Citation Nr: 21003096 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 17-01 552 DATE: January 19, 2021 ORDER Entitlement to service connection for an acquired psychiatric condition to include posttraumatic stress disorder (PTSD) is denied. Entitlement to service connection for hepatitis C is denied. Entitlement to service connection for cirrhosis of the liver is denied. FINDINGS OF FACT 1. The Veteran’s January 1977 entrance examination did not diagnose any psychiatric disorder and the record does not contain clear and unmistakable evidence that demonstrates that an acquired psychiatric disorder including PTSD existed prior to service. 2. The preponderance of the evidence shows that an acquired psychiatric disorder including PTSD, hepatitis C, and cirrhosis of the liver were not present in service or until many years thereafter, they are not related to service or to an incident of service origin, and hepatitis C and cirrhosis of the liver are not caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric condition to include PTSD, hepatitis C, and cirrhosis of the liver have not been met. 38 U.S.C. §§ 1101, 1111, 1112, 1113, 1131, 1153, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty with the United States Army from January 1977 to June 1978. In August 2018 the Board of Veterans’ Appeal (Board) remanded the appeal for further development. In an August 2019 decision the undersigned, among other things, denied service connection for an acquired psychiatric disorder including PTSD, hepatitis C, and cirrhosis of the liver. The Veteran appealed the August 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a subsequent August 2020 order, which incorporated the parties of Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the August 2019 Board decision to the extent that it denied service connection for an acquired psychiatric disorder including PTSD, hepatitis C, and cirrhosis of the liver. Initially, the Board notes that additional evidence was added to the claims file since the regional office (RO) issued the March 2019 supplemental statement of the case (SSOC). However, the Board finds that this evidence is duplicative of evidence found in the record at the time the RO issued the March 2019 SSOC. Therefore, the Board finds that the evidence is not pertinent and a Remand for RO review is not required. See 38 C.F.R. § 19.31 (a SSOC will be furnished to the veteran when additional pertinent evidence is received after a statement of the case has been issued). Next, the Board notes that it has characterized the claim of service connection for an acquired psychiatric disorder to include all psychiatric disorders including PTSD because the record shows the Veteran has a number of psychiatric disorders. See Clemons v. Shinseki, 23 Vet. App. 1, 5(2009). Post-Remand Compliance The Board finds that the post-Remand development substantially complied with the August 2018 Remand because the agency of original jurisdiction (AOJ) associated with the record the Veteran’s records with the Social Security Administration. Additionally, the Board finds that the AOJ complied with the remand because it requested in writing that the Veteran provide VA a more detailed statement as to the events surrounding his military sexual assault stressors. The Service Connection Claims The Veteran and his representative in writings to VA claim, in substance, that the acquired psychiatric disorder including PTSD either pre-existed military service and was aggravated by his service or started on active duty and continued to the current time. As to the hepatitis C and cirrhosis of the liver, it is claimed that they are due to his acquired psychiatric disorders. As to the acquired psychiatric disorders, the Veteran specifically contends that a staff sergeant and/or two fellow servicemembers picked him up and solicited him for sexual favors. As to the hepatitis C and cirrhosis of the liver, the Veteran alleges that he self-medicated with drugs and alcohol following the incident that caused his acquired psychiatric disorders. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including a psychosis, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this regard, in order to establish service connection for the claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Regulations also provide that a grant of service connection for PTSD requires the following: (i) if the evidence establishes a diagnosis of PTSD during service and the claimed stressor is related to that service, 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; (ii) medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125(a); (iii) medical evidence establishing a link between current symptoms and an in-service stressor; and (iv) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). Effective July 13, 2010, if a stressor claimed by a veteran is related to that 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 a 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 that veteran’s service, a veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. “[F]ear of hostile military or terrorist activity” means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran’s response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. See 75 Fed. Reg. 39,843 (Jul. 13, 2010) (codified at 38 C.F.R. § 3.304(f)(3)). Service connection may also be established on a secondary basis for a disability proximately due to or aggravated by a service-connected disease or injury. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). To establish secondary service connection, a Veteran must show: (1) the existence of a present disability; (2) the existence of a service-connected disability; and (3) a causal relationship between the present disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Ward v. Wilkie, 31 Vet. App. 233 (2019). A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). If a pre-existing disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder. In that case 38 U.S.C. § 1153 applies and the burden falls on the veteran to establish aggravation. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If the presumption of aggravation under 38 U.S.C. § 1153 arises, the burden shifts to the government to show a lack of aggravation by establishing “that the increase in disability is due to the natural progress of the disease.” 38 U.S.C. § 1153; see also 38 C.F.R. § 3.306; Jensen, 19 F.3d at 1417. A pre-existing disease or injury will be found to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a). Evidence of a veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. In this regard, a temporary or intermittent flare-up of a preexisting disease does not constitute aggravation. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991); Green v. Derwinski, 1 Vet. App. 320, 323 (1991). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). The requirement of a current disability 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.” See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The concerns raised by the JMPR and service connection for any acquired psychiatric disorder including PTSD under 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b) Initially, the Board notes that the JMPR vacated and remanded the August 2019 decision that denied service connection for an acquired psychiatric disorder including PTSD because the Board did not discuss the presumption of soundness in light of the February 2014 examiner’s conclusion that “the onset of [Appellant’s] depression was during childhood.” In this regard, it would appear that such an event would only provide more evidence against the claim that it was the Veteran’s service that has caused the Veteran’s current disability. In any event, the Board will address this concern. A detailed review of this history of this case has been undertaken: The Board notes that at the time of the Veteran’s January 1977 entrance examination he specifically notified the examiner that his medical history did not include depression and nervous trouble. Moreover, on examination, it was opined that his psychiatric examination was normal. Therefore, because none of the Veteran’s acquired psychiatric disorders including PTSD were “noted” on his entrance onto active duty, the Board finds that presumption of soundness attaches to this claim unless there is clear and unmistakable evidence of any of the acquired psychiatric disorders preexisted military service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). As to whether there is clear and unmistakable evidence of an acquired psychiatric disorder including PTSD preexisted military service, as noted in the JMPR, the February 2014 VA examiner opined that that “the onset of [Appellant’s] depression was during childhood.” On the other hand, and as noted above, at the time of the Veteran’s January 1977 entrance examination he specifically notified the examiner that his medical history did not include depression and nervous trouble and on examination it was opined that his psychiatric examination was normal. Moreover, the Board finds the January 1977 entrance examiner’s opinion that the Veteran did not have a psychiatric disorder upon his entry onto active duty more probative than the February 2014 VA examiner’s opinion that his psychiatric disorder started in childhood (i.e., pre-existed military service). The Board has reached this conclusion because the January 1977 entrance examination is consistent with what the appellant told the examiner (i.e., he did not have a history of depression and nervous trouble) and is contemporaneous with his entry onto active duty. See Owens, supra; Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) (“the probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators...”). This finding does not suggest that the pre-service childhood assault did not occur, simply that when the Veteran entered service he did not have, for example, PTSD, or depression at that time. Next, the Board notes that a review of the record on appeal does not reveal any medical evidence documenting the Veteran’s pre-active duty complaints, diagnoses, or treatment for any acquired psychiatric disorder including PTSD. Therefore, the Board also finds that the February 2014 examiner’s opinion lacks probative value because it is not supported by any clinical evidence including pre-service medical records and because it appears to be based on an inaccurate medical history provided by the claimant of what happened almost 40 years earlier. See Black v. Brown, 5 Vet. App. 177, 180 (1995) (holding that a medical opinion is inadequate when it is unsupported by clinical evidence); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). Given the above record which shows that the most probative evidence of record is the January 1977 entrance examiner’s opinion that the Veteran did not have a psychiatric disorder upon his entry onto active duty, the Board finds that there is no clear and unmistakable evidence that the appellant’s acquired psychiatric disorders including PTSD preexisted military service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Accordingly, the Board finds that presumption of soundness attaches to this claim. Id. b. Service connection under 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304(f) 3.310. The remaining question before the Board is whether an acquired psychiatric disorder including PTSD as well as hepatitis C and cirrhosis of the liver are due the Veteran’s military service as well as whether hepatitis C and cirrhosis of the liver are due to a service connected disability. 38 U.S.C. § 1101, 1112, 1113, 1131; 38 C.F.R. §§ 3.303, 3.304(f), 3.307, 3.309, 3.310. In this regard, the Board notes that the post-service record shows the Veteran being diagnosed with depression, hepatitis C, and cirrhosis of the liver. See, e.g., VA treatment records dated in November 1992, April 1998, January 2003, February 2003, and July 2012; University of Iowa Hospital records dated in October 2012; VA examinations dated in February 2014. As to PTSD, and as noted by the JMPR, while the February 2014 VA examiner opined that the Veteran did not meet the criteria for the diagnosis of PTSD, the subsequent treatment records show him being diagnosed with PTSD. See, e.g., VA medical records dated in February 2016, June 2016, October 2016, September 2017, November 2017, May 2018, and November 2018, December 2018. Moreover, the Court has held that these diagnoses of PTSD are in accordance with governing medical principles. See Cohen v. Brown, 10 Vet. App. 128, 139-140 (1997) (mental health professionals are presumed to know the requirements applicable to their practice and to have taken them into account when diagnosing PTSD); see also Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). For the limited purpose of this decision, while there is significant evidence in this case that the Veteran’s disability is related to a long history of drug and alcohol abuse, the Board will assume the Veteran has PTSD. This finding does not suggest, in any way, that the Veteran’s PTSD is related to service. Stressor events can occur both before and after service. In this case, while there are clear indications of a stressor event prior to service, there is no credible evidence of a stressor event during service. The Board finds that the Veteran is competent to report on events he experienced while on active duty as well as the manifestations of his disabilities because they come to him via his own senses. See Davidson, supra. However, based on the Veteran’s testimony, and a review of the Veteran’s statements over time, Board finds the Veteran’s recollection of events seems impaired. Further, the service treatment records, including the June 1978 separation examination, do not document any injury, complaints, or symptoms nor show the appellant being diagnosed with an acquired psychiatric disorder including PTSD, hepatitis C, and cirrhosis of the liver. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). In fact, when examined for separation in June 1978 the Veteran specifically denied having a history of problems with his liver, depression, and nervous trouble and his psychiatric and lymphatic examinations were normal. It is important for the Veteran to understand that at this point, it is the Veteran himself that provides factual evidence of high probative value against his own claims. Therefore, the Board finds that the most probative evidence of record shows that the Veteran did not sustain a disease or injury while on active duty that caused any of his current acquired psychiatric disorders including PTSD as well as hepatitis C and cirrhosis of the liver. See 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303(a), 3.304(f). The detailed records in service provide particularly negative evidence against the claims, clearly indicating treatment for problems other than the issues before the Board. Likewise, the record shows that the Veteran was not diagnosed with any of the claimed disorders in the first year following his June 1978 separation from active duty. Therefore, the Board finds that the presumptions found at 38 C.F.R. §§ 3.307, 3.309 do not apply to the current appeal. See 38 U.S.C. §§ 1101, 1112, 1113, 1131; 38 C.F.R. § 3.303. Additionally, the Board finds that the record does not show the Veteran had a continued problem with an acquired psychiatric disorder including PTSD as well as hepatitis C and cirrhosis of the liver in and since service. In fact, as noted above, the service treatment records, including the June 1978 separation examination, are negative for a history, complaints, diagnoses, or treatment for any of the claimed disorders providing highly probative evidence against the claims. Likewise, and more important than the above, the post-service record is negative for complaints, diagnoses, or treatment for an acquired psychiatric disorder other than PTSD (i.e., depression) until 1992 (see VA treatment records dated in November 1992), PTSD until 2016 (see VA treatment record dated in February 2016), hepatitis C until 2003 (see VA treatment records dated in January 2003), and cirrhosis of the liver until 2012 (see VA treatment records dated in July 2012); more than a decade after the Veteran’s 1978 separation from service. At this point, the service medical records and the post-service medical evidence provides factual evidence against the claims. Therefore, the Board finds that the most probative evidence of record shows that the Veteran did not have a continued problem with an acquired psychiatric disorder including PTSD as well as hepatitis C and cirrhosis of the liver in and since service. See 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303(b), 3.304(f). The record does not show that the Veteran’s post-service acquired psychiatric disorders including PTSD as well as hepatitis C and cirrhosis of the liver are due to his military service. See 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303(d), 3.304(f). The Board is keenly aware of the fact that PTSD can, and in most cases does, develop well after service. The key question in this case is what caused the Veteran’s disability to develop after service. While the Board can not say with any certainty what caused the Veteran’s key disability, which has clearly caused other problems, the Board can find that it is less likely than not (a less than 50 percent chance) that this disability is the result of service more than 40 years ago. As to the acquired psychiatric disorders including PTSD, as discussed above the February 2014 VA examiner opined that the Veteran’s depression was due to childhood sexual abuse. This finding only provides evidence against this claim. Moreover, while the Board found that this opinion does not arise to clear and unmistakable evidence that the depression pre-existed military service (usually a finding that would only hurt the Veteran’s claim, as it would suggest that his problem has no connection to service, which makes this particular case and the basis for the JMR atypical), because, as also explained above, it is not supported by any other evidence of record and because it is directly contradicted by the January 1977 entrance examination, the Board nonetheless finds the VA examiner’s opinion adequate to adjudicate the question of whether any of the Veteran’s current acquired psychiatric disorders are due to his military service under 38 C.F.R. § 3.303(d) and 38 C.F.R. § 3.303(f). See Owens, supra; Guerrieri, supra. The Board has reached this conclusion because the legal standard that applies to claims under 38 C.F.R. §§ 3.303(d), 3.304(f) (i.e., more likely than not) are less stringent than those it applies to claims under 38 C.F.R. § 3.304(b) (i.e., clear and unmistakable evidence). Id. To fully address this case, the Board must address the Veteran’s statement that appears to suggest his depression and/or PTSD is the result of a stressful event in service when his staff sergeant and/or two fellow servicemembers picked him up and solicited him for sexual favors. In this, the Board is keenly aware of the fact that sexual assault is underreported in the military, particularly during the 1970’s. As a result, the Board has undergone a highly detailed review of this record. Based on this review, the Board makes the following factual finding: The stressor event the Veteran recalls did not occur. The facts of this case are clear, both in service, and perhaps more importantly, after service: The Veteran developed, over time, disabilities due to a long history of drug and alcohol abuse, perhaps associated with childhood abuse, but with no connection with miliary service. This is supported by the Veteran’s own prior statements and the medical opinion cited above. The Veteran’s long history of drug abuse is clear. During this treatment, he makes little, if any, references to the alleged stressor event. A detailed review of the treatment records in this case provides particularly negative factual evidence against this claim. Further, the Veteran’s has filed claims with VA for disabilities that clearly were not related to service. The Veteran’s recollection of events at his hearing with the undersigned appeared to be clearly impaired. He did not appear to be an accurate historian of his disability, particularly considering review of the extensive treatment records by the undersigned. The Board has considered if it should obtain another medical opinion in this case, but the Board finds that this case, at its core, if a factual determination based on the Veteran’s contentions regarding events alleged to have occurred nearly 50 years ago, not a medical determination. The Veteran clearly has a disability, and several disabilities associated with a disability, but not a disability related to service or any event in service. The Veteran’s recollection of events is not accurate. As to hepatitis C and cirrhosis of the liver, the Board notes that VA did not obtain etiology opinions. However, given the above record which is negative for the claimed disorders while on active duty and for decades after service as well as the Veteran’s claim that these problems are due to his acquired psychiatric disorders and not his military service, the Board finds that VA had no obligation to obtain a medical opinion as to these claims. See Paralyzed Veterans of America, et. al., v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003) (holding that the criteria for obtaining an etiology opinion have not been met when the evidence of record does not establish that the veteran suffered an event, injury, or disease in service because no reasonable possibility exists that providing a medical examination or obtaining a medical opinion would substantiate the claim); Duenas v. Principi, 18 Vet. App. 512, 519 (2004) (VA is not obligated to provide an examination for a medical nexus opinion where, as here, the supporting evidence of record consists only of a lay statement). It is important for the Veteran to understand that at this point both the factual evidence and the medical evidence (treatment records and the best medical opinion and, at some points, the Veteran’s own prior statements) provides highly probative evidence against the claims that the Board cannot ignore. The Board also finds that the Veteran is not competent to provide the missing nexus opinions because he does not have the required medical expertise to provide an answer to this complex medical question (i.e., what caused his current acquired psychiatric disorder including PTSD as well as hepatitis C and cirrhosis of the liver). See Davidson, supra. Similarly, as to the Veteran’s claim that his hepatitis C and cirrhosis of the liver are secondary to his acquired psychiatric disorders including PTSD, the Board notes that the appellant is not service-connected for any acquired psychiatric disorder including PTSD. Therefore, the Board finds that the Veteran does not meet the criteria for secondary service connection for hepatitis C and cirrhosis of the liver. See 38 U.S.C. § 1131; 38 C.F.R. § 3.310; also see Allen, supra; Wallin, supra; Ward, supra. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran’s claims of service connection for an acquired psychiatric disorder including PTSD as well as hepatitis C and cirrhosis of the liver. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304(f), 3.307, 3.309, 3.310. As to the claim of service connection for PTSD, in reaching the above conclusion the Board has not overlooked the fact that one of the criteria to establish service connection is a verified in-service stressor when, as in the current appeal, the PTSD is not related to fear of hostile military or terrorist activity. See 38 C.F.R. § 3.303(f). However, the Board finds that the current decision need not discuss whether he has a verified stressor. The Board has reached this conclusion because regardless of whether the Veteran has a verified stressor the claim must be denied given the above findings that his PTSD was not incurred on active duty, did not continue since service, that the Veteran’s recollection of events during service are in error, and his current disability is not due to his military service. Id. The severity of the Veteran’s condition is clear. It is important for the Veteran to understand that the Board cannot ignore the evidence it has reviewed in this case, particularly the treatment records and even some of the Veteran’s own prior statements, which simply do not suggest, in any way, that the Veteran’s alcohol and drug abuse problem is related to service and clearly provide, overall, evidence against this claim. Treatment records note problems with this issue prior to service, at the age of 16. As to the claims of service connection for hepatitis C and cirrhosis of the liver, in reaching the above conclusion the Board has not overlooked the fact that VA treatment records note that he had used intravenous drugs as well as had a problem with alcohol abuse. In this regard, the Board notes that compensation cannot be awarded pursuant to 38 U.S.C. §§ 105, 1131 either for a primary drug abuse disability incurred during service or for any secondary disability that resulted from primary drug abuse during service. See Allen v. Principi,237 F.3d 1368, 1376(Fed. Cir. 2001). VA’s General Counsel has confirmed that direct service connection for a disability that is a result of a Veteran’s own abuse of alcohol or drugs is precluded for purposes of all VA benefits for claims filed after October 31, 1990. See VAOPGCPREC 7-99 (1999), published at64 Fed. Reg. 52,375(June 9, 1999); VAOPGCPREC 2-98 (1998), published at 63 Fed. Reg. 31,263(February 10, 1998). Therefore, to the extent that the Veteran is claiming service connection for hepatitis C and cirrhosis of the liver due to his intravenous drug use and/or alcohol abuse, the claims are denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the Board should deny the claim on the ground of lack of legal merit). Lastly, in reaching the above conclusions the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claims, the Board finds that this doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-56. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.T. Werner, 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.