Citation Nr: 21062652 Decision Date: 10/08/21 Archive Date: 10/08/21 DOCKET NO. 16-56 269 DATE: October 8, 2021 ORDER Entitlement to service connection for heart disease is dismissed. Entitlement to service connection for diabetes mellitus, type II, is dismissed. Entitlement to automobile or other conveyance and adaptive equipment or for adaptive equipment only is dismissed. Entitlement to service connection for major depressive disorder is denied. Entitlement to a compensable disability rating for service-connected hepatitis B is denied. FINDINGS OF FACT 1. The Veteran did not timely appeal a Statement of the Case (SOC) dated June 1, 2020, denying the claims for entitlement to service connection for heart disease and diabetes mellitus, type II. 2. The Veteran did not timely appeal a SOC dated June 2, 2020, denying the claim for entitlement to automobile or other conveyance and adaptive equipment or for adaptive equipment only. 3. The preponderance of the evidence is against finding that the Veteran's major depressive disorder began during active service, or is otherwise related to an in-service event, injury, or disease. 4. For the entire appeal period, the Veteran's hepatitis B was not manifested by intermittent fatigue, malaise and anorexia, or incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least one week but less than two weeks during the past 12-month period. CONCLUSIONS OF LAW 1. The criteria for dismissal of the claim for entitlement to service connection for heart disease have been satisfied. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201. 2. The criteria for dismissal of the claim for entitlement to service connection for diabetes mellitus, type II, have been satisfied. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201. 3. The criteria for dismissal of the claim for entitlement to automobile or other conveyance and adaptive equipment or for adaptive equipment only have been satisfied. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201. 4. The criteria for service connection for major depressive disorder have not been satisfied. 38 U.S.C. §§ 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 5. The criteria for a compensable rating for service-connected hepatitis B have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.114, Diagnostic Code 7345. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1970 to December 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2014, August 2017, and January 2018 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in August 2018, a transcript of which is of record. 1. Entitlement to service connection for heart disease and diabetes mellitus. 2. Entitlement to automobile or other conveyance and adaptive equipment or for adaptive equipment only. In February 2019, the Board remanded the claims for service connection for heart disease and diabetes mellitus, as well as the claim for entitlement to automobile or other conveyance and adaptive equipment or for adaptive equipment only, for the RO to issue a SOC in response to a notice of disagreement filed by the Veteran. The record reflects that the SOCs were issued in June 2020, along with instructions on filing a timely appeal. The Veteran did not, however, appeal these issues. Therefore, they are not before the Board and must be dismissed. 38 C.F.R. § 20.200 (An appeal consists of a timely filed Notice of Disagreement in writing and, after a SOC has been furnished, a timely filed Substantive Appeal.). If he wishes to do so, the Veteran may file new claims on the appropriate form prescribed by the VA Secretary. 3. Entitlement to service connection for chronic depression. Generally, to establish service connection, a claimant 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. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA has established certain rules and presumptions for chronic diseases, such as psychoses. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). The Veteran has a current disability, diagnosed upon VA examination in January 2020 as major depressive disorder. Thus, the remaining question is whether the Veteran's major depressive disorder disability is related to service. Service treatment records (STRs) show the Veteran noting "YES" as to having "depression or excessive worry" on an October 19, 1971 Report of Medical History. The Board notes, however, that a contemporaneous Report of Medical Examination notes that psychiatric evaluation was normal. Additionally, a separate Report of Psychiatric Evaluation also provided on October 19, 1971 notes a diagnosis of "immature personality," and that the Veteran was referred by his unit with the chief complaint that he was "continuously drinking and complaining of family problems." The military psychologist found no signs of psychosis, neurosis, or serious mental defect. The Veteran's remaining STRs are negative for further complaints indicative of any acquired psychiatric disorder. A disability is not shown by medical evidence until approximately May 1997, many years after the Veteran's separation from service, where he reported to a VA examiner that he had been depressed since the previous year due to not being able to obtain employment due to physical disabilities (which the Board notes are not service-connected). As a chronic disability, such as a psychosis, is not shown to have been present during service or in the first year after separation of service, and continuity of symptomatology leading to a diagnosis of such is not shown, in-service incurrence cannot be presumed. See 38 C.F.R. §§ 3.307, 3.309(a). Pursuant to the Board's remand, as no medical opinion as to the etiology of the Veteran's major depressive disorder was of record, an additional VA examination was provided in January 2020. The Veteran was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The examiner opined that it was less likely than not less likely than not related to an in-service injury, event, or disease. The examiner explained that, while the Veteran was noted to have problematic alcohol use and an immature personality in his STRs, he was not diagnosed with depression or another mental disorder at the time. Instead, and as the Board has also noted above, the Veteran was first diagnosed with depression in the 1990s, many years after his active service period ended, secondary to his inability to work due to physical health problems. While the Veteran has had subsequent recurrent depressive episodes, the examiner continued, these appear to have been precipitated by situational stressors. There is no medical opinion or competent and credible evidence in significant conflict with the VA medical opinion. The Board has considered the Veteran's statements, to include his assertions that his major depressive disorder is related to service. As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., depressed mood; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent, however, to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. In any event, the Board ultimately assigns greater probative weight to the medical evidence of record, to include the opinion rendered by a trained medical professional based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. For the above reasons, the preponderance of the evidence is against the claim and service connection for major depressive disorder is denied. 4. Entitlement to a compensable disability rating for hepatitis B. Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. The evidentiary record does not reasonably raise the prospect that the Veteran's disability is not and cannot be adequately rated under the Rating Schedule. The Veteran is currently assigned a noncompensable (zero percent) disability rating for his hepatitis B pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7345, for chronic liver disease without cirrhosis (including hepatitis B, chronic active hepatitis, autoimmune hepatitis, hemochromatosis, drug-induced hepatitis, etc., but excluding bile duct disorders and hepatitis C). He asserts that a higher rating is warranted. Under Diagnostic Code 7345, chronic liver disease that is non-symptomatic is rated as noncompensable. A 10 percent evaluation is assigned in cases of intermittent fatigue, malaise, and anorexia, or incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least one week, but less than two weeks, during the past 12-month period. A 20 percent evaluation is assigned in cases of daily fatigue, malaise, and anorexia (without weight loss or hepatomegaly), requiring dietary restriction or continuous medication or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least two weeks, but less than four weeks, during the past 12-month period. A 40 percent evaluation is assigned in cases of daily fatigue, malaise, and anorexia, with minor weight loss and hepatomegaly or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least four weeks, but less than six weeks, during the past 12-month period. A 60 percent evaluation is assigned in cases of daily fatigue, malaise, and anorexia, with substantial weight loss (or other indication of malnutrition), and hepatomegaly or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least six weeks during the past 12-month period, but not occurring constantly. A 100 percent evaluation is assigned in cases of near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). Note (1) in Diagnostic Code 7345 provides that sequelae, such as cirrhosis or malignancy of the liver, are to be evaluated under an appropriate diagnostic code but not using the same signs and symptoms as the basis for evaluation under Diagnostic Code 7354 and under a diagnostic code for sequelae. (See 38 C.F.R. § 4.14, VA's anti-pyramiding regulation.). Note (2) in Diagnostic Code 7345 indicates that an "incapacitating episode" means a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician. The Veteran was afforded a VA examination for his initial service connection claim in April 2014. While the Veteran reported that he developed hepatitis B in the 1970's while stationed in Korea, he specifically reported no problems with hepatitis or any liver disease since then and has required no medication. The examination report notes that the Veteran had no signs or symptoms attributable to a chronic or infectious liver disease and had no incapacitating episodes of symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain due to the liver condition during the past 12 months. Based on the findings of the above examination, the Veteran was granted service connection for his in-service hepatitis B in the rating decision on appeal and assigned his current noncompensable rating. During his hearing before the undersigned in August 2018, however, the Veteran reported symptoms that included fatigue, nausea, vomiting, loss of appetite, joint pain, and abdominal pain. As such, the claim was remanded by the Board in February 2019 for a new VA examination to determine the nature and severity of his hepatitis B, and whether his reported symptoms were due to this disability or another. The examination was afforded in January 2020. Again, however, the Veteran was noted to not have any signs or symptoms attributable specifically to his hepatitis B, with normal laboratory test results, and had no incapacitating episodes of symptoms during the past 12 months. The examiner noted that the Veteran was diagnosed with stage IV adenocarcinoma of the lung and is being treated with chemotherapy, and opined that his reported symptoms are instead related to this treatment and not his hepatitis B. The Veteran's medical treatment records, including private treatment records obtained since the Board's previous remand, are not in significant conflict with the above findings upon VA examination. Based on the foregoing, the Board finds that a higher, 10 percent rating is not warranted, as the evidence is against a finding that that Veteran's hepatitis B during the appeal has manifested intermittent fatigue, malaise, and anorexia, or incapacitating episodes having a total duration of at least one week, but less than two weeks, during the past 12-month period. 38 C.F.R. § 4.114, Diagnostic Code 7345. As his hepatitis B is not symptomatic, only his current noncompensable rating is warranted, and the claim must be denied. The Board is sympathetic to the Veteran's lay statements that his hepatitis B is worse than currently evaluated and those statements have been considered. The Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's disability have been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which the disability is evaluated. The medical and lay evidence has been assessed by the Board in determining the overall disability rating. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Scarduzio, 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.