Citation Nr: 21023189 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 14-40 431 DATE: April 20, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depressive disorder, is denied. Entitlement to service connection for hepatitis C is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had a confirmed diagnosis of PTSD at any time during or approximate to the pendency of the claim. 2. The preponderance of the evidence is against finding that the Veteran’s acquired psychiatric disorder other than PTSD began during active service, or is otherwise related to an in-service injury or disease. 3. The preponderance of the evidence is against finding that the Veteran’s hepatitis C began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder, to include PTSD and depression are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125(a). 2. The criteria for service connection for hepatitis C are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1973 to March 1974. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. These issues were remanded by the Board in May 2018 and July 2020. The RO has since substantially complied with the remand directives and the matters are now again before the Board. Before moving to the merits of the issues on appeal, the Board notes that the prior remand ordered the RO to complete evidentiary development related to certain identified private treatment records. After the remand, the Veteran was contacted and asked to provide the fully executed authorization form. The RO subsequently mailed letters to both private healthcare facilities two times, once in October 2020 and once in November 2020. The Veteran was also notified that the records were requested and that he could also obtain the records and submit them to VA. Neither of the private clinicians responded and the Veteran also did not respond. The Board finds VA has met its duty to assist in this regard. 38 C.F.R. § 3.159(c)(1). The Veteran contends that service connection is warranted for both an acquired psychiatric disorder and hepatitis C. He has suggested several stressors during his brief period of service caused his psychiatric disorder. Moreover, his former representative argued on a November 2019 VA Form 9 that the Veteran reported being diagnosed with hepatitis C shortly after his discharge, thus he believes he contracted it in service. The representative also suggested the Veteran believes he may have been exposed to hepatitis C while having dental work done in service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Psychiatric Disorder The Veteran contends that he has a current psychiatric disorder that is related to his active service. The Veteran has specifically claimed service connection for PTSD and the records of clinical treatment show varying diagnoses. The question for the Board is whether the Veteran has a current psychiatric disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. PTSD Turning first to PTSD, service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the in-service stressor occurred. 38 C.F.R. § 3.304(f). The Board concludes that the Veteran does not have a current diagnosis of PTSD and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran, in November 2010, reported that he almost drowned during basic training and that as a result, he was discharged. A VA staff psychiatrist submitted a statement in July 2011 suggesting the Veteran had been diagnosed with PTSD and major depression. This note indicated the Veteran had reported being in the Navy, but unable to swim, which led to him not being treated well by other soldiers. He also reported to this psychiatrist that he had witnessed someone being shot. The psychiatrist noted the Veteran has also had several traumatic experiences later in life. The clinician did not explain the basis upon which PTSD was diagnosed. The clinician again submitted a statement in November 2011, at which time it was suggested that the Veteran was in the Navy for one year and was harassed several times for not being able to swim. The Board notes that the Veteran was in the service for three months, not one year. The November 2011 report also suggested the Veteran’s left knee was injured at the time he was pushed into the pool and causes him problems now, including problems with his gait. In February 2012, the Veteran reported that he could not swim and was pushed into the pool, after which he ran away. He also reported at that time that during training, one of the recruits was “killed by his sword.” He again reported that he could not swim and was pushed into the water in a March 2012 statement. He suggested he was pushed off of a thirty-foot high diving board and then was picked up by military police for not complying with the training. In January 2013, the RO made a formal finding that there was not sufficient evidence to corroborate the Veteran’s reported stressors. The Board has also reviewed the Veteran’s service treatment and personnel records. There is no evidence of any medical treatment following a traumatic push into a pool, or for any knee injury resulting from such. The Board presumes a knee injury so severe that it caused an altered gait decades later would have been treated. Moreover, the Veteran’s service personnel records show that the Veteran confirmed in writing in November 1973 that he knows how to swim. Further, a March 1974 narrative statement shows that the reason for discharge was the conclusion that the Veteran was unsuitable for further training due to failure to adjust to minimum training standards. The reasons listed included lack of motivation, refusal to accept military discipline, a lackadaisical attitude, and no demonstrable motivation to succeed in the service. There was no indication at all that any lack of the ability to swim was a reason for his discharge. Further, there is no indication in the Veteran’s service personnel records that he was ever picked up by the military police for refusing to train after being pushed into a pool. Nor is there any indication in the service treatment or personnel records that the Veteran was seen related to a fellow recruit being killed by his own sword. Given the RO’s determination that there is insufficient evidence for corroboration of these stressors, combined with the findings in the Veteran’s own service medical and personnel records, the Board finds the Veteran’s reported stressors lack credibility. These reports are not supported by the evidence of record contemporaneous with the Veteran’s time of service and, in some ways, are explicitly contradictory. For instance, several stressors pertain to the Veteran suggesting he experienced anxiety because he could not swim and was pushed in the water, but his service records show he explicitly indicated that he could swim. Further, the Veteran reported being discharged due to his inability to swim, but the records around the time of the Veteran’s discharge show he was discharged due to his general unfitness for service. The various stressors reported by the Veteran are not corroborated. Given the lack of a corroborated service stressor, any indication of a PTSD diagnosis within the Veteran’s post-service clinical record is not in accordance with 38 C.F.R. § 3.304(f). Further, the Veteran was afforded a VA examination in December 2019 and the examiner found the Veteran does not meet the diagnostic criteria for PTSD. The examiner found the Veteran met the diagnostic criteria for antisocial personality disorder and unspecified depressive disorder, but not PTSD. Although the Veteran believes he has a current diagnosis of PTSD, he is not competent to provide a diagnosis in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. The record is simply without a valid diagnosis of PTSD by a medical professional who had the complete history. The threshold requirement for the granting of service connection, including for PTSD, is evidence of a current disability. In the absence of evidence of a current disability, in this matter a diagnosis of PTSD, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Thus, service connection for PTSD is not warranted. Acquired Psychiatric Disorder, Other than PTSD The Board concludes that, while the Veteran has a diagnosis of depressive disorder, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. The Veteran’s service treatment records for his three months of service include no indication of an initial onset of any psychiatric disorder in service. These records are silent as to any diagnosis or symptoms such as depression or anxiety at the time of the Veteran’s service. Post service records do show ongoing psychiatric care for varying diagnoses. The Veteran was afforded a VA examination in December 2019. The examiner summarized the Veteran’s history and found the Veteran met the diagnostic criteria for antisocial personality disorder and for unspecified depressive disorder. With regard to the personality disorder, the Board notes a personality disorder is not a disease or injury within the meaning of the law providing compensation. 38 C.F.R. §§ 3.303, 4.9. As for the depression, the VA examiner opined that the Veteran’s depressive disorder is less likely than not related to an in-service injury, event, or disease. The examiner noted the lack of any indication of a psychiatric disorder in service or immediately after service, and found the Veteran’s depression to be related to post-service psychosocial stressors related to legal and financial problems, which were noted to have been caused by his personality disorder. While the Veteran may believe his depressive disorder is related to some aspect of his active service, the Board reiterates that the preponderance of the evidence weighs against finding any such causal connection. The evidence of record simply does not support it. Moreover, the Veteran is not competent to provide such a nexus statement as he does not have the required medical expertise. Accordingly, this claim for service connection for an acquired psychiatric disorder, to include PTSD and depressive disorder, must be denied. The Board has duly considered the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim, so that doctrine is not applicable. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Hepatitis C The Board concludes that, while the Veteran has a diagnosis of hepatitis C, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. As for the Veteran’s contention that he contracted hepatitis C while in service, to include during dental treatment, the Veteran’s service treatment records are without any indication of such. The service dental records do not include any indication of a dental procedure being conducted and the service clinical records and entrance and separation examinations are without any indication of hepatitis or any reported activities that may have led to hepatitis. A November 2019 VA examiner confirmed the Veteran’s diagnosis and noted the Veteran reporting that he came to know about having hepatitis C after a routine blood test at the Detroit VA hospital. He indicated he does not recall any serious injury or blood transfusion while in service and he denied sharing things like blades with other people in service. He reported using IV drugs initially in 1978 and not getting a tattoo until 2003, both after his active service. The Veteran was incarcerated for a period of time after service. His medical records from the Michigan Department of Corrections are also within his claims file. A January 2009 record shows his active problem list as including hepatitis C and there is an indication at that time that the date of its onset was February 4, 2005, which is decades after his separation from active service. There is no additional evidence in the claims file discussing the initial onset or etiology of the Veteran’s hepatitis C. To the extent the Veteran believes his current hepatitis C is related to his active service, the Veteran is not competent to determine that a post-service diagnosis is related to any aspect of his active service as he has not demonstrated the necessary medical expertise. The issue is medically complex, as it requires the medical knowledge of how certain diseases transmissible through blood are contracted. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board does recognize the Veteran is competent to report having a history of certain symptoms or experiences, but he has actually not done so in this case. He vaguely suggested that he believes his post-service diagnosis was related to service without any explanation for this belief. And, his former attorney suggested it may be related to dental work, but gave no indication of any dental work that was completed. Again, the Veteran’s service treatment records do not show he had any sort of dental procedure or surgery. There is simply no competent evidence in this case that the Veteran’s hepatitis C initially manifested during the Veteran’s active service or due to anything related to the Veteran’s active service. The Board has considered whether a VA opinion is required with regard to the claim on appeal under VA’s duty-to-assist provisions. 38 U.S.C. § 5103A(d) (2012); 38 C.F.R. § 3.159 (c)(4) (2019); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The evidence of record is such that the duty to obtain a medical opinion is not triggered with regard to this claim, because although there is a current disability, there is no in-service incurrence. Accordingly, this claim for service connection for hepatitis C must be denied. The Board has duly considered the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim, so that doctrine is not applicable. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). S. Sorathia Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Adamson, 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.