Citation Nr: 21007079 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 11-01 404 DATE: February 8, 2021 ORDER Service connection for Hepatitis C, to include as secondary to major depressive disorder is denied. A total disability rating based on individual unemployability (TDIU) due to major depressive disorder is granted. FINDINGS OF FACT 1. The Veteran’s Hepatitis C was not caused by service. 2. The Veteran’s Hepatitis C was not caused or aggravated by his service-connected major depressive disorder. 3. With resolution of the doubt in his favor, the Veteran’s service-connected major depressive disorder precluded him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria to establish entitlement to service connection for Hepatitis C have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303(d), 3.310 (2019). 2. The criteria to establish entitlement to a TDIU have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.16(a) (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Marine Corps from April 1973 to April 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2009 rating decision of the Detroit, Michigan Regional Office (RO). In May 2012, the Veteran was afforded a hearing before the undersigned Veterans Law Judge (VLJ) sitting at the RO. During the hearing, the VLJ engaged in a colloquy with the Veteran toward substantiation of the claims. Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A hearing transcript is in the record. In June 2014, the Board remanded the appeal to the RO for additional action. There was substantial compliance with the Board’s remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection – Hepatitis C Service connection may be granted for a current disability arising from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 (2012). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2019). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection shall be granted on a secondary basis under 38 C.F.R. § 3.310 where it is demonstrated that a service-connected disorder caused or aggravated a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran asserts that his Hepatitis C was caused by having been inoculated with an air gun during service and/or exposure to contaminated water at Camp Lejeune, or alternatively, as secondary to his service-connected major depressive disorder. The claim will be denied. A military personnel record (MPR) titled “Immunization Record” reflects that the Veteran was inoculated with the smallpox vaccine, typhoid vaccine, tetanus and diptheria toxoid, influenza vaccine, poliovirus vaccine, streptococcal prophylaxis, bicillin, meningococcal vaccine and adenovirus vaccine. A MPR titled “Record of Service” reflects that the Veteran was stationed in Camp Lejeune from August 1973 to April 1974. In the Veteran’s April 1974 separation medical examination report, no endocrine or liver abnormalities were noted. In a September 2003 VA treatment record, the Veteran reported that he “drinks beers, but [his] main problem is drugs.” A history of daily cocaine use was noted and risk factors for Hepatitis C included unequivocal blood exposure due to taking uncontrolled medication, multiple sex partners resulting in unprotected sex and a long history of intemperate alcohol use. In a January 2004 VA treatment record, laboratory testing revealed Hepatitis C antibodies. VA treatment records dated May 2007 and December 2008 noted a history of Hepatitis C, drug abuse and a diagnosis of Hepatitis C. In a December 2008 VA treatment record, it was noted that the Veteran had one or more risk factors for Hepatitis C. In a March 2009 VA treatment record, it was noted that the Veteran had a history of a blood transfusion prior to 1992, unequivocal blood exposure, IV drug use, intranasal cocaine use, tattooing/body piercing and multiple sexual partners. The Veteran was diagnosed with Hepatitis C. VA treatment records dated July 2009 and November 2009 reflect a diagnosis of Hepatitis C. In his January 2011 brief, the Veteran through his representative, asserted that his Hepatitis C was secondary to service-connected major depressive disorder because the Veteran used drugs as a coping mechanism. A VA examination and/or medical opinion is not warranted based on the Veteran’s surmise that his Hepatitis C may be related to a service-connected disorder. See Waters v. Shinseki, 601 F. 3d 1274, 1278 (Fed. Cir. 2010) (noting that a veteran’s conclusory generalized statement that a service illness caused his present medical problems was not enough to entitle him to a VA medical examination since all veterans could make such a statement, and such a theory would eliminate the carefully drafted statutory standards governing the provision of medical examinations and require VA to provide such examinations as a matter of course in virtually every disability case). In his May 2012 Board hearing, the Veteran reasserted that his Hepatitis C was caused by having been inoculated with an unclean air gun during service. In a July 2014 VA examination, the Veteran was diagnosed with Hepatitis C and the examiner noted multiple risk factors such as blood transfusion prior to 1992, IV drug use, intranasal cocaine use, multiple sex partners and an alcohol use history with current use since 2004. The examiner opined that the Veteran’s Hepatitis C was not caused by having been inoculated with an air gun during service because the high pressure used to push the vaccine into the subcutaneous tissue would also keep blood from entering the injection tip and the amount of blood needed to inoculate someone with Hepatitis C is a lot more than a pinhead amount. The examiner indicated that the Veteran’s Hepatitis C was caused by the multiple risk factors noted above. The VA medical opinion is highly probative because the examiner had an accurate and complete understanding of the Veteran’s medical history and provided a medical conclusion with sufficient rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In a January 2017 statement, the Veteran asserted, for the first time, that his Hepatitis C was caused by exposure to contaminated water at Camp Lejeune. The Veteran is not competent to provide a medical opinion pertaining to the cause of his Hepatitis C. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In addition, a VA examination and/or medical opinion is not warranted based on the Veteran’s surmise that his Hepatitis C may be related to exposure to contaminated water at Camp Lejeune. Waters, supra. A preponderance of the evidence is against a finding that the Veteran’s Hepatitis C was caused by having been inoculated with an air gun during service, exposure to contaminated drinking water at Camp Lejeune, or alternatively, as secondary to his service-connected major depressive disorder. In the Veteran’s April 1974 separation medical examination report, no endocrine or liver abnormalities were noted. As noted above, the Veteran is not competent to provide a medical opinion as to the cause of his Hepatitis C. The July 2014 VA examiner opined that the Veteran’s Hepatitis C was not caused by service. Significantly, no competent medical provider has opined otherwise. Therefore, service connection is not warranted and the claim is denied. TDIU TDIU may be assigned, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2019). The Veteran is service connected for major depressive disorder rated 50 percent disabling from January 28, 2009 to May 21, 2019 and 100 percent disabling from May 22, 2019 and continuing thereafter. The Veteran has met the schedular criteria as of May 22, 2019 under 4.16(a). The remaining question concerns whether the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. See 38 C.F.R. § 4.16(a) (2019). The fact that a veteran is unemployed or has difficulty finding employment does not warrant assignment of a TDIU alone as a high rating itself establishes that his disability makes it difficult for him to obtain and maintain employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Rather, the evidence must show that he is incapable “of performing the physical and mental acts required” to be employed. Id. Thus, the central question is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability,” and not whether the Veteran could find employment. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In a June 2019 statement, the Veteran reported experiencing trouble obtaining employment due to his depression and other non-service connected disabilities. In a September 2019 VA examination, the Veteran reported having been fired or voluntarily quit from approximately twelve jobs. The examiner indicated that the Veteran experienced trouble gaining and sustaining effective work relationships, increased anxiety, trouble focusing, absenteeism and tardiness. It was noted that the Veteran experienced verbal and physical outbursts, and in one instance, had thrown job equipment. The Veteran reported experiencing agitation on the job and that he would not eat for several days resulting in exhaustion and weakness. The Board will grant a TDIU from May 22, 2019 and continuing thereafter based on the benefit-of-the-doubt doctrine. Although the Veteran indicated having experienced trouble obtaining employment due to the symptoms of his major depressive disorder and other non-service connected disorders, the applicable regulation instructs to disregard the degree of non-service connected disabilities when the schedular requirement was met and the Veteran’s service-connected disorder(s) render him unemployable. Significantly, the Veteran is rated 100 percent disabling for major depressive disorder from May 22, 2019. The Board will resolve all reasonable doubt in favor of the Veteran. Therefore, a TDIU is warranted and the claim is granted. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Cohen, 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.