Citation Nr: 0813938 Decision Date: 04/28/08 Archive Date: 05/08/08 DOCKET NO. 07-08 657 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim of service connection for Hepatitis. 2. Entitlement to service connection for Hepatitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. B. Cryan, Counsel INTRODUCTION The veteran had active service from March 1974 to March 1976. This case is before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, that denied the veteran's claim of service connection for hepatitis based on a finding that new and material evidence had not been submitted to reopen a previously denied claim. In January 2007, the RO reopened the veteran's previously denied claim. Nevertheless, even if an RO makes an initial determination to reopen a claim, the Board must still review the RO's preliminary decision in that regard. Barnett v. Brown, 8 Vet. App. 1, 4 (1995). In December 2007, the veteran testified at a personal hearing before the undersigned Veterans Law Judge sitting at the RO. A transcript of his testimony is associated with the claims file. The reopened issue of service connection for hepatitis is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In a January 2000 rating decision, the RO denied service connection for hepatitis. A notice of disagreement was not received within the subsequent one-year period and that decision is now final. 2. Evidence submitted since the RO's January 2000 rating decision, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim of service connection for hepatitis, and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has been received since the RO's January 2000 rating decision which denied service connection for hepatitis and the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2007); 38 C.F.R. § 3.156 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Given the favorable nature of the Board's decision on the issue of whether new and material evidence has been received to reopen the previously denied claim of service connection for hepatitis, there is no prejudice to the appellant, regardless of whether VA has satisfied its duties of notification and assistance. In a January 2000 decision, the RO denied service connection for hepatitis, based on a finding that the veteran's claim was not well-grounded. Specifically, the veteran's service medical records showed that the veteran was treated for viral hepatitis during service, but the separation physical examination indicated that the veteran's viral hepatitis had resolved. The RO also noted that the medical evidence of record at that time did not show a current diagnosis of hepatitis. A notice of disagreement was not received within the subsequent one-year period. The appellant contends that his in-service viral hepatitis never resolved and that he experiences symptoms currently that are related to the in-service hepatitis. Additionally, the veteran asserts that he has a current diagnosis of hepatitis and that this is the same disability as the in- service viral hepatitis. Additional evidence has been added to the record, including a current diagnosis of hepatitis, and hearing testimony. Prior unappealed decisions are final. However, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a). When "new and material evidence" is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence means evidence not previously submitted to agency decisionmakers. 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 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). In reaching a determination on whether the claim should be reopened, the reason for the prior denial should be considered. At the time of the prior denial, the RO determined that the veteran did not have a current diagnosis of hepatitis. Since the prior final decision, evidence has been added to the claims file, including a current diagnosis of hepatitis. This evidence, along with the veteran's hearing testimony, suggests that the veteran may have hepatitis that began during service and has continued to the present time. Thus, the additional evidence is new and material and reopening the claim is warranted. ORDER New and material evidence sufficient to warrant reopening a claim of entitlement to service connection for hepatitis having been submitted, the claim is reopened. REMAND Having reopened the claim of service connection for hepatitis, VA now has the duty to notify the appellant as to how to substantiate his claim and to assist him in the development of the claim. As such, VA must obtain relevant records which could possibly substantiate the claim and conduct an appropriate medical inquiry. See Peters v. Brown, 6 Vet. App. 540, 542 (1994); 38 U.S.C.A. § 5107(a). The veteran should be afforded a VA examination to determine the current nature and likely etiology of his hepatitis. In disability compensation (service connection) claims, VA must provide a medical examination [for a nexus opinion, as applicable] when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The veteran should also be afforded additional opportunity to obtain and submit any additional relevant medical records pertinent to his claim for service connection. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file all available VA and/or private medical records concerning treatment received by the veteran for his hepatitis disorder, not already associated with the claims file. 2. Schedule the veteran for a VA examination to determine the current nature and likely etiology of the veteran's current hepatitis. The claims folder must be made available to and reviewed by the examiner in conjunction with the requested examination. The examiner should elicit from the veteran and record a full clinical history referable to the claimed hepatitis. The examiner should identify the specific types of hepatitis with which the veteran is currently infected. Then, the examiner should provide an opinion, with adequate rationale, as to whether it is at least as likely as not (a 50 percent or greater probability) that any current hepatitis, or symptoms therefrom, had its onset during service, and/or is the result of in-service viral hepatitis, based on all of the pertinent VA and private medical evidence in the claims file. In particular, the examiner should consider the x/rays obtained, hearing testimony, the service medical records and VA records, as well as the private medical records and any additional pertinent medical evidence that is obtained and associated with the claims file subsequent to this remand. The examiner must specifically address the veteran's contention that the manifestations of the veteran's in- service hepatitis have continued since service and/or that his current hepatitis is the same hepatitis during service. All findings must be reported in detail and all indicated testing must be accomplished. 3. Following completion of the development requested, readjudicate the veteran's claim. If the benefit sought on appeal remains denied, the veteran and his representative should be provided with a supplemental statement of the case (SSOC), and an appropriate period of time allowed for response. The appellant has 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs