Citation Nr: 18154133
Decision Date: 11/29/18	Archive Date: 11/29/18

DOCKET NO. 16-55 689
DATE:	November 29, 2018
ORDER
Entitlement to service connection for hair loss, to include as secondary to service-connected allergic rhinitis, is denied.
Entitlement to service connection for an acquired psychiatric disorder, claimed as depression, is denied.
FINDINGS OF FACT
1. There is no current diagnosis of hair loss.
2. Veteran’s depression was the result of his own willful misconduct.
CONCLUSIONS OF LAW
1. The criteria for service connection for hair loss, to include as secondary to service-connected allergic rhinitis, have not been satisfied. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.310(a).
2. The criteria for service connection for an acquired psychiatric disorder, claimed as depression, are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty during the Gulf War Era from August 1992 to September 1996. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision. The Veteran filed his substantive appeal (Form 9) in November 2016. The Veteran declined the optional Board hearing.
Service Connection
Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (a) (2017). To establish a right to compensation for a present disability, a Veteran 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, the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).
Alternatively, service connection may be established on a secondary basis. In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); 38 C.F.R. § 3.310 (a).
Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service connected disability. In this instance, the veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310 (b).

HAIR LOSS
The Veteran contends he suffered hair loss which was caused by wearing hard hats while in the Army. The Veteran contends the medication he takes for his service-connected allergic rhinitis is also contributing to the loss of his hair. However, the Board notes the record contains no evidence of a current disability related to hair loss. 
Records from the Veterans Affairs Medical Center (VAMC) San Diego showed a treatment note dated October 09, 2014 stating the Veteran had normal hair growth. A treatment note from the VAMC San Diego dated December 18, 2015 shows the Veteran called in with a concern he had “hair loss for two years, you were getting bald.” Attempts were made to contact the Veteran, but they were unsuccessful and no other mention of hair loss was made.
After review of the lay and medical evidence of record, the Board finds that the weight of the evidence is against a finding of a current “disability” manifested by hair loss. Preliminarily, the Board notes that hair loss is a symptom of a disability and is not considered a disability, in and of itself; therefore, it must be attributed to an underlying disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999); see, e.g., 38 C.F.R. § 4.118, Diagnostic Code 7831 (rating criteria for alopecia areata considers the extent and location of hair loss). Accordingly, no diagnosis of hair loss or a chronic disability subject to hair loss was shown.
The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997). “Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992); McClain v. Nicholson, 21 Vet. App. 319 (2007) (recognizing the disability could arise at any time during the claim); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (recognizing disabilities that occur immediately prior to filing of a claim). Here, the evidence of record shows no diagnosis of a current disability manifested by hair loss at any time during the claim/appeal period; therefore, service connection for hair loss on a direct basis must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.14.
Although the Veteran has also alleged that he has suffered hair loss as a result of his service-connected allergic rhinitis medication, analysis of hair loss under a theory of secondary service connection would not affect the finding of no current disability, and thus would not assist in proving his claim.
For the reasons stated above, the Board finds that the Veteran does not have a current hair loss disability. Since there is no evidence of current hair loss, the preponderance of the evidence is against the claim for service connection. Therefore, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The claim is denied.
DEPRESSION
A review of Veteran’s service treatment records showed no complaints, treatment, or a diagnosis of depression or any other acquired psychiatric disorder. On the Veteran’s Report of Medical Assessment on February 20, 1996 the Veteran reported a history of “depression or excessive worry.”  However, no follow-up notes were made by the examiner.  Furthermore, on the Report of Medical Examination (separation examination) conducted on February 23, 1996, the examiner reported the Veteran’s “psychiatric” as normal and no complaint of depression was made. 
The Veteran’s personnel file shows that a Report of Mental Status Evaluation was conducted on February 29, 1996. The reason for the evaluation was misconduct. The Veteran’s mental evaluation was normal. The Veteran’s mood and affect were unremarkable. The examiner remarked that there was no evidence of an emotional or mental disorder of psychiatric significance to warrant disposition through medical channels. No record of treatment for depression was shown from the time the Veteran left military service in September 1996 until 2013.
On the Veteran’s Report of Medical History dated February 23, 1996, the Veteran checked “yes” to depression or excessive worry. The VA examiner provided a medical opinion that the Veteran’s claimed conditions of alcohol abuse, depression, and sleep disturbances, were at least as likely as not (50% or greater probability) incurred in or caused by the claimed in-service injury, event or illness. 
However, the VA examiner also opined that the Veteran’s unspecified depressive disorder with anxious distress (which includes insomnia/sleep disturbance) was most likely incurred during service with its onset occurring after Veteran’s second alcohol related offense that led to a court martial and general discharge from the Army in 1996. As noted above, the separation exam shows Veteran’s endorsement of depression, and the Veteran first reported he had depression shortly after the offense and consequent disciplinary action that led to his discharge.
The Board is unable to grant service connection based on the VA examiner’s opinion. The opinion linked the diagnosis of unspecified depressive disorder to alcohol related offenses/events in service. 
In addition to the legal standards set forth earlier, service connection is established for disabilities resulting from an injury suffered in service, but no compensation shall be paid if the disability is the result of the veteran’s own willful misconduct. 38 U.S.C. § 1110; see also 38 U.S.C. § 105; C.F.R. § 3.301. The term “service connected” means, with respect to a disability, that it was incurred or aggravated “in the line of duty” in active service. 38 U.S.C. § 101 (16). “In line of duty” means an injury or disease incurred or aggravated during active service and not the result of the veteran’s own willful misconduct or the result of abuse of alcohol or drugs. 38 C.F.R. § 3.1 (m).
While there is a presumption in favor of a finding of in line of duty, if it is determined that an exception does apply, such as willful misconduct or a result of the abuse of alcohol or drugs, and the claim is denied solely on the basis of such exception, it must be established that the denial of the claim was justified by a preponderance of the evidence. 38 U.S.C. § 105 (a) (West 2014); Daniel v. Brown, 9 Vet. App. 348, 351 (1996); Smith v. Derwinski, 2 Vet. App. 241, 244 (1992).
In this case, the preponderance of the evidence shows that the Veteran’s claimed psychiatric disability resulted from the abuse of alcohol.  A September 1995 service record shows that the Veteran was evaluated after he was involved in a fight and diagnosed as having alcohol abuse. 
The Veteran contends his depression started because he was required to be working extra duty seven days a week. However, the extra duty the Veteran performed was punishment due to the Veteran’s own willful misconduct relating to his second alcohol related offense, where Veteran was found to have breached the peace and assaulted a fellow soldier. As noted above, he was diagnosed with alcohol abuse during service.  Accordingly, the Board finds that even though the January 2015 VA opinion stated that the Veteran’s depressive disorder most likely had its onset in-service, service-connection for depressive disorder is unavailable to the Veteran because it was the result of his abuse of alcohol. 
There is no evidence of record showing that Veteran’s depression had its onset during any period of active service outside of Veteran’s willful misconduct or due to anything other than his abuse of alcohol. Therefore, the preponderance of the evidence shows that the Veteran’s claimed psychiatric disability resulted from willful misconduct. Accordingly, service connection is not warranted.
 
R. FEINBERG
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	A. St. Laurent 

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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