In September 2017, the Veteran acknowledged receipt of notice of the date and place of the hearing and indicated an intent to appear, but he failed to appear without explanation. Under the applicable regulation, if an appellant fails to appear for a scheduled hearing and a request for postponement has not been received and granted, the case will be processed as though the request for a hearing had been withdrawn. 38 C.F.R. § 20.702(d) (2019). In December 2019, the Veteran stated, “I am ready to have my appointment with the Judge. I am very well ready to have this hearing, the place I live in has caused me problems and I am getting sick and tired of what is happening to me in here.” The Board does not find that the foregoing constitutes good cause for missing the previous hearing. In March 2020, the Veteran’s representative submitted a statement, but did not contend that another scheduled hearing was warranted. As such, the Board finds that it may proceed with a decision. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131 (2012). There is a one-year presumption for psychoses. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2019). To establish a right to compensation for a present disability, a Veteran must show: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); see also Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 1. Entitlement to service connection for hepatitis C The Veteran contends that his hepatitis C is due to air gun inoculations during service and/or the result of other activities during service. Service personnel records show that after recruit training, the Veteran was assigned to a shore facility in the Philippines performing maintenance on small craft. Service treatment records document single vaccinations for smallpox, yellow fever, influenza, polio, and Bicillin, as well as two immunizations for typhoid, typhus, tetanus, and diphtheria, and three immunizations for cholera. The service treatment records do not include complaints or diagnoses of hepatitis C during service, and the Veteran does not contend otherwise. In September 2005, the Veteran indicated that it was unknown how he had been infected with hepatitis C, as he was not a “drug abuser” and had not had blood transfusions. His choice of “drug” had been alcohol. The Veteran was afforded a VA general medical examination in October 2005. He reported that his hepatitis C had existed for 10 months. The Veteran experienced fatigue and had lost 20 pounds in the previous 4 months. He also had abdominal pain without distension. The Veteran had started interferon treatment in June 2005, with a good response. The examiner indicated that the risk factors for hepatitis C were unknown, but that the Veteran had denied all risks. The Veteran claimed to have been exposed to risk factors in service but was unsure as to exposure to which specific risk factors during service. A February 2011 medical record included the Veteran’s report that he was diagnosed with hepatitis C before discharge from service. “This is based on his recollection of being subjected to shots given when he was in the service.” The Veteran also reported in-service exposure to mustard gas during basic training that lasted for an indeterminate period of time. He also had air-gun injections and the recruit in front of the Veteran jumped when he got the shot and bled. The shot nozzle was not cleaned off with disinfectant. The Veteran was sure that he did not contract hepatitis C from his behavior between August 1968 and his diagnosis in 2005. He had not used IV drugs or had a blood transfusion. He had never shared a cup of coffee or razor blade and had not had sexual relations with anyone with open sores. In April 2011, the Veteran indicated that he had received shots through “multi-use jet gun injections” and that the individual in front of the Veteran in line had jumped when receiving his shots. In another April 2011 statement, the Veteran also discussed how he was exposed to mustard gas during basic training. In his February 2013 notice of disagreement, the Veteran cited an online article indicating that hepatitis C could lay dormant for more than 30 years. In March 2013, the Veteran indicated that he had been healthy until 2002, when he started getting sick and did not know why. He now believed it was due to the hepatitis C. During an August 2013 RO hearing, the Veteran acknowledged that he had two tattoos. The Veteran was scheduled for a VA examination in July 2018, but he failed to appear. Thus, the Veteran has or had hepatitis C during the appellate time period. The crucial question, therefore, is whether this disability was incurred in or is otherwise related to his service. The Board concludes that it was not. The sole evidence supporting the Veteran’s claim of contracting hepatitis C while in service is his assertions. In that regard, he certainly can attest to factual matters of which he has first-hand knowledge, such as receiving inoculations with an air gun and mustard gas exposure, and his assertions in that regard are entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). In addition, the Board recognizes that lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Given the Veteran's lack of demonstrated medical expertise, the overall low probability of contracting hepatitis C by the means claimed by the Veteran as opposed to via other means, and the complexity of linking the use of air gun inoculations and/or due to mustard gas exposure, the Board concludes that in this case his statements regarding any such link between the in-service experiences and contracting hepatitis C to be of no probative weight. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). Further, the Veteran’s contentions of transmission of the Hepatitis C virus by air gun immunizations is not supported by any evidence of record and warrant’s low probative weight. The mental health counselor has a master’s level degree in counseling and is not competent to provide an opinion on the cause of hepatitis including from the Veteran’s description of air gun injections. From the Veteran’s description of one event, it is not shown that he had intramuscular contact with any blood products such as to transmit the virus. Regarding exposure to mustard gas, this report warrants very low weight as it is very unlikely that Navy recruits were used to test a chemical warfare agent. More likely, the training event may have used CS or tear gas to demonstrate under controlled supervision the techniques needed to properly don firefighting masks and the consequences of not doing it properly. Neither report of exposure is credible. Further, in addition to tattoos, the Veteran has been incarcerated on multiple occasions which is a risk factor. In July 2018, the Board remanded the claim in part to obtain a medical examination and opinion on the origin of his hepatitis infection. As noted, the Veteran was scheduled for a VA examination, but failed to appear and has not explained why he missed the examination or expressed a willingness to appear for a future examination. Therefore, the Board must decide the claim on the evidence of record. In summary, the Board concludes that the preponderance of the evidence is against the claim for service connection, and the benefit of the doubt rule enunciated in 38 U.S.C. § 5107(b) is not for application. There is not an approximate balance of evidence. See 38 U.S.C. § 5107(b); see generally Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). 2. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, anxiety disorder, and major depressive disorder The Veteran contends that he has an acquired psychiatric disorder due to one or more claimed incidents during service. Service connection for PTSD specifically requires medical evidence establishing a diagnosis of the disability, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. See 38 C.F.R. § 3.304(f) (2019). If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. See 38 C.F.R. § 3.304(f)(1); see also 38 U.S.C. § 1154(b) (2012). Similarly, if a stressor claimed by a veteran is related to the Veteran’s fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran’s symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran’s service, the Veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. See 38 C.F.R. § 3.304(f)(3). Otherwise, the law requires verification of a claimed stressor. Where a determination is made that the Veteran did not “engage in combat with the enemy,” or the claimed stressor is unrelated to combat, the Veteran’s lay testimony alone will not be enough to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must include service records or other credible evidence that supports and does not contradict the Veteran’s testimony. Doran v. Brown, 6 Vet. App. 283, 289 (1994). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. See Moreau, 9 Vet. App. at 395-396; Cohen v. Brown, 10 Vet. App. 128, 42 (1997). The service treatment records do not include complaints or diagnoses of an acquired psychiatric disorder during service and the Veteran does not contend otherwise. VA treatment records from 2005 include complaints of and treatment for anxiety and depression. Diagnoses include anxiety disorder and mood disorder. In March 2005, a PTSD screen was negative. In September 2005, the Veteran’s depression was noted to be secondary to his hepatitis C treatment. In October 2005 the Veteran was afforded a VA contract mental health examination. Following examination, the examiner diagnosed agoraphobia without history of panic disorder, alcohol dependence in full remission, and cannabis dependence in full (early) remission. The Veteran also had an Axis II diagnosis of antisocial personality disorder. The agoraphobia symptoms began in 2003 after being released from prison. His alcohol used began at age 19 and increased rapidly. The Veteran abused alcohol for 23 years until age 42. A September 2007 PTSD screen was negative. In September 2009, the Veteran sought initial treatment for his mental health problems. The Veteran’s mental health problems were due to a combination of “finances, living situations, external factors” and also reported a traumatic childhood living with alcoholic parents. He did not meet the criteria for PTSD. The assessment was alcohol dependence, nicotine dependence, and dysthymia. In November 2010, the Veteran requested referral to PTSD classes because he was filing a claim for PTSD and he stated the “goal for going into PTSD classes is to bolster his pursuit of PTSD claim.” In the assessment, the treatment provider stated, “I have a[] very high concern that [the Veteran] is pursuing PTSD treatment purely for the service connection. It is interesting however, that at this point he appears to genuinely believe he had PTSD, though he does not appear to have even suffered an index trauma. This may in part be due to feedback he has received from advocates and health care providers in the community… My overall clinical impression while interacting with him is also not congruent with presentations of vets or civilians with PTSD.” In his November 2010 claim, the Veteran alleged PTSD onset in November 1968. A February 2011 mental health assessment did not include any in-service reported stressors or problems other than the events that the Veteran alleges resulted in his contamination with hepatitis C. The examiner diagnosed PTSD and depressive disorder not otherwise specified. The examiner concluded, “It is recommended that [the Veteran] be service connected for PTSD, being sprayed with Mustard Gas during basic training and for contracting Hepatitis C as a result of receiving immunizations in service by means of a multi-use jet gun injector.” In an April 2011 statement, the Veteran alleged he had PTSD due to a November 1968 in-service incident where he was sitting at a bar when a fight broke out between a fellow service member and the “Philippinese Rebels.” He was “bumbled into” which resulted in a broken glass and a cut on his right middle finger. In another April 2011 statement, the Veteran also discussed how he was exposed to mustard gas during basic training. In a May 2011 statement, the Veteran indicated that his “PTSD was caused by going through the gas chamber in basic training and asked to take off our gas masks to feel the effect or the gas and what it can do to a human, also by having that gas mask on covering my face it was hard for me to breath[e] in it, and when I had to take it off I was coughing and had runny eyes, then when I was stationed overseas, there was an incident in a bar to which I could not understand for we were in Vietnam fighting and the rebels in the Philippines wanted to cause trouble with the soldiers that were in the bar.” In an October 2011 statement, the Veteran indicated that due to his PTSD, “I could not adapt to society upon being released from military duty.” He claimed his “PTSD began in the service under boats to clean them chipping the paint off.” In addition, he again discussed the in-service bar fight in the Philippines. In October 2011, the Veteran was assessed with major depression. The Veteran reported that he thought he might have PTSD from a mustard gas exposure during boot camp. A November 2011 record indicated that the Veteran had possible PTSD associated with mustard gas exposure during service. In a September 2012 statement, the Veteran reported that he had developed PTSD “in the service because of how this country disrespected the Veterans in and during the Vietnam War.” He claimed his depression was due to “coming back to this country in 1969.” The anxiety was from health concerns, such as liver cancer. In March 2013, the Veteran reported an in-service stressor from lying on the ground and chipping paint from a landing craft placed on wooden blocks. One boat had fallen over after being placed on the wood blocks, “so the fear of that happening was always there for if one of those blocks [fell it] would squash a person.” This fear led to anxiety and “one thing le[d] to another and I started hating being around people who were against Vets, and family, so I went on a crime spree as many other Vietnam era Vets did by drinking and smoking weed.” In October 2015, the Veteran discussed an incident where he heard “a crash” while working underneath a ship and that while no one was hurt thereafter the Veteran “couldn’t go underneath a ship.” The Veteran denied nightmares associated with the incident. The treatment provider indicated, “Unclear whether symptoms and event reported by Veteran meet criteria for PTSD at this time, and Veteran did not appear to meet criteria for PTSD diagnosis when previously assessed in 10/8/14 and 1/28/13 Mental Health Triage Assessments.” In January 2016, the treatment provider noted that the Veteran did not have a diagnosis of PTSD, but a screen at that time was positive and the Veteran requested referral for PTSD evaluation. In June 2016, the treatment provider indicated that the Veteran’s claimed stressor had not been corroborated and that a diagnosis of PTSD would not be considered until confirmation of the stressor. In July 2016, it was noted that the Veteran did not have a diagnosis of PTSD and the Veteran agreed and stated that he might pursue a claim for recurrent depression instead. In October 2017, the record indicated that the Veteran was being treated for PTSD and schizoaffective disorder. In July 2018, the Board remanded the claim to obtain an examination and opinion on the origin of his psychiatric disorders. The Veteran was scheduled for a VA examination in July 2018, but he failed to appear. Therefore, the Board must decide the claim on the evidence of record. A September 2019 PTSD screen was negative; however, the Veteran continued to attend VA group therapy classes for PTSD. Initially, as to the Veteran’s claimed PTSD, in order to warrant service connection, the threshold requirement is competent medical evidence of the existence of the claimed disability at some point during a veteran's appeal. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (requirement that a current disability be present is satisfied “when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim...even though the disability resolves prior to the Secretary’s adjudication of the claim”); Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). The medical professionals in this case have almost universally found that the Veteran does not meet the criteria for a diagnosis of PTSD. The Board acknowledges the February 2011 private diagnosis of PTSD by a counselor; however, that diagnosis was based in part on the Veteran’s reports of in-service infection with hepatitis C. As discussed above, the Board finds that the preponderance of the evidence is against such a finding. As such, the PTSD diagnosis was based on an inaccurate factual premise, and the Board finds it of significantly less probative value than the other medical evidence that has found the Veteran does not meet the criteria for a diagnosis of PTSD. As noted above, the Veteran failed to appear for his scheduled VA examination to clarify his diagnosis and, in the absence of the results of that examination, the Board must base its decision solely on the other evidence of record. As to the Veteran’s other diagnosed acquired psychiatric disorders, the sole evidence connecting such disabilities to his service are the Veteran’s representations and a counselor repetition of these contentions with findings based solely on the contentions warranting very low probative weight. In that regard, the Veteran can attest to factual matters of which he has first-hand knowledge, such as experiencing anxiety and depression, and his assertions in that regard are entitled to some probative weight. In addition, the Board recognizes that lay persons are competent to provide opinions on some medical issues. Given the Veteran’s lack of demonstrated medical expertise, the post-service stressors, and the complexity of linking particular psychiatric symptoms to a diagnosed psychiatric disorder and linking that disorder to incidents occurring in service, however, the Board concludes that in this case his statements regarding any such link between the in-service experiences and a current acquired psychiatric disorder are significantly less probative than the conclusions of the medical professionals of record. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). In summary, the Board concludes that the preponderance of the evidence is against the claim for service connection, and the benefit of the doubt rule enunciated in 38 U.S.C. § 5107(b) is not for application. There is not an approximate balance of evidence. See 38 U.S.C. § 5107(b) (2012); see generally Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. J. Houbeck, 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.