Citation Nr: 18124064
Decision Date: 08/07/18	Archive Date: 08/03/18

DOCKET NO. 06-06 699
DATE:	August 7, 2018
ORDER
Entitlement to service connection for an acquired psychiatric disorder is denied. 
Entitlement to service connection for hepatitis C, to include as secondary to an acquired psychiatric disorder is denied.
FINDINGS OF FACT
1.  Competent and persuasive medical evidence indicates that the Veteran does not have a diagnosis of PTSD related to in-service stressors.
2.  An acquired psychiatric disorder was neither incurred nor aggravated in service.
3.  Hepatitis C did not onset in service and is not related to active service.
CONCLUSIONS OF LAW
1.  The criteria for service connection for an acquired psychiatric disorder are not met.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.301, 3.303, 3.304.
2.  The criteria for service connection for hepatitis C, to include as secondary to an acquired psychiatric disorder are not met.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.301, 3.303, 3.310.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from August 1969 to February 1971.  This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO).  The claims were previously remanded by the Board in January 2009, April 2016, February 2017 and August 2017. 
Service Connection
Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.
 1. Entitlement to service connection for an acquired psychiatric disorder
The Veteran seeks service connection for a psychiatric disorder.  
Service treatment records include reference to psychiatric problems and substance abuse.  In May 1970 symptoms of underlying depression with a tendency to withdraw, thought processes that bordered on autistic, and hallucinations were noted.  The diagnostic impression was psychosocial personality disorder with depressive features and drug abuse.  In November 1970 the Veteran was noted to be using drugs.  
Post-service VA treatment records show that in April 2004 the Veteran was seen for anxiety and depression which had worsened due to marital issues and his wife having stabbed his son.  At that time, the Veteran reported pre-military trauma and onset of anxious symptoms with aggravation of symptoms in Vietnam.  The Veteran reported that severe major depressive symptoms first had onset in the early 1970s after his first divorce and had a duration of 9 months.  The clinician indicated that there was significant and cumulative trauma history that started in childhood, including getting shot by the police, stabbed in a fight, stationed in Vietnam, stabbed by his third wife, and witnessing the stabbing of his son by his wife.  Regarding service, the Veteran served for five months in Saigon where he experienced significant fear from guarding a supply warehouse.  The Veteran also reported being upset at the sight of wounded soldiers and hitting a Vietnamese girl with his truck.  The clinician noted that the Veteran meets the full criteria for major depression and generalized anxiety disorder.  The clinician further noted that the results suggested a rule-out diagnosis of PTSD secondary to childhood and adult trauma. 
In May 2004, the Veteran reported many stressors but that the two that reportedly affected him the most were standing guard over a warehouse and driving a truck which ran off a girl in Vietnam.  He also reported a high level of fear the entire time he was in Vietnam.  Subsequent records in May 2004 and July 2004 VA show a diagnosis of PTSD.
In March 2006 private treatment records, the Veteran was noted to have a history of PTSD from Vietnam.  The clinician diagnosed PTSD, with subclinical comorbid depression and anxiety.
In a letter, the Veteran’s treating VA behavioral health specialist gave an operating diagnosis of anxiety disorder, most probably in the form of PTSD.  The clinician, a licensed clinical social worker, noted that the Veteran was first traumatized by being shot by police officer prior to service and began self-medicating in service to cope with that trauma.  The clinician felt strongly that the Veteran’s PTSD was exacerbated in service because of reported incoming fire during supply runs and due to exposure to mortar and rocket fire while on base.  The Veteran was also noted to be affected by seeing injured or wounded during supply runs to local medical units.  
In May 2011, the Veteran underwent a VA examination.  The examiner noted that treatment records indicate prior diagnoses of PTSD, major depressive disorder and generalized anxiety disorder; however, these diagnoses were not based on comprehensive psychological evaluation or assessment.  The examiner further found that PTSD diagnosis was unrelated to service.  Rather, the examiner noted an Axis I diagnosis of alcohol and opiod dependence in full remission, dysthymic disorder unrelated to military service, and an Axis II of personality disorder, NOS.  The examiner indicated that the depression and anxiety are related to personality style and there is no evidence that it was caused or exacerbated by military service.  Rather, the examiner noted that the record shows childhood difficulty interpersonally, and current distress.  The examiner further posited that any current anxiety and depression may simply be a natural progression of that childhood difficulty.  
In April 2016 the Board remanded the appeal for further opinion, noting that the Veteran experienced fear of hostile or terrorist activity during service and the May 2011 examiner incorrectly reported that the prior PTSD diagnosis was based on non-military stressors.  
The Veteran was afforded another VA examination in March 2017.  The examiner offered a negative nexus opinion, noting the absence of documented traumatic stressor relating to service which meet several of the PTSD criteria.  In an August 2017 Remand, the Board found this opinion inadequate (particularly due to the examiner’s characterization of the Veteran’s treatment history by failing to note a May 2004 continuing assessment for PTSD and a July 2004 noted diagnosis of PTSD).
In August 2017, the RO obtained an addendum opinion.  The examiner reviewed available records again and offered a negative nexus opinion. He opined that it is less likely than not that the Veteran has, at any time during the pendency of this appeal, a confirmed diagnosis of PTSD in conformance with either the DSM-IV (or DSM-5) which is attributable to fear of hostile military activity while on guard duty in Vietnam.  In reaching his conclusion, the examiner considered the various mental health assessments.  First, the examiner noted that the April 2004 assessment does not actually represent a clinical diagnosis of PTSD as there was not enough information at the time to confirm diagnosis.  Also, the examiner indicated that the Vietnam stressor does not conform to Criterion A.  As such, the April 2004 PTSD diagnosis would be based on cumulative history of service and non-service trauma.  The examiner went on to note that later treatment records indicates that a PTSD diagnosis was not confirmed and records do not document a completed PTSD assessment.  The examiner noted that the later diagnosis does not address the issues of whether the Veteran reported stressor is sufficient to meet criterion A for PTSD, whether there is evidence of criteria D or E, and finally, in reaching the PTSD diagnosis, the clinicians did not provide a rationale or accounting of symptoms.  The examiner noted that the conclusions reached in the March 2017 examination remain the same.  
The examiner also determined that the Veteran currently meets the diagnostic criteria for: other specified personality disorder with prominent features of antisocial and paranoid personality disorders; alcohol use disorder, in sustained remission; and unspecified anxiety disorder.  He also noted prior diagnosis of dysthymic disorder and depression, but also noted neither is currently active.  The examiner opined that no psychiatric disability, to include any and all Axis I psychiatric diagnoses rendered since May 2004 (to include dysthymic disorder, panic disorder, anxiety, and adjustment disorder (diagnosed in April 2005)) was caused, aggravated by, or had its onset during the Veteran's period of active service.  The examiner provided a detailed and cogent rationale for his conclusions which included a thorough discussion of the prior diagnoses of PTSD in the record and why were not accurate assessments. 
Based on the foregoing, the Board finds that service connection is not warranted.
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 claimed in-service stressor occurred.  38 C.F.R. § 3.304 (f). A diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125 (a). For cases certified to the Board prior to August 4, 2014, as is the case here, the diagnosis of PTSD must be in accordance with the DSM-IV.
The threshold determination in a claim for service connection for PTSD is whether the Veteran has a current diagnosis.  Based on the August 2017 medical opinion, which the Board finds highly persuasive, the Veteran does not have a current diagnosis of PTSD established in accordance with 38 C.F.R. § 4.125 (a).  Therefore, service connection for PTSD is not warranted.  
With respect to the other diagnosed psychiatric disorders, the August 2017 VA opinion is again the most probative evidence of record concerning whether there is a nexus between such disorders and service.  The examiner determined that they were not caused or aggravated by service, and did not have onset during the Veteran’s period of active service.  The examiner conducted a comprehensive and longitudinal review of the Veteran’s clinical history.  This is especially relevant as the Veteran has an extensive and complicated history of trauma and psychological symptomatology.   
Additionally, the Board notes that service connection for any personality disorder is not warranted.  Personality disorders are not considered a disease or disability within VA’s regulatory framework.  38 C.F.R. § 3.303 (c). 
The Board notes there is some evidence that the Veteran’s service in Vietnam produced some symptoms of fear and worry, but that there is no competent medical opinion showing these in-service symptoms developed into a currently diagnosed psychiatric disorder.  
The Board is cognizant that the Veteran and his former spouse believe he has a psychiatric disorder, to include PTSD, related to service.  However, neither of them have been shown to possess the necessary qualification and experience to competently opine on the matter.  Therefore, their lay opinions on the matter of diagnoses and etiology are not competent or probative.
Finally, service for a substance abuse disorder is not warranted. Generally, service connection for drug and alcohol abuse is precluded in two situations: (1) for primary abuse disabilities; and (2) for secondary disabilities (such as cirrhosis of the liver) that result from primary abuse. 38 C.F.R. § 3.301 (c)(3); Allen v. Principi, 237 F.3d 1368, 1376 (Fed. Cir. 2001). Service connection for substance abuse disorders may only be allowed where there is clear medical evidence that it is the direct result of a service-connected acquired psychiatric disorder.  See Allen v. Principi, 237 F.3d 1368, 1381 (Fed. Cir. 2001). Because the Veteran is not service-connected for any conditions, including a psychiatric disorder, service connection for a substance use disorder on a secondary basis is not appropriate.   
Based on the evidence of record, the weight of the competent and credible evidence is against the claim.  As such, the benefit of the doubt doctrine does not apply, and service connection is not warranted.  See 38 U.S.C. §5107 (2012); 38 C.F.R. §3.102 (2017); Gilbert v. Derwinski, 1 Vet. App.49, 55 (1990). 
2. Entitlement to service connection for hepatitis C, to include as secondary to an acquired psychiatric disorder
The Veteran seeks service connection for hepatitis C.  
Service treatment records note a long history of drug use including intravenous drug use.  In May 1970 the Veteran was evaluated for infectious hepatitis.  He was transferred to a US Army Hospital. In June 1970, laboratory tests revealed evidence of hepatitis.  Discharge diagnoses included hepatitis, serum; and drug abuse.  He was discharged to duty.  A January 1971 discharge examination was negative for hepatitis. 
The Veteran underwent a VA examination in June 1971 in relation to his original claim for service connection.  The examiner noted no effective residual of hepatitis and no other general medical condition.  The examiner found no known recurrence of symptoms. 
In May 2009 VA treatment records, the Veteran was noted to have been diagnosed with hepatitis C in 2003.  The clinician further noted the Veteran’s in-service hepatitis with weakness and jaundice, his intravenous drug use and other risk activities.  The clinician concluded that the Veteran’s intravenous drug use was the most likely risk factor; that it is at least as likely as not that hepatitis C was contracted due to intravenous drug use in service. 
In December 2009, the Veteran underwent a VA examination.  The examiner reviewed the claims file.  The Veteran reported a history of intravenous drug abuse and noted that he used heroin daily while in service; he also reported drug use continued after service.  The Veteran also reported tattoos were received after service.  The examiner noted in-service hospitalization for hepatitis, and a 2003 diagnosis of hepatitis.  The examiner opined that the Veteran’s hepatitis C is not related to service, but is secondary to intravenous drug use. The examiner explained that the hepatitis in service was infectious hepatitis, which resolved in 1970 and is different than the currently diagnosed hepatitis C.  The examiner noted there is no known long-term residual of infectious hepatitis.  The examiner also indicated hepatitis C would not be secondary to hepatitis A as hepatitis C was diagnosed in 2003 some 30 years after hepatitis A was treated.  The examiner also explained that the Veteran has a strong history of intravenous drug use and post-service tattoos.
The Veteran was afforded another VA examination in March 2017.  The examiner noted service treatment record with status post serum hepatitis and the initial diagnosis of hepatitis with need to clarify infectious or serum.  The examiner also noted drug use in service.  The examiner concluded that currently diagnosed liver conditions, to include hepatitis C and cirrhosis, are less likely as not incurred in or caused by hepatitis experienced during service.  The examiner reasoned that the condition in service was noted to resolve without symptoms following convalescence and Veteran continued to use intravenous drugs until 1983.  Moreover, the examiner noted that prior to 1989, hepatitis A or B were identifiable but known as Non- A/Non- B.  Thus, the 1970 diagnosis was related to hepatitis B (serum) and hepatitis C was likely contracted following separation from service due to intravenous drug use and less likely related to service.
Based on the foregoing, the Board finds service connection is not warranted. 
The record shows evidence of a current disability; a diagnosis of hepatitis C was shown during the pendency of the appeal.  However, the competent and probative evidence in this case demonstrates that the Veteran’s hepatitis C is related to drug use before, during and after service; and possibly, post-service tattoos.  The VA examiners’ opinions are persuasive because they have the appropriate training, expertise and knowledge to evaluate the claimed disability.  Moreover, each examiner provided a thorough and cogent rationale, which included consideration of the Veteran’s service history, and his period before and after service.  
There are no competent opinions to the contrary. Although the Veteran relates the current hepatitis C diagnosis to the in-service occurrence of infectious hepatitis, he is not competent to do so and his lay opinion is not probative on the matter.  Furthermore, to the extent that hepatitis C is related to in-service intravenous drug use, compensation shall not be paid if the disability was the result of the person’s own willful misconduct or abuse of alcohol or drugs as is the case here.  See 38 U.S.C. § 1110.  
Finally, service connection is not warranted on a secondary basis because the Board has denied service connection for a psychiatric disorder.  See 38 C.F.R. §3.310.
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As such, the preponderance of the competent and probative evidence weighs against service connection for hepatitis C.  The benefit of the doubt doctrine does not apply.  See 38 U.S.C. §5107 (2012); 38 C.F.R. §3.102 (2017); Gilbert v. Derwinski, 1 Vet. App.49, 55 (1990).
 
D. JOHNSON
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	K. Vuong, Associate Counsel 

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