Citation Nr: 0612641 Decision Date: 05/02/06 Archive Date: 05/15/06 DOCKET NO. 03-32 701 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Whether new and material evidence has been received to reopen the claim of entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G.A. Wasik, Counsel INTRODUCTION The veteran served on active duty from May 1966 to March 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2002 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in March 2003, a statement of the case was issued in September 2003, and a substantive appeal was received in October 2003. The veteran testified at a Board hearing at the RO in March 2005. FINDINGS OF FACT 1. An unappealed September 1989 RO decision denied entitlement to service connection for hepatitis. 2. In October 2001, the veteran submitted a claim of entitlement to service connection for hepatitis C. 3. The evidence added to the record since the September 1989 RO decision relates to an unestablished fact necessary to substantiate the claim for service connection for hepatitis C. CONCLUSION OF LAW Evidence received since the September 1989 RO decision that denied service connection for hepatitis is new and material, and the claim for service connection for hepatitis C is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's original claim of entitlement to service connection for hepatitis was denied by the RO in August 1970. He has attempted to reopen the claim several times, and the RO has denied the claim each time. The most recent prior final of the claim occurred in September 1989. At that time, the RO denied the claim as there was no evidence of hepatitis demonstrated on VA examination. The veteran was informed of the September 1989 RO decision via correspondence from the RO dated in the same month along with his appellate rights. The veteran did not appeal the denial of service connection for hepatitis which became final in September 1990. The law provides that a decision subject to a prior final denial may be reopened by the submission of new and material evidence. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). If the Board determines that the evidence is new and material, the case is reopened and evaluated in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). New evidence is considered to be material where such evidence provides a more complete picture of the circumstances surrounding the origin of the veteran's injury or disability, even where it will not eventually convince the Board to alter its decision. See Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). When determining whether the veteran has submitted new and material evidence to reopen a claim, consideration must be given to all the evidence since the last final denial of the claim. Evans v. Brown, 9 Vet. App. 273 (1996). In Evans, the Court indicated that the newly presented evidence need not be probative of all the elements required to award the claim, but need only tend to prove each element that was a specified basis for the last disallowance. Id. at 284. The evidence of record at the time of the September 1989 rating decision which denied service connection for hepatitis consists of the service medical records, VA and private clinical records, private hospitalization records, and reports of VA examinations. The service medical records reveal that in February 1970, the veteran was found to have probable hepatitis. The veteran's February 1970 separation examination includes the notation that he was mildly jaundiced from hepatitis. A report of a July 1970 VA examination included a pertinent diagnosis of history of hepatitis without residuals. Private hospitalization records reveal that the veteran was hospitalized from March to April of 1971. The discharge diagnosis was chronic persistent hepatitis. A report of a VA examination which was conducted in July 1971 includes a diagnosis of history of hepatitis, residuals not found. Private medical records include a May 1989 record which references the presence of persistent hepatitis. It was noted that the veteran had hepatitis in 1968, which was more than likely hepatitis A when he was in the Army as a medic in Viet Nam. The disability was not linked to the veteran's active duty service. In October 2001, the veteran submitted a request to reopen his claim of entitlement to service connection for hepatitis C. The evidence added to the record subsequent to the September 1998 rating decision which denied service connection for hepatitis consists of some duplicate service medical records, VA clinical records dated in 2000 and 2001, the veteran's testimony, a Risk Factor for Hepatitis Questionnaire completed by the veteran, and a letter from a VA psychiatrist. A June 2001 VA clinical record indicates that the veteran was receiving an injection for hepatitis A. A September 2001 VA clinical record includes an assessment of hepatitis C which was diagnosed five years prior. In April 2003, the veteran completed a Risk Factor Questionnaire indicating that the only risk factor he admitted to was being a health care worker who had been exposed to contaminated blood or fluids. He annotated to report to indicate that he had been an Air Force medic for 4 years. In March 2003, a VA psychiatrist wrote that the veteran had serious health problems including hepatitis C. The author opined that it was quite likely that the veteran had cognitive and mood symptoms related to or exacerbated by the viral infection the veteran had for many years. The veteran testified before the undersigned in March 2005 that he currently has hepatitis which he opined was due to his service as a medic while on active duty. The Board finds that the veteran has submitted new and material evidence to reopen the claim of entitlement to service connection for hepatitis C. The VA clinical records and the report from the VA psychiatrist are competent evidence of the current existence of hepatitis C and the psychiatrist's letter also indicates that the veteran experiences current residuals of the disability. The claim was last denied as there was no competent evidence of record indicating that the veteran had residuals of hepatitis. This evidence addresses one of the specified bases for the denial of service connection, and thus constitutes new and material evidence. See 38 C.F.R. § 3.156(a). Accordingly, the claim is reopened. The Board further finds, however, that additional evidentiary development is required prior to adjudicating the reopened claim of entitlement to service connection for hepatitis C. The additional evidentiary development required is set out in the Remand portion of this decision below. In closing, the Board acknowledges the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), now codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002) and implementing regulations at 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2005). The Board need not consider the question of VCAA compliance in the case presently before the Board since there is no detriment to the veteran in light of the reopening of the claim and remand directed by this decision. Deficiencies in VCAA notification (if any), can be addressed by the RO while the issue on appeal is back before it as a result of this remand. ORDER New and material evidence having been received, the claim of entitlement to service connection for hepatitis C has been reopened. The appeal is granted to that extent only. REMAND The veteran has submitted evidence of record indicating that he has a current diagnosis of hepatitis C and is experiencing residuals of the disability as a result thereof. There is competent evidence of record in the service medical records indicating that the veteran was treated for hepatitis during active duty. The veteran has also opined that he contacted the disability while performing his duties as a medic while on active duty. The veteran's military records demonstrate that he did serve as a medical services specialist while on active duty. The Board finds that the veteran should be afforded a VA examination to determine the nature, extent and etiology of the veteran's hepatitis. The veteran testified before the undersigned in March 2005 that he was diagnosed with hepatitis in 1996 while he was being treated at the McGuire Veterans Hospital in Richmond, Virginia. He also testified that he received some treatment at the Mountain Home Veterans Hospital which was located in Johnson City, Tennessee. These VA records have not been associated with the claims file. The Board finds VA must obtain these treatment records. The veteran also testified before the undersigned that, if further evidence was needed to support his claim, he had boxes of documentation. The Board finds the RO should contact the veteran and inform him that he should submit all evidence in his possession which he thinks might support his claim. Accordingly, the claim of entitlement to service connection for hepatitis C is hereby REMANDED for the following actions: 1. Review the claims file and ensure that there is compliance with the Veterans Claims Assistance Act of 2000, to include the recent holding in Dingess/Hartman v. Nicholson, Nos. 01- 1917 & 02-1506 (U.S. Vet. App. March 3, 2006). 2. Obtain the names and addresses of all medical care providers who treated the veteran for hepatitis C since his discharge from active duty and obtain these records. Regardless of the veteran's response, obtain the veteran's treatment records from McGuire Veterans Hospital in Richmond, Virginia and from Mountain Home Veterans Hospital in Johnson City, Tennessee. 3. Schedule the veteran for a VA examination to determine the nature, extent and etiology of any hepatitis found on examination. The claims folder, to include a copy of this Remand and any additional evidence secured, must be made available to and reviewed by the examiner prior to completion of the examination report, and the examination report must reflect that the claims folder was reviewed. Any indicated studies should be performed. Based upon the examination results and a review of the claims folder, the examiner should provide an opinion as to whether there is a 50 percent or greater probability (as likely as not) that any current hepatitis had its onset in service. The rationale for all opinions expressed must also be provided. 4. The case should be returned to the Board after compliance with requisite appellate procedures. The veteran and his representative have the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). _________________________________________ A. P. SIMPSON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs