Citation Nr: 21011964 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 13-24 656 DATE: March 3, 2021 ORDER Service connection for a psychiatric disorder, other than posttraumatic stress disorder (PTSD), is denied. Service connection for Hepatitis C is denied. FINDINGS OF FACT 1.The preponderance of the evidence weighs against a finding that the Veteran has a diagnosed psychiatric disorder other than PTSD; the preponderance of the evidence weighs in favor of a finding that all his psychiatric symptoms are associated with his PTSD. 2. The preponderance of the evidence does not demonstrate that the Veteran’s Hepatitis C infection was acquired during or is otherwise related to his active service, other than due to intravenous drug abuse, which is a bar to VA benefits for claims filed after October 31, 1990. CONCLUSIONS OF LAW 1. The criteria for service connection for a psychiatric disorder, other than PTSD, have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 2. The criteria for service connection for Hepatitis C have not been met. 38 U.S.C. §§ 105, 1110; 38 C.F.R. §§ 3.301, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1969 to January 1971. These claims are on appeal from an October 2009 rating decision. In July 2014, the Veteran testified at a hearing before a Veterans Law Judge (VLJ) who is no longer employed at the Board. In January 2021, the Board sent the Veteran a letter offering him to provide testimony at an additional optional hearing before another VLJ who would decide his case. The Veteran did not respond to that letter and it was not returned as undeliverable; accordingly, his claim has been reassigned to the undersigned VLJ for a decision. See 38 C.F.R. § 19.3(b). In October 2020, the Board sent the Veteran a letter indicating that he could elect a Virtual hearing instead of waiting for a Travel Board hearing. Upon further review, the Veteran does not have a pending hearing request; he was afforded a hearing previously as discussed above and the October 2020 letter was sent in error. Relevant Procedural History In May 2015, the Veteran’s claims were first before the Board and were remanded to obtain an addendum opinion to determine the etiology of any diagnosed psychiatric disorder (other than PTSD). Given that the Veteran had claimed service connection for Hepatitis C not only on a direct basis but also on a secondary basis, the Board found a remand was required to provide him with notice of what is required to substantiate a claim for secondary service connection under 38 C.F.R. § 3.310. He was provided this notice in a July 2015 letter. In December 2017, the Board remanded the Veteran’s claims to the Agency of Original Jurisdiction (AOJ) for additional development and readjudication. Specifically, the Board found the opinion pertaining to the psychiatric disorder was inadequate because it only addressed PTSD and did not address any other diagnosed psychiatric disorder. A new examination and opinion were obtained in February 2019. The Board also instructed the AOJ to provide the Veteran an opportunity to provide additional information and/or evidence pertinent to his claim. In January 2018, the AOJ sent the Veteran a letter offering him the opportunity to provide additional information and/or evidence in support of his claims. Finally, the Board directed the AOJ to obtain all outstanding VA treatment records, which was also accomplished. Based on the foregoing, the Board finds there has been substantial compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Legal Criteria Service connection may be established for disability due to a disease or injury that was incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, in order to prevail on the issue of service connection the evidence 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). Additionally, a disability that is proximately due to, or results from, another disease or injury for which service connection has been granted, will be considered part of the original disorder. 38 C.F.R. § 3.310(a). Moreover, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310(b). In the absence of proof of a current disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (finding service connection presupposes a current diagnosis of the condition claimed). The 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.” McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). For claims filed after October 31, 1990, direct service connection may be granted only when a disability was incurred or aggravated in the line of duty and was not the result of willful misconduct or the result of abuse of alcohol or drugs. 38 U.S.C. § 105; 38 C.F.R. § 3.301(a). The isolated and infrequent use of drugs by itself will not be considered willful misconduct; however, the progressive and frequent use of drugs to the point of addiction will be considered willful misconduct. 38 C.F.R. § 3.301(c)(3). Drug abuse means the use of illegal drugs (including prescription drugs that are illegally or illicitly obtained), the intentional use of prescription or non-prescription drugs for a purpose other than the medically intended use, or the use of substances other than alcohol to enjoy their intoxicating effects. 38 C.F.R. § 3.301(d). Although all the evidence of record has been thoroughly reviewed, only the most relevant and salient evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The analysis in this decision focuses on what the evidence shows or fails to show with respect to the matters decided herein. The Veteran should not assume that pieces of evidence not explicitly discussed herein have been overlooked. See Allday v. Brown, 7 Vet. App. 517, 527 (1995). Factual Background and Analysis 1. Service connection for a psychiatric disorder, other than PTSD In a May 2015 decision, the Board granted service connection for PTSD. However, the question remains whether the Veteran has another diagnosed psychiatric disorder for which service connection is warranted. See Clemons v. Shinseki, 23 Vet. App. 1, 7 (2009). Following a thorough review of the evidence of record, the Board finds service connection for a psychiatric disorder other than PTSD must be denied. The Veteran attended a February 2019 VA examination and the only mental health diagnosis was PTSD. The examiner acknowledged other psychiatric diagnoses in treatment records and explained that hearing voices is now known to be a symptom of PTSD (explaining the difference between the DSM-IV and DSM-5 diagnostic criteria). Further, the Veteran’s symptoms of depressed mood, anxiety, panic attacks, and sleep impairment were attributed to his service-connected PTSD, as reflected in the examination report. Thus, the examiner found all the Veteran’s psychiatric symptoms were related to his service-connected PTSD and concluded that the preponderance of the evidence weighed against a finding that the Veteran had any other psychiatric diagnosis, other than PTSD. Based on the foregoing, the Board finds the claim for service connection for a psychiatric disorder other than PTSD must be denied. The February 2019 examiner provided an explanation for the conclusion reached. Additionally, the Board finds the examination report to be more probative than diagnoses in VA medical records, as this examination was performed for the specific purpose of determining whether there was a separate diagnosis and that the Veteran’s attendance at VA medical appointments was to treat his psychiatric symptoms. The Board acknowledges that the May 2015 remand directives instructed the AOJ to ensure the addendum opinion obtained was from the examiner who performed the March 2015 examination, and the October 2015 addendum opinion was from the same examiner. However, the most recent February 2019 opinion is from a different examiner. The Board finds the February 2019 opinion was based on an in-person examination of the Veteran, and thus, the intent of the prior remand instructions (to obtain an opinion from a medical professional who actually examined the Veteran) has been accomplished. Moreover, the March 2015 examiner was unable to comment on any mental health diagnosis other than PTSD, explaining that the case was complex due to the Veteran’s “long history of substance abuse” and “inconsistent reporting.” See October 2015 Addendum Opinion. Thus, the fact that the addendum opinion, which is the basis of the instant denial, is not from the examiner who performed the March 2015 examination is harmless error. The Board notes that strict compliance with prior remand directives is not required; rather, only substantial compliance is. Stegall, 11 Vet. App. at 271 (emphasis added). Accordingly, the Board finds its prior remand directives have been substantially complied with and that to remand for strict compliance is not required. See id; see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided). Finally, while the Veteran is certainly competent to report symptoms he experiences, he is not competent to opine that he has a separately diagnosed psychiatric disorder, as this requires specialized medical knowledge, education, and/or training and is not susceptible to lay observation alone. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). To the extent the Veteran has stated he experiences symptoms of sleep impairment, anxiety, depression, and other psychiatric symptoms, these symptoms have been attributed to his service-connected PTSD, and his disability rating for PTSD is reflective of all his psychiatric symptoms. Absent a separately diagnosed psychiatric disorder, service connection is not warranted. See Brammer, 3 Vet. App. at 225; see also McClain, 21 Vet. App. at 321. Consideration has been given to the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran’s claim, it is not applicable. See 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). 2. Service connection for Hepatitis C is remanded. The Veteran is claiming service connection for Hepatitis C on a direct basis and as secondary to his service-connected PTSD. See June 2009 Claim; see also July 2014 Hearing Transcript. At his hearing before the Board, his representative indicated the Veteran contended his PTSD and other psychiatric conditions caused him to self-medicate with intravenous drugs during service, which resulted in him being infected with Hepatitis C. The Veteran’s service treatment records reflect a superior officer found several syringes and needles in the Veteran’s room in October 1970; it was noted the Veteran’s left forearm had markings consistent with intravenous drug use. The Veteran established healthcare with VA in April 2009; at his initial appointment, he reported a history of intravenous heroin use in the 1970s and intravenous cocaine use in the 1990s. Admirably, he indicated he had not used illicit drugs in twenty years. He did not report a history of Hepatitis C; rather, because of his reported intravenous drug use, bloodwork was performed, which was positive for a Hepatitis C infection. Here, the preponderance of the evidence weighs against a finding that service connection for Hepatitis C is warranted. The Board finds the Veteran’s drug use has been more than isolated and infrequent; by his own admission, during service he was first introduced to heroin and became “heavily addicted.” See July 2014 Hearing Transcript; see also August 2014 PTSD stressor statement. Further, VA treatment records demonstrate he reported significant intravenous drug use during and after service. His in-service drug use resulted in an administration separation from service. Post-service, the Veteran was psychiatrically hospitalized in the 1980s relating to his cocaine use and his post-service drug use caused him significant legal trouble, resulting in a lengthy period of incarceration. Thus, the Board finds the preponderance of the evidence weighs against a finding the Veteran’s drug use was isolated and infrequent; rather, his drug use rose to the point of addiction, which is considered drug abuse, and therefore, willful misconduct. See 38 C.F.R. § 3.301(c)(3). Further, his claim was received in June 2009; as noted above, for claims received after October 31, 1990, direct service connection for a disability that is a result of a claimant’s own drug abuse is precluded for purposes of all VA benefits. The Board recognizes that the Veteran has reported other risk factors for Hepatitis C, including engaging in high-risk sexual activity, sharing toothbrushes and razor blades, and that he has a tattoo and an ear piercing. See July 2009 Hepatitis Questionnaire. However, he has not indicated that he participated in any of these activities during his active service; rather, he has only claimed he contracted Hepatitis C through intravenous drug use. Moreover, the first objective medical evidence of a Hepatitis C diagnosis is in April 2009, which is nearly four decades following his separation from active duty, which weighs against his claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that the passage of many years between discharge from active service and the continuity of symptomatology or medical documentation of a claimed disability are factors that tend to weigh against a claim for service connection). Thus, to the extent the Veteran was using intravenous drugs during service, which may have resulted in a Hepatitis C infection, he is not entitled to service connection as this constitutes willful misconduct. Further, although VA examiners have found the Veteran’s drug abuse was the result of his service-connected PTSD, which the Board concedes, to the extent he may claim he contracted Hepatitis C from post-service drug use, VA law and regulation still precludes service connection as his drug abuse is considered willful misconduct. Based on the foregoing, the preponderance of the evidence weighs against a finding that the Veteran’s Hepatitis C began during or is etiologically related to his active duty service, aside from in-service and post-service intravenous drug use associated with his PTSD, which is a bar to VA benefits for claims for claims received after October 31, 1990. As the preponderance of the evidence weighs against a finding that service connection is warranted for Hepatitis C, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107(b); see also Gilbert, 1 Vet. App. at 56. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board O'Connell, Jessica L. 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.