Citation Nr: 18124086
Decision Date: 08/07/18	Archive Date: 08/03/18

DOCKET NO. 15-24 885
DATE:	August 7, 2018
ORDER
Entitlement to service connection for Hepatitis C is denied.
Entitlement to service connection for an acquired psychiatric disorder to include post-traumatic stress disorder (PTSD) and major depressive disorder is granted.
REMANDED
Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded.
FINDINGS OF FACT
1. The Veteran’s hepatitis C is not related to his military service.  
2. The Veteran’s acquired psychiatric disability is due to a military sexual trauma while on active duty.
CONCLUSIONS OF LAW
1. The criteria for service connection for Hepatitis C have not been met.  38 U.S.C. §§ 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017).
2. The criteria for service connection for an acquired psychiatric disorder, diagnosed as PTSD and Major Depressive Disorder have been met.  38 U.S.C. §§ 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 4.125 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty in the United States Army from January 1977 to August 1978  
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from May 2012 and April 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  
Service Connection
1. Entitlement to service connection for Hepatitis C 
The Veteran contends that his Hepatitis C is due to his military service.  
In order to establish service connection for the claimed disability, 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).  
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).
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. §§ 1110, 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(a).  38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  
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 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 C.F.R. §§ 3.309.  
Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  Although lay persons are competent to provide opinions on some medical issues, some medical issues fall outside the realm of common knowledge of a lay person.  See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011).  
Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000).  Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale and a basis in objective supporting clinical data.  See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the Veteran, did not provide the extent of any examination, and did not provide any supporting clinical data).
In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others.  Schoolman v. West, 12 Vet. App. 307, 310-11 (1999).  In this regard, 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, supra.  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.  Evans v. West, 12 Vet. App. 22, 30 (1998).  
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).  Lastly, in order to deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518 (1996).
Initially, the Board notes that the Veteran has not been provided a VA examination for this issue.  Although the Veteran has not been afforded a VA examination, the Board finds that an examination for this disability is not necessary to decide this claim.  According to McLendon, an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an “in- service event, injury, or disease,” or that a disease, manifested in accordance with presumptive service connection regulations, occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).  In this case, the record does not reflect any signs or symptoms of Hepatitis C in service nor has the Veteran submitted any evidence to support his contention that he contracted Hepatitis C while on active duty.  Since there is no evidence supporting the Veteran’s claim of an in-service injury or event that caused him to contract Hepatitis C, a VA examination was unnecessary because there is no possible relationship between any remaining residual of Hepatitis C and his military service.  Thus, the Board finds that a VA examination is not warranted for the Veteran’s claim for entitlement to service connection for Hepatitis C.
As to a current diagnosis, the Veteran’s VA treatment history indicates that throughout the course of the appeal, the Veteran’s Hepatitis C was in remission.  See December 30, 2014 VA progress note.  
As to the in-service incurrence, the Veteran’s service treatment records are silent for any signs, symptoms, or treatments for Hepatitis C.  In fact, the Veteran’s separation examination was silent for a diagnosis of Hepatis C.  See July 1978 separation examination. 
Turning to the medical evidence at hand, a medical history taken in December 2014 showed that the Veteran’s Hepatitis C was in remission.  See December 30, 2014 VA progress note.  In addition, the Veteran’s records indicate that he reported that he was diagnosed with Hepatitis C in the early 2000’s and he was treated at that time for that condition.  See February 2, 2015 VA progress note.  Moreover, a medical history in February 2015 was negative for a diagnosis of Hepatitis C.  See February 20, 2015 VA progress note.  Lastly, the Veteran’s VA treatment records reflect that the Veteran’s Hepatitis C with undetectable viral load was treated for forty-eight weeks around the year 1990.  See March 25, 2015 VA progress note.  
In sum, the Board finds that service connection for Hepatitis C is not warranted.  In reaching this conclusion, the Board has reviewed the Veteran’s service treatment records and post-service medical records.  After a review of the record, the most probative evidence of record indicates that the Veteran’s condition is in remission and he does not have a current disability.  Moreover, the Veteran’s service treatment records are silent for this condition and there is no medical evidence to establish an etiological link between any remaining residual of the Veteran’s condition and his active military service.  Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for Hepatitis C, and the benefit of the doubt rule does not apply.
2. Entitlement to service connection for an acquired psychiatric disorder to include post-traumatic stress disorder (PTSD)
The Veteran contends that his psychiatric disability is due to his military service.  
In addition to the previous discussed principles related to service connection, service connection for PTSD requires a medical diagnosis of PTSD 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 claimed in-service stressor occurred.  38 C.F.R. § 3.304(f).
The evidence required to support the occurrence of an in-service stressor varies depending on whether the appellant was engaged in combat with the enemy.  If the evidence establishes that a Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, 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 such veteran’s service, his lay testimony alone may establish the occurrence of the claimed in-service stressor.  38 U.S.C. § 1154(b) (2012); 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 active 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)).
When a PTSD claim is based on in-service personal assault, evidence from sources other than the Veteran’s service records may corroborate the Veteran’s account of the stressor incident.  38 C.F.R. § 3.304 (f)(5) (2016); see also Patton v. West, 12 Vet. App. 272, 277 (1999).  Examples of such evidence include, but are not limited to: records from law enforcement authorities; rape crisis centers; mental health counseling centers, hospitals, or physicians; pregnancy tests, or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. 38 C.F.R. § 3.304 (f)(5).  Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources.  Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes.  Id.
As to a current diagnosis, the Board notes that the Veteran’s medical history contains several acquired psychiatric diagnoses.  The Veteran’s psychiatric disability has been diagnosed as post-traumatic stress disorder and major depressive disorder.  See December 15, 2014 N.V. Ph.D. letter and January 17, 2018 Dr. J. P. report.  
As to the in-service incurrence, the Veteran has reported that he was assigned to the emergency room and he was assigned to ward duty when he was stationed in Germany.  The Veteran stated that when he was working in the hospital, he witnessed service members dying from overdosing on heroin.  The Veteran further stated that he “attempted suicide because he was exposed to witnessing these events in the hospital.”  See April 16, 2012 statement in support of claim.  Moreover, the Veteran stated that his First Sergeant forced himself on him from the first day he arrived in Germany.  The Veteran stated that these unwanted sexual advances “also forced him to attempt suicide.”  See January 18, 2013 statement in support of claim.  
Turning to the Veteran’s service treatment records, in July 1978, the Veteran was admitted for a heroin overdose.  The record reflects that the Veteran experienced a severe heroin overdose and he was diagnosed with antisocial personality that was moderately severe.  The doctor noted that the Veteran’s psychiatric condition was “manifested by repeated acts of impulsive and sometimes criminal nature with very little guilt or learning from his mistakes and in the presence of a superficially charming inter-personal style with which he has been able, up to this point, avoid severe punishment.”  See July 14, 1978 service treatment record.  
In February 2013, the Veteran’s father, who is a doctor, wrote a letter in support of the Veteran’s claim.  The Veteran’s father stated that he has been a medical doctor for more than fifty years, and his son has not been the same person since he returned from the Army.  The Veteran’s father stated that when the Veteran first entered the Army he was very enthusiastic, ambitious, and full of ideas about his military career; however, while serving his country something traumatic must have occurred to him.  The Veteran’s father added that once he returned home the Veteran was not the same person.  The Veteran’s father continued by stating that the Veteran had become introverted, less talkative, and he did not confide in him.  Lastly, the Veteran’s father stated that as the years passed the Veteran’s behavior worsened and that he had been in and out of different types of treatment centers for his behavioral and psychological problems.  See February 21, 2013 statement in support of claim.  
Turning to the medical evidence at hand, the Board notes that the Veteran receives psychiatric treatment from VA and he participates in a military sexual trauma group therapy program.  In the course of his therapy, the Veteran has reported a history of sexual abuse as a child and while he was in the miliary.  Specifically, in February 2014, the Veteran stated that his criminal behaviors made him come to terms with the need of getting help while he was in court undergoing prosecution.  The Veteran reported that since that point in his life, he has been actively involved in therapy groups along with military sexual trauma groups.  The Veteran reported that his immediate supervisor, his First Sergeant, was abusing him by requesting and inviting him to participate in sexual acts.  The Veteran reported he felt compelled to participate in saying “I was young, I was 18, and I didn’t know what was happening.”  The Veteran also reported that he “attempted to commit suicide while stationed in Germany with an overdose of heroin and he was committed for about two weeks.”  See February 18, 2014 VA progress note.  
In December 2014, the Veteran attended a VA psychology consult appointment.  At this appointment, the Veteran reported that he was abused by a priest at age fourteen and he was abused by his sisters from the age of seven to fourteen.  In addition to incurring childhood sexual trauma, the Veteran reported a history of military sexual trauma and that he was victimized by his First Sergeant.  Following this evaluation, the doctor stated that the Veteran did experience psychological traumas when he was abused as a child and in the military.  The doctor concluded his examination by stating that “the Veteran does not appear to be demonstrating active PTSD symptoms at this time related to his MST or childhood victimization.  Many of the Veteran’s cognitive symptoms appear to be related largely to a depressive disorder rather than PTSD.”  See December 30, 2014 VA progress note.  
In addition to reviewing the Veteran’s medical records, the Board acknowledges that several doctors have written letters on behalf of the Veteran.  In December 2014, VA staff psychiatrist M.L. stated that the Veteran is a patient of the Miami VAMC and has been diagnosed with chronic PTSD secondary to military sexual trauma and unspecified psychotic disorder with a rule out of Schizophrenia.  The doctor continued by stating that the “Veteran continues to suffer from his chronic PTSD and his PTSD symptoms are related to the traumatic events that he experienced while in the military.”  The doctor went on to add that the Veteran struggles with chronic sadness, anxiety, recurrent nightmares, emotional detachment, impaired concentration, and irritability.  See Dr. M. L. December 23, 2014 letter.  
Also in December 2014, Dr. N.V. who is a VA clinical staff psychologist, confirmed that the Veteran is in active treatment at VA and he attends a military sexual trauma group.  In addition, the Board notes that the doctor did not comment on a nexus between the Veteran’s military service and his current psychiatric disabilities; however, Dr. N.V. did diagnose the Veteran with PTSD and major depressive disorder with psychotic features.  See December 15, 2014 Dr. N.V. letter. 
In June 2015, Dr. K. V. stated that the Veteran participated in twenty hours of clinical services including group and individual therapy.  The Veteran was treated for schizoaffective disorder, bipolar type, and PTSD.  The doctor added that schizoaffective disorder and PTSD are chronic illnesses and it is recommended that the Veteran continue his treatment at the Miami VA.  Lastly, the doctor opined that “the Veteran’s PTSD is a direct result of events that occurred while in active duty in the military.”  See Dr. K. V. June 1, 2015 letter.  
In January 2018, Dr. J.P. reviewed the Veteran’s claims folder and then offered her opinion on the matter.  After a detailed listing of the Veteran’s medical history, Dr. J.P. stated that based on the records reviewed, it is evident that the Veteran meets the criteria for PTSD.  The doctor also said that it was evident that the Veteran meets the criteria for major depressive disorder.  The doctor opined that “given the records and statements showing an onset of mental health symptoms as the result of the aforementioned stressful events experienced during service, given the records and statements indicating the severity and chronicity of the Veteran’s psychological symptoms until the present, and given the lack of indication that the Veteran had a mental health disorder prior to joining the military, the evidence in the record indicates that it is as least as likely as not that the Veteran’s PTSD and depression are the direct result of the incidents which occurred during his service.”  The doctor concluded her opinion by stating that “his psychological difficulties have persisted until the present day, as evidenced by his statements, reports from treating physicians, as well as the medical records demonstrating a continuity of symptomatology.”  See Dr. J.P. January 2018 private report.  
The Board notes that the Veteran was not afforded the opportunity to attend a VA examination.  That being said, the Board finds that a remand for a VA examination is not necessary because the evidence of record is sufficient to grant the Veteran’s claims, and a remand would only serve to unnecessarily delay final adjudication of this claim.  
In sum, the Board finds that service connection is warranted for the Veteran’s psychiatric disabilities diagnosed as post-traumatic stress disorder and major depressive disorder.  After a review of the record, the Board finds that the available lay statements, his overdose on active duty, his active participation in a military sexual trauma group, and the evaluations by medical personnel have sufficiently corroborated the Veteran’s claim of experiencing an in-service military sexual trauma.  Moreover, the reports provided by the medical personnel in this case have provided a nexus between the Veteran’s in-service MST and his current psychiatric disability.  The Board further finds that the available medical reports are the most probative pieces of evidence of record because these opinions were well-informed, well-reasoned, and thorough.  Consequently, the Board places significant weight on these pieces of evidence because they provided the best insight as to the nature and etiology of the Veteran’s psychiatric disability.  Davidson, supra.  Therefore, the Board finds that the evidence, both positive and negative as to the issue of service connection for an acquired psychiatric disorder, diagnosed as post-traumatic stress disorder and major depressive disorder, is at least in equipoise.  Based on the foregoing and resolving all reasonable doubt in the Veteran’s favor, the Board finds that service connection for these disabilities is warranted.  As no other currently diagnosed acquired psychiatric disorder has been linked to the Veteran’s service, the Board does not find that the evidence supports the grant of any other currently diagnosed acquired psychiatric disorder.  
REASONS FOR REMAND
1. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded.
Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration.
Previously, the Veteran was only service connected for tinnitus, therefore, he did not meet the schedular criteria for a TDIU.  However, as the Board has now granted service connection for an acquired psychiatric disorder, the AOJ must assign a disability rating for such.  Thus, with the assignment of the new rating, it is possible that the Veteran’s psychiatric disability will meet the schedular TDIU criteria. 
Accordingly, the case must be remanded to the RO in order to assign a rating to the Veteran’s psychiatric disability and to readjudicate the claim for a TDIU in light of this newly service-connected disability.
The matter is REMANDED for the following action:
1. Obtain the Veteran’s VA treatment records from January 23, 2016.  
2.  The RO should assign an appropriate disability rating to the Veteran’s service-connected psychiatric disability. 
3.  The RO should undertake any steps deemed necessary to adequately develop the Veteran’s claim for TDIU.  
4.  The RO should then readjudicate the claim for a TDIU.  In so doing, the RO should specifically consider whether referral for an extraschedular evaluation is appropriate.  If the claim remains denied, the RO should issue an appropriate supplemental statement of the case and provide the Veteran and his representative the opportunity to respond.  

 
Michael J. Skaltsounis
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	M. Rescan, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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