BVA9504626 DOCKET NO. 92-16 506 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE 1. Entitlement to an effective date earlier than February 1, 1991, for payment of disability pension. 2. Entitlement to service connection for a liver disorder, including hepatitis and cirrhosis. 3. Entitlement to service connection for a chronic acquired psychiatric disorder. 4. Entitlement to service connection for the residuals of a vaccination. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Carolyn Wiggins, Associate Counsel INTRODUCTION The veteran served on active duty from May 1968 until March 1970. This appeal arises from an April 1991 and a December 1991 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri which assigned January 7, 1991, as the effective date of a permanent and total rating for pension purposes and February 1, 1991, as the effective date for payment of disability pension and denied service connection for a liver disorder, including hepatitis and cirrhosis, an acquired psychiatric disorder and the residuals of a vaccination. CONTENTIONS OF APPELLANT ON APPEAL The veteran and his representative maintain that an effective date prior to February 1, 1991, for the payment of disability pension is in order. The appellant contends that service connection should be established for a liver disorder, including hepatitis and cirrhosis, an acquired psychiatric disorder and residuals of a vaccination in that such disabilities had their origins during his period of active service. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against an earlier effective date than February 1, 1991 for a permanent and total rating for pension purposes and service connection for a liver disorder, including hepatitis and cirrhosis, an acquired psychiatric disorder and the residuals of a vaccination. FINDINGS OF FACT 1. On January 7, 1991 the veteran filed a claim seeking entitlement to a permanent and total disability rating for pension purposes. 2. Medical evidence in support of the veteran's claim was received that established that the veteran was permanently and totally disabled for pension purposes. 3. In a rating action in April 1991, the RO found that medical evidence received in January 1991 and verification of wartime service received in March 1991, established the veteran's entitlement to a permanent and total disability rating from January 7, 1991 and entitlement to receive pension benefits effective on the first day of the month following the month in which the rating was granted, February 1, 1991. 4. The veteran's testimony establishes that he has been unable to follow a substantially gainful occupation since he was laid off in February 1986; his claim for pension was not filed until January 1991. 5. The evidence establishes that the veteran did not have a sufficiently incapacitating mental or physical disease or disability, within the first 30 days after February 1986 or file a claim for a permanent and total rating for pension purposes within one year of February 1986. 6. The veteran did not manifest a liver disorder, including hepatitis and cirrhosis, during service and the evidence does not demonstrate the veteran had cirrhosis of the liver within one year of his separation from service. 7. The evidence does not demonstrate that the veteran acquired a psychiatric disorder in service or that a psychosis was demonstrated during the initial post service year. 8. The evidence does not demonstrate that the veteran had residual effects from the vaccinations he received at service entrance or that liver disease is a residual thereof. CONCLUSIONS OF LAW 1. An earlier effective date than February 1, 1991, for the payment of disability pension is not warranted. 38 U.S.C.A. §§ 1502, 1521, 5110 (West 1991); 38 C.F.R. §§ 3.340, 3.342, 3.400 and Part 4 (1994). 2. A liver disorder, including hepatitis and cirrhosis, was not incurred in or aggravated by military service and the service incurrence of cirrhosis of the liver may not be presumed. 38 U.S.C.A. §§ 1101. 1110, 1112, 1113, (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1994). 3. An acquired psychiatric disorder was not incurred in or aggravated by military service and the service incurrence of a psychosis may not be presumed. 38 U.S.C.A. §§ 1101. 1110, 1112, 1113, (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1994). 4. There were no residuals of vaccinations which were incurred in service. 38 U.S.C.A. §§ 1101. 1110, 1112, 1113, (West 1991); 38 C.F.R. § 3.303 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). He has presented a claim which is plausible. The Board is satisfied that all relevant facts have been properly developed. No further assistance to the veteran is required in order to comply with the duty to assist him mandated by 38 U.S.C.A. § 5107(a) (West 1991). I. ENTITLEMENT TO AN EFFECTIVE DATE EARLIER THAN FEBRUARY 1, 1991, FOR PAYMENT OF DISABILITY PENSION. A veteran of a period of war, who is permanently and totally disabled from non-service-connected disability not the result of the veteran's willful misconduct, who meets the service requirements of this section is eligible to receive a pension. 38 U.S.C.A. § 1521 (1991 West). A person shall be permanently and totally disabled if such person shall be considered to be permanently and totally disabled, if such a person is unemployable as a result of disability reasonably certain to continue throughout the life of the disabled person or is suffering from any disability which is sufficient to render it impossible for the average person to follow a substantially gainful occupation, but only if it is reasonably certain that such disability will continue throughout the life of the disabled person and any disease or disorder determined by the Secretary to be of such extent as to justify a determination that persons suffering therefrom are permanently and totally disabled. 38 U.S.C.A. § 1502 (West 1991). The effective date of an evaluation and award of pension based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is the later. However, not withstanding this or any other pertinent provision of the law the payment of monetary benefits based on an award of pension may not be made to an individual for any period before the first day of the calendar month following the month in which the award became effective. If, within one year from the date on which the veteran became permanently and totally disabled, the veteran files a claim for a retroactive award and establishes that a physical or mental disability, which was not the result of the veteran's own willful misconduct, was so incapacitating that it prevented him from filing a disability pension claim for at least the first 30 days immediately following the date on which the veteran became permanently and totally disabled, whichever is to the advantage of the veteran. 38 U.S.C.A. § 5110, 5111 (West 1991); 38 C.F.R. § 3.400 (1994). The veteran filed a claim saying he was totally disabled which was received by the VA in January 1991. On the claim form he circled that he had completed four years of college. He reported that he was last employed as an electronic designer in February 1986. He stated that he was currently unemployed. In support of his claim the veteran submitted private medical records. A March 1979 liver biopsy report contained a diagnosis of portal triaditis, nonspecific. An October 1973 report noted a diagnosis of infectious hepatitis with symptoms of three weeks` duration. A physician's certificate for the Guaranteed Student Loan program was filled out under diagnosis, "cirrhosis of liver, chronic active hepatitis." The physician certified that the veteran was unable to engage in gainful activity due to a medically determinable impairment for a long or indefinite time. He also submitted a report of a liver biopsy and follow up letter from July 1990. In January 1991, a copy of a November 1990 medical report was received indicating liver cirrhosis and chronic active hepatitis since February 1986. In March 1991 he submitted revised medical notes. Based on the submitted medical evidence the RO in April 1991 granted the claim for a permanent and total rating for pension purposes as of the date that the claim for pension benefits was filed in January 1991. The regulations provide that a veteran can file a claim for retroactive benefits within one year of the date he became permanently and totally disabled if he can establish that a physical or mental disability was so disabling that it prevented him from filing a claim for the first thirty days after he became disabled. The veteran stated at his personal hearing in June 1992 that he had been unable to work since February 1986. When questioned as to why he waited from 1986 to 1990 to file a claim the veteran said it was because the doctors were unable to tell what was wrong with him and he did not know he had a fatal disease. He also stated that he was getting a divorce and that he went into a "tailspin" for a couple of years. The regulations suggest that extensive hospitalization will generally qualify as sufficiently incapacitating to prevent the veteran from filing a claim. In this case there is no evidence, including the statements of the veteran, that he was hospitalized in February or March of 1986 or that he was so incapacitated by a mental or physical illness as to be unable to file a claim. II. SERVICE CONNECTION To establish service connection for a claimed disability, the facts as shown by evidence must demonstrate that a particular disease or injury resulting in current disability was incurred during active service or, if preexisting active service, was aggravated therein. 38 U.S.C.A. § 1110 (West 1991). Service connection may also be granted on a presumptive basis for certain chronic disabilities, including cirrhosis of the liver and psychoses, when they are manifested to a compensable degree within the initial post service year. 38 U.S.C.A. § 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. 3.307, 3.309 (1994). A. LIVER DISORDER On service enlistment examination in April 1968, the veteran's abdomen and viscera were noted to be normal. Service medical records in September 1968 reveal the veteran reported having fatigue, nervousness, weight loss and heat intolerance for approximately two months. He reported a history of having a thyroid disorder. A complete blood count was ordered. In January 1969 thyroid studies were noted to be normal. On service separation examination in March 1970 the abdomen and viscera were again noted to be normal. A private record of hospitalization in October 1973 noted an impression of infectious hepatitis. He was admitted to the hospital complaining of fever, right upper quadrant pain and yellowish discoloration of his eyes. He had a three week history of generalized weakness, fever, right upper quadrant pain and dark discoloration of his urine. Apparently, he had been exposed to infectious hepatitis 9 and 1/2 days prior to the day of admission. He denied any blood transfusions within the past two to three months. In March 1979, a record of a private liver needle biopsy revealed a diagnosis of portal triaditis, nonspecific. A July 1990 private medical record of a Hepatitis C antibody test is included in the claims folder. A private pathology report of a liver biopsy in the same month reported a diagnosis of micronocular cirrhosis with chronic active hepatitis with piecemeal necrosis, septal iormation and ductal proliferation and nocular regeneration. A letter from the veteran's private physician stated that the biopsy revealed cirrhosis of the liver whose etiology could include either type C hepatitis, chronic alcohol use or a combination of both. It was recommended that he discontinue alcohol use and enroll in an alcohol rehabilitation program. A statement signed in November 1990 by his private physician stated that the veteran had cirrhosis of the liver and chronic active hepatitis, that was not static. The optimum improvement to be expected was progressive deterioration. In December 1990 a private examination report records that the veteran said he had hepatitis as a child of four. He said he thought this was from a dirty needle used to give him an injection by a doctor making a house call. He denied ever having received blood products. He did share needles when he used IV drugs during the 1960's. He denied any significant toxin exposure. He had drunk 2-3 highballs a day for 15 years. He stated that he thought the process had been going on for over 20 years because liver function abnormalities had been noted on past laboratories. However, none of this was substantiated or documented by the medical records. In February 1991, the veteran's private physician reported having initially diagnosed the veteran as having infectious hepatitis in January 1971 and having treated him at that time. At his personal hearing in June 1992 and in his statement in August 1991 the veteran stated that he was exposed to the blood of another soldier who had attempted suicide. He said that he was ordered to clean up the blood left behind. He stated that he cleaned it up without using gloves. When questioned he said he had open cuts on his hands at the time. A June 1992 statement from the veteran's mother says that the veteran had scalp ringworm at four years of age. He had only the normal childhood diseases prior to service. The veteran has asserted that the fatigue complained of in service was an early symptom of his hepatitis. The service medical records do no include a reference to a diagnosis or findings of or treatment for hepatitis, cirrhosis or any other liver disorder in active service. The first indication of the veteran having hepatitis is in January 1971 after the veteran separated from the service in March 1970. Apparently, chronic active hepatitis was diagnosed in 1986. The first clinical diagnosis of cirrhosis of the liver appears in a private medical record in July 1990, more than ten years after the veteran was separated from the service. There is no indication in the claims folder that the veteran had disabling cirrhosis of the liver within one year of service separation. The veteran has maintained that he contracted hepatitis during service as a result of exposure to the blood of another soldier. He says that the fatigue complained of in service was an early symptom. While the veteran is competent to testify as to his symptoms he is not a medical expert and is not competent to diagnose chronic hepatitis which requires the expertise of a medical professional. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The veteran's representative has requested the that the doctrine of reasonable doubt be applied this case. 38 C.F.R. § 3.102 provides that it is the defined and consistently applied policy of the VA to administer the law under a broad interpretation , consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. The Board has considered the United States Court of Veterans Appeals statements in Stozek v. Brown, 4 Vet.App. 457 (1993) as to weighing the testimony of the veteran in situations where the evidence is in relative equipoise. That case can be distinguished from the veteran's claim since it involved a case in which there were no service medical records. In this case there are service medical records which do not demonstrate that the veteran had a liver disorder in service. The evidence in this case is not so evenly balanced as to invoke the doctrine of reasonable doubt. The veteran's representative has requested that the medical record be reviewed to determine if the etiology of his cirrhosis of the liver is hepatitis or alcohol abuse. In this instance it is irrelevant since service connection has not been established for hepatitis. Service connection for a liver disorder, including hepatitis and cirrhosis, is not established by the evidence. B. ACQUIRED PSYCHIATRIC DISORDER Service enlistment examination in April 1968, noted a normal psychiatric evaluation. He was treated for fatigue in September 1968 and was given a thyroid supplement. He had a history of a thyroid condition but was euthyroid so that the fatigue was felt to be on a psychophysiological basis. In September 1969, service medical records recorded a request for medicine for the veteran's nerves. He reported that he worked on high voltage switches and he had had a near accident which had shaken his self-confidence. He was advised to consult his supervisor about his fear and inability to do his job if his fear persisted. It was suggested that he even request a transfer. In November 1969 he complained of difficulty sleeping, during the past four days since his arrival overseas. He was given chloral hydrate. In December 1969 he reported still having trouble sleeping due to anxiety and having the "jumps". Valium was prescribed. A notation of personal counseling appear on the same date. The medical records note a refill of the Valium six days later. He requested a Valium refill at the end of the month which was refused. The service separation examination noted a normal psychiatric evaluation in March 1970. At his personal hearing in June 1992 veteran reported that while in the hospital in 1986 he was diagnosed with depression or manic depression. The veteran said it was a misdiagnosis by a Dr. Yasum. The evidence does not demonstrate that the veteran acquired a chronic psychiatric disorder in service. He was treated for nerves and given Valium. There was no diagnosis of a psychiatric disorder in service. There is no evidence that indicates that the veteran had a psychosis in service or during the first post service year. The only reference to a psychiatric disorder in the claims folder appears in the veteran's account of what occurred in 1986 after he was hospitalized and lost his job. He states that it was a misdiagnosis and gives no indication that he now has a psychiatric disorder. Continuity of symptomatology after service discharge is not shown. The evidence as to service connection for an acquired psychiatric disorder is not so evenly balanced as to invoke the doctrine of reasonable doubt. Service connection for an acquired psychiatric disorder is not warranted. C. RESIDUALS OF A VACCINATION. In testimony at his personal hearing in June 1992 the veteran reported that he received vaccinations when he entered service. He stated that he had not sought service connection for the residuals of the shots themselves but believed that he may have contracted hepatitis as a result of receiving the vaccinations. Although the veteran stated he intended to include that as part of his claim for service connection for hepatitis he did not specifically withdraw his claim for service connection for residuals of vaccinations. Service medical records do not record any mention of any complaints of, or treatment for the residuals of service entrance vaccination. There is nothing in the file that indicates any residuals of vaccinations received in service. The doctrine of reasonable doubt does not apply in this case since the evidence is not in equipoise. Service connection for residuals of vaccinations is not warranted. ORDER An earlier effective date than February 1, 1991, for the payment of disability pension is denied. Service connection for a liver disorder, including hepatitis and cirrhosis, is denied. Service connection for an acquired psychiatric disorder is denied. Service connection for residuals of vaccinations is denied. SAMUEL E. WARNER Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.