Citation Nr: 1502307 Decision Date: 01/16/15 Archive Date: 01/27/15 DOCKET NO. 12-24 082A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for hepatitis C. 2. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for psychiatric disability and if so whether the reopened claim should be granted. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active duty from February 1976 to August 1977. This appeal comes before the Board of Veterans' Appeals (Board) from January 2010 and February 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. Although the appealed February 2010 rating decision did not address a claim for any psychiatric disorders other than PTSD, the Board has expanded the issue to include all psychiatric disorders. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The record before the Board consists of the physical claims files and electronic records within Virtual VA. The Veteran testified before the undersigned at a videoconference hearing in July 2013; a transcript is of record. The issues of entitlement to service connection for psychiatric disability and hepatitis C are addressed in REMAND that follows the below ORDER. FINDINGS OF FACT 1. The Veteran did not September 1986 rating decisions denying service connection for psychiatric disability or submit any pertinent evidence within the appeal period. 2. The evidence received after the appeal period includes evidence that is not cumulative or redundant of that previously of record and relates to an unestablished fact necessary to substantiate the claim. CONCLUSION OF LAW New and material evidence has been presented to reopen a claim of entitlement to service connection for psychiatric disability. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION Legal Criteria Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b) , 7105(c) (West 2014). An exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which, "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Analysis Service connection for a psychiatric disability was denied by an RO decision in July 1986. The denial was continued in a September 1986 rating decision. Service connection was denied because the evidence failed to establish the presence of psychiatric disability either in service or following service. The Veteran did not appeal either decision. The Veteran failed to submit any pertinent evidence within the appeal period. The evidence received subsequent to the appeal period includes the record of a January 2010 psychological treatment intake assessment showing a diagnosis of an adjustment disorder with anxious features, and relating the Veteran's anxious symptoms to a self-reported traumatic incident in service. This evidence is not cumulative or redundant of the evidence previously of record. Moreover, it relates to an unestablished fact necessary to substantiate the claim. Therefore, it is new and material, and reopening of the claim is in order. ORDER The Board having determined that new and material evidence has been received, reopening of the claim of entitlement to service connection for a psychiatric disability is granted. REMAND Hepatitis C The Veteran has alleged that he contracted hepatitis C through air gun inoculation in service. At his July 2013 hearing before the undersigned, in reference to potential avenues for contracting hepatitis C, the Veteran provided contradictory statements concerning whether he had used intravenous illicit drugs, at first testifying that he only had contact with needles when he was inoculated in service and never using drugs with needles. He subsequently asserted that he was inoculated by air gun in service when so questioned by his representative. He then conceded, when confronted at the hearing with the fact that treatment records provided a history of intravenous drug use and snorting cocaine, that he had indeed previously snorted cocaine and had previously "a few times" used intravenous illicit drugs. He qualified this changed narrative by asserting that he had only used intravenous drugs with "a brand new needle." (hearing transcript, p. 12) Also at the hearing, the Veteran testified that his hepatitis C was diagnosed when he was first tested for it in approximately 2009. VA treatment records in September 2009 reflect a diagnosis of hepatitis C and the Veteran's self-report of using intravenous illicit drugs in 1982, and using cocaine intra-nasally. Based on the Veteran's changed narrative in hearing testimony, the Board considers the Veteran's assertion that he only used a new needle when using illicit intravenous drugs to be of little credibility. The Board thus recognizes intravenous drug use as a possible avenue for the Veteran's contracting hepatitis C. However, the VA Secretary has recognized air gun inoculation as a "biologically plausible" transmitter of hepatitis C. See VBA Fast Letter 04-13 (June 29, 2004). Thus, both the air gun inoculations in service and the Veteran's intravenous drug use following service are potential avenues for contracting hepatitis C. An examination should be obtained to address the relative likelihood of contracting hepatitis C in service versus after service by these means. Psychiatric Disability At his July 2013 hearing, the Veteran testified to witnessing a fellow soldier whom he did not know cut in half by a cable when an airplane landed on the USS Kitty Hawk sometime in 1977 in the Pacific Ocean on a cold day most likely in the winter. He denied knowing anyone from service and being aware of any evidence which could serve to corroborate the incident. The Veteran also testified to witnessing a fellow soldier being blown off the ship and being saved. This is notably a changed narrative from the Veteran's written submission in October 2009, when he asserted that the soldier who was blown off the ship was 'pronounced dead.' Following the Veteran's October 2009 statement the RO made a stressor query to the JSRRC concerning a fellow being blown off ship in July 1977, and the reply indicates that two soldiers were blown off the USS Kitty Hawk that month and both were recovered by rescue swimmers and by helicopter. The RO in an April 2012 Statement of the Case noted this information from JSRRC contradicted the Veteran's report of a fellow soldier being pronounced dead following being blown overboard. The Veteran may have changed his narrative in light of this JSRRC report. While the Veteran in his October 2009 submission also reported that he witnessed a fellow soldier cut in half by a cable, the RO made no query to the JSRRC for verification of that incident. The RO must attempt to verify this reported incident upon remand. Also in his July 2013 testimony, the Veteran asserted that he had nightmares of himself being blown off the ship, and that he was receiving psychiatric treatment exclusively at VA facilities. In a request for assistance from his U.S. Senator and received by VA in July 2014, the Veteran asserted that he "almost died" in service, though he failed to provide additional relevant details except to note "Vietnam." The Veteran has not elsewhere alleged almost dying in service, and absent additional details there would not appear to be a specific stressor to be verified. The record does not reflect that the Veteran served in Vietnam or that he had service in the Vietnam Era. The Veteran has testified to being diagnosed with PTSD, but such a diagnosis is not reflected in treatment records obtained. Upon a VA psychological intake evaluation for treatment purposes in January 2010, the clinician diagnosed polysubstance dependence in partial remission, and adjustment disorder with anxious features. The clinician opined that the Veteran exhibited, "a limited range of anxiety symptoms related to his military trauma." The trauma in question noted in the report was witnessing a fellow soldier being blown overboard when aboard the USS Kitty Hawk. The Veteran's above-noted changed narrative following VA receipt of a JSRRC report substantially calls into question the validity of the trauma relied upon by the clinician in January 2010. In light of these circumstances, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. Provide the Veteran all required notice in response to the claim for service connection for psychiatric disability other than PTSD. 2. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims. 3. Any indicated stressor development should be undertaken. This should include requesting service department verification of the Veteran's report of having witnessed a fellow soldier cut in half by a cable when an airplane landed on the USS Kitty Hawk sometime in 1977 while in the Pacific Ocean on a cold day most likely in the winter. 4. Thereafter, the Veteran should be afforded a VA examination by a psychiatrist or psychologist. The RO / AMC should provide a statement to the examiner of any confirmed in-service stressors. All pertinent records must be made available to and reviewed by the examiner. Any indicated tests or studies should be performed. The examiner is to be advised that the Veteran has provided conflicting narratives in the course of his appeal, and hence his reports of any stressors or traumatic incidents in service, or of past symptoms, treatment, or diagnosis, should not be accepted as valid unless there is independent corroboration. The examiner should identify all acquired psychiatric disorders that have been present during the period of the claim. The examiner should state an opinion as to whether there is a 50 percent or better probability that the Veteran has PTSD due to a confirmed in-service stressor, or due to a stressor which relates to "fear of hostile military or terrorist activity." The examiner should address in detail whether a confirmed in-service stressor supports a diagnosis of PTSD, whether the Veteran's symptoms relate to that in service stressor, and whether the criteria for a diagnosis of PTSD are met. If a diagnosis of PTSD is not made, the examiner should explain why the Veteran does not meet the criteria for the diagnosis. With respect to each additional acquired psychiatric disorder present during the period of the claim, the examiner should state an opinion as to whether there is a 50 percent or better probability that the disorder is etiologically related to the Veteran's active service. The rationale for all opinions expressed must also be provided. If the examiner is unable to provide any required opinion, he or she should explain why. 5. The Veteran also should be afforded a VA examination by a physician with sufficient expertise to determine the etiology of the Veteran's hepatitis C. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests or studies should be performed. The examiner is to be advised that the Veteran has provided conflicting narratives in the course of his appeal, and hence his reports of any possible avenues for contracting hepatitis C should not be accepted as valid unless there is independent corroboration. However, the Veteran's report of intravenous drug use and intranasal cocaine use following service should be accepted as valid, as declarations against interest. His qualifying statement that he only used "a brand new needle" for such intravenous drug use should not be accepted, because this additional qualifier is inherently self-serving and is not otherwise supported by the record. The examiner should provide an opinion as to whether it at least as likely as not (50 percent or greater probability) that in-service air gun inoculations played a material causal role in the Veteran's development of hepatitis C. The rationale for the opinion must also be provided. If the examiner is unable to provide the required opinion, he or she should explain why. 6. The RO or the AMC should also undertake any other development it determines to be warranted. 7. Thereafter, the RO or the AMC should readjudicate the Veteran's claims. If any benefit sought on appeal is not granted to the Veteran's satisfaction, the RO or the AMC should provide the Veteran and his representative with a Supplemental Statement of the Case and afford them an appropriate opportunity to respond before returning the case to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs