Citation Nr: 20025663 Decision Date: 04/14/20 Archive Date: 04/14/20 DOCKET NO. 18-27 697 DATE: April 14, 2020 ORDER Entitlement to service connection for hepatitis C is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. FINDING OF FACT The most probative evidence of record shows that the Veteran’s hepatitic C began in-service as a result of willful misconduct, namely illegal intravenous drug use. CONCLUSION OF LAW The criteria for service connection for hepatitis C are not met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1970 to September 1972. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Additional evidence consisting of VA treatment records was received by VA following the issuance of the May 2018 Statement of the Case issued for the appeal herein. The Veteran did not waive review by the Agency of Original Jurisdiction (AOJ) of this additional evidence. However, if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests AOJ consideration. Here, although the Veteran’s substantive appeal was filed after February 2, 2013, the Board interprets such exception as applying only to evidence submitted by the Veteran. As described above, the record does not reflect that the additional evidence was submitted by the Veteran. However, the VA treatment records submitted after the May 2018 Statement of the Case are redundant of prior evidence, as they merely show continuing VA treatment for hepatitis C. Thus, there is no prejudice to the Veteran in proceeding with appellate review. As the Veteran’s claim of entitlement to service connection for PTSD is being remanded for additional development, the RO will have the opportunity to review any evidence received by VA following the May 2018 Statement of the case, therefore, likewise there is no prejudice to the Veteran. The medical evidence of record includes diagnoses of major depressive disorder, panic disorder with agoraphobia, alcohol dependence in remission, polysubstance dependence in remission, PTSD, insomnia, substance induced mood disorder, personality disorder NOS, and antisocial personality disorder. For psychiatric disabilities, a claim “cannot be a claim limited only to that diagnosis, but rather must be considered a claim for any mental disability that may reasonably be encompassed.” Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Essentially, a veteran does not file a claim to receive benefits for a particular psychiatric diagnosis that is named on a claims form, but instead makes a general claim for compensation for the difficulties posed by the mental condition. Id. Accordingly, the Board has characterized the issue on appeal, as shown on the title page. The Board notes that January 2014 and July 2014 rating decisions treated the issues as petitions to reopen the claims for entitlement to service connection for hepatitis C and PTSD. However, since the November 2009 rating decision which denied entitlement to service connection for hepatitis C and PTSD, new and relevant military personnel records were associated with the record. Except as otherwise provided, if at any time following issuance of a decision VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided a prior claim, VA will reconsider the claim. See 38 C.F.R. §§ 3.156 (c), 20.1000(b). By operation of § 3.156(c), an original claim is not just reopened, it is reconsidered and serves as the date of the claim and the earliest date for which benefits may be granted. Stowers v. Shinseki, 26 Vet. App. 550, 554 (2014). Accordingly, the Board considers the issues of entitlement to service connection for hepatitis C and service connection for an acquired psychiatric disorder, to include PTSD, to be original claims. Thus, the Veteran’s service connection claims are being reconsidered de novo on the merits and new and material evidence analysis is not necessary. See 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(c). 1. Entitlement to service connection for hepatitis C Service Connection Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection on a direct incurrence basis, the Veteran must show: (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 or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for disability that is proximately due to, or aggravated beyond natural progression by, service-connected disease or injury. 38 C.F.R. § 3.310. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). The law and regulations provide that no compensation shall be paid if a disability is the result of the veteran’s own willful misconduct or, for claims filed after October 31, 1990, is the result of his or her abuse of alcohol or drugs. See 38 U.S.C. §§ 105, 1110, 1131; 38 C.F.R. § 3.301. Willful misconduct is defined as an act involving conscious wrongdoing or known prohibited action. It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. 38 C.F.R. § 3.1 (n). The Veteran has asserted that he was exposed to the blood of fellow soldiers he was assisting and thereby contracted hepatitis C. He did not report any other risk factors. See Statement in Support of Claim, received February 2014. Risk factors for hepatitis C include intravenous drug use, blood transfusions before 1992, hemodialysis, intranasal cocaine, high-risk sexual activity, accidental exposure while a health care worker, and various kinds of percutaneous exposure such as tattoos, body piercing, acupuncture with non-sterile needles, and shared toothbrushes or razor blades. VA Adjudication Procedures Manual M21-1 (M21-1), Part III.iv.4.H.2.a (January 11, 2018). The Veteran’s service treatment records shows that he was hospitalized for hepatitis during his active military service, to include relapsing hepatitis. The service treatment records contain various statements from the Veteran indicating that he used intravenous drugs. One such example is contained in a June 1, 1972 treatment note where the Veteran stated that he had “shot” morphine shortly before seeking medical attention at the emergency room, and was now seeking treatment at the clinic because he felt nauseated. The Board finds the evidence of in-service intravenous drug use is abundantly clear, and therefore concludes that the probative evidence of record shows that a demonstrated risk factor for the Veteran’s hepatitis C is his in-service illegal intravenous drug use. The Veteran was ultimately administratively discharged due to his illegal drug dependency and failed attempts at rehabilitation. In an August 8, 1980 treatment note from Beth Israel Medical center, the Veteran stated that he abused intravenous drugs for ten years and that his intravenous drug use had ended a few years prior. As noted above, the Veteran served on active from July 1970 to September 1972, therefore the Board finds that the Veteran’s August 1980 statement to a medical provider regarding intravenous drug use constitutes an admission that he used intravenous illegal drugs in-service. The Board notes that a medical examination or medical opinion is not necessary to decide the claim. The competent lay and medical evidence does not demonstrate any other risk factor for the Veteran’s hepatitis C is related to active service other than an in-service activity that constitutes willful misconduct, namely intravenous drug use. Therefore, a medical examination or medical opinion is not required under the duty to assist. 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006); Robinson v. Mansfield, 21 Vet. App. 545 (2008) (holding that the Board is not obligated to investigate all possible theories of entitlement, but rather, only as to those theories for which the evidence is sufficient to reach the low threshold necessary to trigger the duty to assist as contemplated by McLendon.) To the extent that the Veteran has argued that his hepatitis C is related to his in-service exposure to the blood of a wounded soldier, the Board finds that that there is no competent evidence that the Veteran was exposed to the blood of a wounded soldier, as the probative evidence of record shows that the Veteran did not serve in combat. Further, the competent evidence of record does not show that the Veteran worked in a medical capacity in-service where he would have been exposed to the blood of wounded soldiers. Finally, the etiology of hepatitis C is too complex an issue, one typically determined by persons with medical training, to lend itself to lay opinion evidence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The etiology of hepatitis C cannot be determined by a lay person without demonstrated expertise in medical matters. As the Veteran has not been shown to have the requisite medical knowledge or training, he is not deemed competent to render an opinion as to the medical etiology of hepatitis C in this case. As the preponderance of the evidence is against the claim of entitlement to service connection for hepatitis C, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disability, to include PTSD, is remanded. The Veteran had a VA examination for PTSD in December 2013. The Board finds that VA examiner did not adequately address important countervailing medical evidence. When VA undertakes to provide an exam, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). In addition, while the Veteran has had VA examinations for Mental Disorders other than PTSD, the Board cannot make a fully informed decision as to entitlement to service connection for an acquired psychiatric disability other than PTSD, because no examiner has opined whether the Veteran’s various mental health diagnoses, (other than his major depressive disorder as secondary to TBI,) are related to his active service. The Board notes that the Veteran has been variously diagnosed with personality disorder NOS, and antisocial personality disorder. Congenital and developmental defects, including personality disorders, are not considered diseases for VA compensation purposes. 38 C.F.R. § 3.303 (c). A defect of congenital, familial or hereditary origin, such as a personality disorder, by its very nature preexists military service. Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993). Therefore, the presumption of sound condition at service entrance does not attach in the case of a personality disorder. See Quirin v. Shinseki, 22 Vet. App. 390, 397 (2002); Terry v. Principi, 340 F.3d 1378, 1385-86 (Fed. Cir. 2003) (presumption of soundness does not apply to congenital defects); Morris v. Shinseki, 676 F.3d 1346, 1354-56 (Fed. Cir. 2012) (presumption of soundness is not relevant to personality disorders because these are not diseases or injuries and thus not compensable). Any psychiatric disability superimposed on a personality disorder must be identified, and an opinion obtained as to whether it is etiologically related to service. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA psychiatric examination to determine the nature and likely etiology of each acquired psychiatric disorder demonstrated during the appeal period or in proximity to the claim, even if currently resolved, to include any psychiatric disability superimposed on a personality disorder. The record and a copy of this Remand must be made available to and reviewed by the examiner. All indicated tests and studies must be accomplished. All clinical findings must be reported in detail. The AOJ must provide the examiner with a summary of any verified in-service stressors, and the examiner must be instructed that only these events may be considered for the purpose of determining whether exposure to an in-service stressor has resulted in PTSD, or any other psychiatric disability, to include any psychiatric disability superimposed on a personality disorder. The examiner should be asked to address the following: a.) Identify all psychiatric disorders demonstrated during the appeal period or in proximity to the claim, even if currently resolved, to include any psychiatric disability superimposed on a personality disorder. If PTSD, major depressive disorder (other than as secondary to TBI), panic disorder with agoraphobia, alcohol dependence in remission, polysubstance dependence in remission, insomnia, substance induced mood disorder, is/are not diagnosed, then the examiner must provide a supporting explanation as to why such diagnosis or diagnoses is/are not appropriate. The examiner must discuss the medical records diagnosing major depressive disorder, (other than as secondary to TBI,) panic disorder with agoraphobia, alcohol dependence in remission, polysubstance dependence in remission, PTSD, (specifically, the two medical opinions which PTSD and state that it is etiologically related to the Veteran’s active service) insomnia, and substance induced mood disorder. b.) If there is a verified stressor and the Veteran has a diagnosis of PTSD, the examiner must opine whether it is at least as likely as not (50 percent probability or greater) that the PTSD is etiologically related to a verified in-service stressor. Rationale must be provided for the opinion proffered. c.) The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any diagnosed acquired psychiatric disorder, other than PTSD, even if currently resolved, to include any psychiatric disability superimposed on a personality disorder, is causally related to the Veteran’s active service, to include any verified stressor. Rationale must be provided for the opinion proffered. 2. After completion of the above, review the expanded record, including the evidence entered since the most recent supplemental statement of the case, and determine whether service connection for an acquired psychiatric disability, to include PTSD, may be granted. If the benefit sought remains denied, furnish the Veteran with a supplemental statement of the case. The appropriate period should be allowed for response before the appeal is returned to the Board. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Susan E. Leary, Associate Attorney 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.