Citation Nr: 1342819 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 09-44 111 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for hepatitis (claimed as hepatitis C, or HCV). 2. Entitlement to service connection for hepatitis C. 3. Entitlement to service connection for bilateral hearing loss. 4. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD H. Hoeft, Counsel INTRODUCTION The Veteran served on active duty from May 1970 to May 1972, including a tour in the Republic of Vietnam, and unverified service in the U.S. Army Reserve, from approximately 1975 to 1983. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in December 2007 of a Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran submitted a notice of disagreement in January 2008; a statement of the case was issued in October 2009; and the substantive appeal was received in November 2009, at which time the Veteran requested a Board hearing. The latter hearing request was expressly withdrawn by the Veteran in October 2013. See VA Form 21-4138, and October 2013 Letter from Representative. The claim of service connection for hepatitis was initially denied by the RO in a May 1996 rating decision. The Veteran did not appeal that determination. The Veteran next submitted a request to reopen the previously denied claim for hepatitis in June 2004; that claim was again denied in an October 2004 rating decision. The Veteran did not appeal that determination. The Veteran submitted his most recent request to open the claim for hepatitis in September 2007. In December 2007, the RO reopened the claim and denied it on the merits. Irrespective of the RO's actions during the course of this appeal, the Board has a jurisdictional responsibility to determine whether a claim previously denied by the RO is properly reopened. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Therefore, the Board must decide whether the Veteran has submitted new and material evidence to reopen the claim of entitlement to service connection for hepatitis C. Accordingly, the claim has necessarily been restyled as one for which new and material evidence is required to reopen the claim of service connection, as noted on the first page of this document. The issues of entitlement to service connection for hepatitis C, bilateral hearing loss, and tinnitus, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Service connection for hepatitis C was last previously denied in an October 2004 rating decision; the Veteran was notified of the determination and his rights to appeal, and he did not appeal and new and material evidence was not received within one year of that determination. 2. Evidence received since the last final denial of hepatitis C in October 2004 includes information that was not previously considered and which relates to an unestablished fact necessary to substantiate the claim. CONCLUSIONS OF LAW 1. The October 2004 rating decision denying service connection for hepatitis C is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.204, 20.302, 20.1103 (2013). 2. New and material evidence has been received since the October 2004 rating decision, and the claim for service connection for hepatitis C is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duties to notify and assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). In light of the favorable determination being reached, the Board finds that no further discussion of VCAA compliance is necessary as any error that was committed as to either the duties to notify or assist is harmless. New and Material Evidence- Hepatitis Where a claim has been finally adjudicated, a claimant must present new and material evidence in order to reopen the previously denied claim. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). However, new and material received prior to the expiration of the appeal period will be considered as having been filed with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). In other words, where new and material evidence is received within one year after the initial denial, the denial is not final, and the claim remains pending. Therefore, VA must evaluate submissions received and determine whether they contain new evidence relevant to a pending claim. Id.; see also Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). For the purpose of determining whether new and material evidence has been received, all evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). For claims to reopen that are received on or after August 29, 2001, new evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether new and material evidence has been received, there is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. See Shade v. Shinseki, 24 Vet. App. 110 (2010). VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should consider whether the evidence could reasonably substantiate the claim were the claim to be reopened. Id. at 118. Moreover, the Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. Id. at 120. The Veteran initially sought service connection for hepatitis in January 1996. The RO denied the claim for hepatitis in May 1996 based on a finding that service treatment records were negative for evidence and/or diagnoses of hepatitis C. The Veteran was notified of his appellate rights at the time of the May 1996 rating decision, and he did not indicate any dispute or intent to appeal. Moreover, no additional evidence was received within one year of the denial. As such, the May 1996 rating decision became final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103 (1996 & 2013). The Veteran sought to reopen his claim in June 2004. The RO again denied the claim in October 2004 based on the lack of submission of new and material evidence (i.e., evidence showing that the condition "began during service"). The Veteran was notified of his appellate rights at the time of the October 2004 rating decision, and he did not indicate any dispute or intent to appeal. Moreover, no additional evidence was received within one year of the denial. As such, the May 1996 rating decision became final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103 (2004 & 2013). The Veteran again sought to reopen his claim in September 2009; the RO reopened the Veteran's claim and denied it on the merits in December 2007. The Veteran timely appealed this rating decision and it the subject of the current appeal. The evidence of record at the time of the prior final denial of service connection for hepatitis C in October 2004 included service treatment records (from both active duty and reserve service); outpatient treatment records from the VAMC Houston, dated from 1972 to 2004, to include VA examinations dated in 1993 and 1993, in which the Veteran denied a history of drug abuse; and statements from the Veteran indicating that he was treated for HCV as early as 1972. Since the prior final denial in October 2004, evidence showing possible in-service contraction of hepatitis C has been associated with the claims file. Specifically, in November 2007 and January 2008 statements, the Veteran newly asserted that he was exposed to an infected air gun device used to administer vaccinations while on active duty. In addition to the aforementioned statements, the Veteran submitted a "Risk Factors for Hepatitis Questionnaire" in November 2006, which indicated a positive history of IV drug use, intranasal cocaine use, and a tattoo in 1970 "during service." Lastly, a January 2010 VA examination report notes that the Veteran sustained a puncture wound to the right forearm while on active duty and that he believed this, too, could have been a source of the HCV. The evidence outlined above is "new" in that it was not previously associated with the record. Considering the new evidence together with the prior evidence, and presuming it credible for the purposes of reopening, the evidence relates to an unestablished element of the previously denied claim. Specifically, the evidence relates to whether the currently diagnosed hepatitis C is related to service. As such, the evidence is new and material as to service connection for HCV and the claim is reopened. 38 C.F.R. § 3.156(a). ORDER New and material evidence having been received, the claim of entitlement to service connection for hepatitis C is reopened, and the claim is granted to this extent only. REMAND The Board's review of the claims file reveals that further RO action on this appeal is warranted. Hepatitis C The Veteran contends that his hepatitis C is related to service. The Veterans Benefits Administration (VBA) has indicated that the risk factors for hepatitis C include intravenous (IV) drug use, blood transfusions before 1992, hemodialysis, intranasal cocaine, high-risk sexual activity, accidental exposure while a healthcare worker, and various kinds of percutaneous exposure such as tattoos, body piercing, acupuncture with non-sterile needles, shared toothbrushes or razor blades. VBA Fast Letter 98-110 (Nov. 30, 1998). The following guidance has been published for adjudicating hepatitis C (HVC) claims, which states in part as follows: * Population studies suggest HVC can be sexually transmitted. However, the chance for sexual transmission of hepatitis C is well below comparable rates for HIV/AIDS or hepatitis B infection. . . . * The hepatitis B virus is heartier and more readily transmitted than hepatitis C. While there is at least one case report of hepatitis B being transmitted by an air gun injection, thus far, there have been no case reports of hepatitis C being transmitted by an airgun transmission. * The source of infection is unknown in about 10 percent of acute HVC cases and in 30 percent of chronic HVC cases. These infections may have come from blood-contaminated cuts or wounds, contaminated medical equipment or multi-dose vials of medications. CONCLUSION: The large majority of HVC infections can be accounted for by known modes of transmission, primarily transfusion of blood products before 1992, and injection drug use. Despite the lack of any scientific evidence to document transmission of HVC with airgun injectors, it is biologically plausible. See VBA Fast Letter 04-13 (June 29, 2004). A veteran also may have been exposed to hepatitis C during the course of his or her duties as a military corpsman, a medical worker, or as a consequence of being a combat veteran. Id. The Board points out that there was no test available to detect the presence of hepatitis C until 1989. See VBA Fast Letter 98-110. For compensation claims filed after October 31, 1990, direct service connection may be granted only when a disability was incurred or aggravated in the line of duty, and not the result of the veteran's own willful misconduct or the result of his or her abuse of alcohol or drugs. 38 C.F.R. § 3.301. In this case, the Veteran has current diagnoses of both acute hepatitis C and chronic hepatitis C. See VA Treatment Records, 2011-2012 (Virtual VA). Service treatment records (STRs) from active duty (1970 to 1972) contain no complaints, treatment, or diagnoses of hepatitis C. An October 1971 STR confirms that the Veteran sustained a puncture wound to the right forearm; the wound washed and dressed and the Veteran was given a tetanus shot. The May 1970 entrance examination and the April 1972 separation examination reflect no "identifying body marks, scars, tattoos." A May 1976 "quadrennial" examination (conducted for Reserve service purposes) again reflects no "identifying body marks, scars, tattoos." However, a July 1980 Report of Medical History (conducted for Reserve service purposes) shows that the Veteran had two tattoos. Additionally, an April 1982 Dental Patient Medical History form indicates that the Veteran marked "yes" as to having liver disease/hepatitis. The Veteran has consistently reported that he was initially treated on an outpatient basis for jaundice symptoms and hepatitis in 1972/1973. See January 1996 Statement from Veteran; see also June 1993 General VA Examination. According to a February 1996 records request contained in the claims file, the RO requested all outpatient treatment records from the VAMC Houston, dated from January 1972 to 1996. None of these treatment records showed hepatitis. VA examinations conducted in 1993 and 1994 reflect that the Veteran denied having a history of drug abuse. A private hospital report dated in February 1996 shows a history of hepatitis (type unknown), in remission. VA treatment notes dated from 2006 to 2007 reflect treatment for acute hepatitis C, and note that the Veteran admitted to "shooting cocaine and sharing needles prior to the event." In November 2007 and January 2008 statements, the Veteran asserted that his hepatitis was contracted from an air gun used for inoculations during active duty service. He also stated that he was treated in the early 1970's at the VAMC for hepatitis "prior to any cocaine use." In a November 2007 "Risk Factors For Hepatitis Questionnaire Form" the Veteran admitted to using IV drugs, intranasal cocaine, and having a tattoo in 1970; he denied high risk sexual activity, hemodialysis, sharing toothbrushes/razors, acupuncture with non-sterile needle, and blood transfusions. A September 2009 VA infectious disease note shows "concern for acute hepatitis" with elevation of liver enzymes, jaundice, antibody seroconversion for hepatitis C." It further noted that the Veteran "admits to shooting cocaine IV and sharing needles prior to the event. However, imaging studies...indicated early cirrhosis in March 2009 and that would suggest chronic hepatitis C for longer period of time." The treating physician noted that treatment was initially started with pegasys in October 2005, and that a relapse occurred in August 2006. The Veteran underwent a VA examination in January 2010. The Veteran primarily claimed that his HCV was due to injector inoculations in active service. The examiner noted that the Veteran had been treated by VA for HCV and admitted to cocaine use (nasally) and IV drugs. The Veteran again noted an onset date of 1972 when he was "ill with dark urine," and yellow/jaundiced. The course of treatment was noted as intermittent with remissions. With respect to risk factors, the Veteran admitted to having a tattoo "during service," and using cocaine and IV drugs "after service." He denied all other risk factors. The VA examiner cited to a VA gastroenterology progress note dated on October 6, 2005, during which time the Veteran apparently admitted to "IVDU while in Vietnam." Significantly, that VA treatment is not contained in the claims file. The examiner also noted the Veteran's reports of sustaining a puncture wound to the right forearm in-service (which is confirmed by the STRs). Based on the foregoing, the examiner concluded that HCV was less likely than not a result of inoculation via jet injectors, or the reported puncture of the forearm. The examiner reasoned that the reported puncture involved a nail from a structure damage by a typhoon, and that a nail used in construction would not be contaminated with any infectious body fluids. The examiner further reasoned that "despite numerous claims regarding transmission of hepatitis C via jet injector inoculations being filed, careful review of numerous medical sources indicates there is no credible medical evidence of transmission of any infection to include hepatitis C via the air or jet injector inoculations." Thus, the examiner opined that the Veteran's most likely causal risk factor was IV drug use and sharing of needles, "per medical records this behavior began while in service though the Veteran currently states he did not do IV drugs during service." As an initial matter, it appears that pertinent VA treatment records dated from 2005 are not contained in the claims file/Virtual VA. The October 6, 2005 VA gastroenterology note, in particular, which was cited as the sole rationale for the VA examiner's negative opinion, has not been associated with claims file. The absence of this treatment record (and any other VA treatment records from 2005) frustrates the Board's review of this claim. Indeed, as the Veteran has consistently claimed that he only used IV/intranasal drugs after service (See also VA Examinations from 1993 and 1994, in which Veteran denied a history of drug abuse), the Board is unable to assess the credibility of such statements in light of the missing treatment record(s). As such, upon remand, the RO should request and associate with the claims file and/or Virtual VA, all records of VA treatment from 2005, and specifically, the October 6, 2005, gastroenterology note referenced by the January 2010 VA examiner. Moreover, although the Veteran's entrance and separation examinations do not reflect that he had a tattoo during active duty service (from 1970 to 1972), the July 1980 Report of Medical History (conducted for Reserve service purposes) shows that the Veteran had two tattoos as of that date, and the post-service treatment records consistently cite the Veteran's tattoos as a risk factor for hepatitis. Again, the Veteran has stated that he received the tattoos "during service." In this regard, the January 2010 VA examiner failed to fully discuss the evidence of record, including whether the Veteran's several tattoos carried the same risk of hepatitis C as his years of IV/intranasal drug use, including the numbers of exposures and periods of exposure of each risk factor, and the likely incubation period of hepatitis C following the purported in-service tattoos versus the (purportedly) later risk factor of IV/intranasal drug use. The examiner also failed to comment on the April 1982 Dental Patient Medical History form from Reserve service, which indicated that the Veteran had liver disease/hepatitis prior to that date. Once VA undertakes the effort to provide an examination, it must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303 (2007). In light of the evidence outlined above, the January 2010 VA examiner should provide an addendum opinion if possible, or, if the examiner is not available to do so, the Veteran should be scheduled for a new VA liver disorders examination. 38 C.F.R. § 3.159(c)(4). Hearing Loss and Tinnitus The Veteran contends that he has bilateral hearing loss and tinnitus as result of acoustic trauma sustained during service. His DD Form 214 confirms that he served as a light vehicle driver during active duty service (from May 1970 to May 1972), while service personnel records confirm that he served as a wrecker operator, a section foreman, and a light vehicle and power generator mechanic, during periods of unverified service with the United States Army Reserve (U.S.A.R.), from approximately 1975 to 1983. Service treatment records from active duty demonstrate normal hearing upon entrance and separation examinations in 1970 and 1972, respectively. However, a May 1976 Report of Medical Examination (conducted for quadrennial/reserve service purposes) notes an auditory threshold of 25 decibels (dB) in the right ear at 3000 hertz (Hz). Likewise, the July 1980 Report of Medical Examination (conducted for reserve service purposes) reflects auditory thresholds of 25 dB at 1000 Hz, 30 dB at 3000 Hz, and 35 dB at 4000 Hz in the right ear, and 35 dB at 3000 Hz and 4000 Hz in the left ear. Thus, the May 1976 and July 1980 U.S.A.R. examination reports demonstrate some degree of hearing loss in the right ear at 1000 Hz, 3000 Hz, and 4000 Hz, and in the left ear at 3000 Hz and 4000 Hz. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (the threshold for normal hearing is zero decibels to 20 decibels and higher threshold levels indicate some degree of hearing loss). The Veteran was afforded a VA audiology examination in January 2010, at which time he was diagnosed with bilateral sensorineural hearing loss (note: the audiological findings confirm a bilateral hearing loss disability for VA purposes). See 38 C.F.R. § 3.385. The examiner concluded that the Veteran's hearing loss was not a result of military noise exposure "due to normal hearing at the time of discharge in 1972, and post-military occupational noise exposure." The examiner used similar rationale for finding that tinnitus was not due to military noise exposure, and further cited to the Veteran's reported onset of 1980's/1990's, as well as the frequency of "ringing" complaints (i.e., 2 times per month/1 minute). In this case, the Veteran's service treatment records do not reflect he had a hearing loss disability as defined by 38 C.F.R. § 3.385 while on military duty. Nevertheless, audiological evaluations are of record which indicate evidence of hearing loss pursuant to Hensley, supra, to include quadrennial examinations conducted in May 1976 and July 1980. The January 2010 VA audiological examiner made no mention of these findings in rendering his negative opinion, and instead relied heavily on the absence of hearing loss/tinnitus at separation from active duty service in 1972. Moreover, while the VA examiner additionally cited to the Veteran's post-occupational noise exposure as a truck driver/welder, he made no findings with respect to the type of noise exposure the Veteran was exposed to during his active duty service and approximately 8 years of reserve service (during which time he also served as wrecker/truck driver and mechanic). Once VA undertakes the effort to provide an examination, it must provide an adequate one. See Barr, supra. In light of the evidence outlined above, the January 2010 VA examiner should provide an addendum opinion if possible, or, if the examiner is not available to do so, the Veteran should be scheduled for a new VA audiological examination. 38 C.F.R. § 3.159(c)(4). Accordingly, the case is REMANDED for the following action: 1. Contact the service department, or other appropriate records repository as appropriate, and request verification of the dates of the Veteran's service in the U.S. Army Reserve, including periods of active duty, active duty for training (ACDUTRA), and inactive duty training (INACDUTRA), as well as any additional medical and service personnel records in its possession. Efforts to obtain this information should only end if the evidence, or information, does not exist or further efforts to obtain the information would be futile. 38 C.F.R. § 3.159(c)(2). 2. Obtain all treatment records from the VAMC Houston dated in 2005, and specifically, the October 6, 2005, gastroenterology note referenced by the January 2010 VA examiner, as well as records of VA treatment since August 2012. 3. Thereafter, return the claims file to the January 2010 VA examiner for an addendum opinion regarding the Veteran's hepatitis C. If the January 2010 VA examiner is not available to provide an addendum opinion, or cannot provide such an opinion without resorting to speculation, the Veteran should be scheduled for a new VA liver disorders examination to assist in determining the etiology of his hepatitis C. Any tests deemed medically advisable should be accomplished. The examiner is to review the relevant documents in the Veteran's claims file and offer a medical nexus opinion on the direct service connection question posed below, which includes to state the opinion in terms of the question asked (at least as likely as not), and support the opinion with rationale. Is it at least as likely as not (a 50 percent or higher degree of probability) that the hepatitis C is causally or etiologically related to any period of qualifying service (i.e., AD or ACDUTRA), including tattoos that were purportedly obtained during service? In offering this opinion, the examiner is to comment on and the incubation period of hepatitis C; the significance of the Veteran's differential diagnoses of chronic and acute hepatitis C; the Veteran's competent reports of being treated for hepatitis in as early as 1972/1973; the July 1980 Report of Medical History showing tattoos; the April 1982 Dental Patient Medical History form (Reserve service), which indicated that the Veteran had liver disease/hepatitis; and any other pertinent information associated with the claims file by virtue of this remand. The examiner is also to comment of the relative risk of several in-service tattoos versus numerous post-service incidents of IV drug use/intranasal drug use, and the VA Fast Letter 04- 13, June 29, 2004, which discuss hepatitis C risks. A complete rationale should be given for all opinions provided. 4. Thereafter, return the claims file to the January 2010 VA examiner for an addendum opinion regarding the Veteran's bilateral hearing loss and tinnitus. If the January 2010 VA examiner is not available to provide an addendum opinion, or cannot provide such an opinion without resorting to speculation, the Veteran should be scheduled for a new VA audiological examination to assist in determining the etiology of his bilateral hearing loss and tinnitus. Any tests deemed medically advisable should be accomplished. The examiner is to review the relevant documents in the Veteran's claims file and offer a medical nexus opinion on the direct service connection question posed below, which includes to state the opinion in terms of the question asked (at least as likely as not), and support the opinion with rationale. Is it at least as likely as not (50 percent or greater likelihood) that any current hearing loss and tinnitus initially manifested during any period of qualifying service (i.e., AD, ACDUTRA, or INACDUTRA) or is otherwise related to such service, to include noise exposure therein? The examiner's attention is directed to audiological findings on May 1976 and July 1980 quadrennial examinations. A full rationale (i.e. basis) for all expressed opinions must be provided. The rationale must consist of more than the Veteran's normal hearing at separation from active service in 1972. 5. Readjudicate the claims on appeal. If the benefits sought on appeal are not fully granted, issue a SSOC before returning the case to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs