Citation Nr: 1108005 Decision Date: 03/01/11 Archive Date: 03/09/11 DOCKET NO. 09-01 934 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for malaria. 2. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for hepatitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran had active service from August 1968 to February 1970, including service in the Republic of Vietnam. His decorations include the Combat Action Ribbon. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating action of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, that, in pertinent part, denied the Veteran's application to reopen previously denied claims of entitlement to service connection for malaria and hepatitis. The Veteran filed a notice of disagreement with this decision in June 2006, and the RO issued a statement of the case dated in November 2008. The Veteran filed a substantive appeal dated in January 2009. In November 2010, the Veteran, accompanied by his representative, testified at a hearing before the undersigned Veterans Law Judge, at the local regional office. A transcript of these proceedings has been associated with the Veteran's claims file. In this case, the Board notes that in April 1970 and June 1983, the RO denied entitlement to service connection for malaria and hepatitis, respectively. The Veteran did not file timely notices of appeal to these decisions and they became final. As such, before reaching the merits of the Veteran's claims, the Board must rule on the matter of reopening the claims. That is, the Board has a jurisdictional responsibility to consider whether it is proper for the claims to be reopened. See Jackson v. Principi, 265 F.3d 1366 at 1369 (Fed. Cir. 2001); see also Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The issue of entitlement to a higher evaluation for service-connected post traumatic stress disorder (PTSD) has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. The reopened claims of entitlement to service connection for malaria and hepatitis 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. In an April 1970 decision, the RO denied entitlement to service connection for malaria. The Veteran did not file a timely appeal with respect to this decision and it became final. 2. Evidence received since the April 1970 RO decision relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for malaria. 3. In a June 1983 decision, the RO denied entitlement to service connection for hepatitis. The Veteran did not file a timely appeal with respect to this decision and it became final. 4. Evidence received since the June 1983 RO decision relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for hepatitis. CONCLUSIONS OF LAW 1. The April 1970 rating decision which denied service connection for malaria is final. 38 U.S.C.A. § 4005(c) (1964); 38 C.F.R. § 3.104, 19.118, 19.153 (1970). 2. The evidence received subsequent to the April 1970 rating decision is new and material; and the claim for service connection for malaria is reopened. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.303, 20.1105 (2010). 3. The June 1983 rating decision which denied service connection for hepatitis is final. 38 U.S.C.A. § 4005(c) (1982); 38 C.F.R. § 3.104, 19.118, 19.153 (1982). 4. The evidence received subsequent to the June 1983 rating decision is new and material; and the claim for service connection for hepatitis is reopened. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.303, 20.1105 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act As a preliminary matter, the Board is required to address the Veterans Claims Assistance Act of 2000 ("VCAA") that became law in November 2000. The VCAA provides, among other things, that VA will make reasonable efforts to notify a claimant of the relevant evidence necessary to substantiate a claim for benefits under laws administered by VA. The VCAA also requires VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. In terms of the Veteran's new and material claims, the Veteran must be provided with notice regarding the information needed to reopen the previously denied claims. See Kent v. Nicholson, 20 Vet. App. 1 (2006). In this case, however, as the Board has decided to reopen the Veteran's claims of entitlement to service connection for malaria and hepatitis, no further discussion of the Veterans Claims Assistance Act of 2000 and the implementing regulations is required at this point. II. New and material evidence In an April 1970 decision, the RO denied entitlement to service connection for malaria. The Veteran did not file a timely appeal with respect to this decision and it became final. The RO in April 1970 found that the Veteran's examinations and clinical records were negative for diagnosis of or treatment for malaria. In a June 1983 decision, the RO denied entitlement to service connection for hepatitis. The Veteran did not file a timely appeal with respect to this decision and it became final. The June 1983 RO found that hepatitis was not shown by the evidence of record. The evidence that has been added to the Veteran's claims file since the April 1970 and June 1983 RO decisions consists of private treatment records, the Veteran's testimony before the Board, and the Veteran's statements in connection with his claims. The medical records indicate a past medical history of chronic hepatitis B. The Veteran testified before the Board that he had malaria in service and was treated for this condition at a military hospital In Da Nang, Vietnam. He also testified that he believes that he contracted hepatitis while in the military hospital, and reported that he was diagnosed with hepatitis C shortly after service, in 1971 or 1972. A November 2007 treatment report indicated hepatitis B core antibody was positive, hepatitis B surface antigen was positive, and that hepatitis B surface antibody was negative. This report also indicated that the Veteran was negative for hepatitis C. A September 2007 VA psychiatric evaluation indicated that the Veteran was treated in Vietnam by a medic in the field for infections including malaria and hepatitis C. The evaluation indicated that the Veteran was hospitalized for malaria and hepatitis C in "Dnang City" in 1969. Finally, the Veteran testified that he feels he has residuals of malaria and symptoms of hepatitis, including fatigue and nausea. As a general rule, a claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to a claim that is final. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. The Board observes that a regulatory change with respect to new and material evidence claims has been made which applies prospectively to all claims submitted on or after August 29, 2001. See 66 Fed. Reg. 45,620-30 (Aug. 29, 2001) [codified at 38 C.F.R. § 3.156(a)]. Because the Veteran filed his claim to reopen after this date, the new version of the law is applicable in this case. Under the revised regulation of 38 C.F.R. § 3.156(a), new evidence means existing 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). When determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). In order for the evidence to be sufficient to reopen a previously denied claim, the evidence must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. The Board may then proceed to the merits of the claim on the basis of all of the evidence of record. The evidence that has been added to the Veteran's claims file since the April 1970 and June 1983 RO decisions consists of private treatment records, the Veteran's testimony before the Board, and the Veteran's statements in connection with his claims. This evidence is new in that it had not previously been submitted. These records indicate current diagnoses related to the Veteran's hepatitis claim. The Veteran also testified to treatment for malaria in service and indicated that he believes that he has current residuals of in-service malaria. It is noted once again that the credibility of this evidence is presumed for the limited purpose of reopening the claims. Accordingly, the Board finds that because this evidence addresses elements of the Veteran's claims that were not present in April 1970 and June 1983, respectively, it is considered to be material. This new evidence, when considered by itself or in conjunction with the evidence previously of record, relates to an unestablished fact necessary to substantiate the Veteran's claims and is not cumulative or redundant in nature. Therefore, the evidence is considered to be both new and material and the claims are reopened. 38 C.F.R. § 3.156(a). ORDER The claim of entitlement to service connection for malaria is reopened, and to this extent only, the appeal is granted. The claim of entitlement to service connection for hepatitis is reopened, and to this extent only, the appeal is granted. REMAND A review of the record discloses that additional development is necessary prior to further appellate review. Although further delay is regrettable, the Board finds that the record as it stands is currently inadequate for the purpose of rendering a fully informed decision as to the Veteran's claims. Where the record before the Board is inadequate to render a fully informed decision, a remand is required in order to fulfill VA's statutory duty to assist the Veteran to develop the facts pertinent to the claim. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). In this case, the Veteran testified before the Board that he was diagnosed with hepatitis shortly after service and that he had been treated at the West Roxbury, Massachusetts, VA Medical Center and the Tampa, Florida, VA Medical Center in the 1970s after he was discharged from the service. Records of the Veteran's treatment at these facilities have not been associated with the Veteran's claims file. This matter should therefore be remanded so that records of the Veteran's treatment at these facilities may be associated with the Veteran's claims file. The Veteran also testified that he was treated for two to three weeks at a military hospital in Da Nang, Vietnam, for malaria. The Veteran's service treatment records, associated with his claims file, do not record this hospitalization. Upon remand, the RO should work with the Veteran to identify the hospital and attempt to obtain records of the Veteran's treatment in service at this hospital. Finally, the Veteran reported that he is currently treated by Harvard Vanguard Medical Associates. Records of the Veteran's treatment with Harvard Vanguard should be updated to include treatment records dated since August 2008. In this regard, the Board notes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered to be constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Pursuant to the VCAA, VA must obtain identified outstanding VA and private records. See 38 U.S.C.A. § 5103A(b-c) (West 2002); 38 C.F.R. § 3.159(c). Next, the Board notes that the Veteran's medical records indicate a past medical history of chronic hepatitis B. The Veteran testified before the Board that he believes that he contracted hepatitis while in the military hospital in Da Nang, Vietnam. He testified that he was diagnosed with hepatitis C shortly after service, in 1971 or 1972. A November 2007 treatment report indicated hepatitis B core antibody was positive, hepatitis B surface antigen was positive, and that hepatitis B surface antibody was negative. This report also indicated that the Veteran was negative for hepatitis C. A September 2007 VA psychiatric evaluation indicated that the Veteran was treated in Vietnam by a medic in the field for infections including malaria and hepatitis C. The evaluation indicated that the Veteran was hospitalized for malaria and hepatitis C in "Dnang City" in 1969. Finally, the Veteran testified that he feels he has residuals of malaria and symptoms of hepatitis, including fatigue and nausea. If warranted by the evidence, the Veteran should be afforded a VA examination in connection with the claims. The examiner should review the Veteran's service and post-service medical treatment records and determine whether the Veteran has a current hepatitis disability or current residuals of malaria and, if so, whether either condition is related to his military service. 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC shall take appropriate steps to contact the Veteran and request that he identify all VA and non-VA health care providers, other than those already associated with the Veteran's claims file, that have treated him since service for hepatitis or residuals of malaria. This should include all records of the Veteran's treatment at the West Roxbury, Massachusetts, VA Medical Center and the Tampa, Florida, VA Medical Center, dated since service. This should also include records of the Veteran's treatment with Harvard Vanguard Medical Associates dated since August 2008. Finally, the RO should work with the Veteran to identify the hospital and attempt to obtain records of the Veteran's treatment in service at a military hospital in Da Nang. The aid of the Veteran in securing these records, to include providing necessary authorization(s), should be enlisted, as needed. If any requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file, and the Veteran should be informed in writing. The Veteran may submit medical records directly to VA. 2. The RO should arrange for an appropriate VA examination for the purpose of determining whether the Veteran has a current hepatitis disability or current residuals of malaria and, if so, whether either condition is related to his military service. The claims file must be made available to and reviewed by the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. Based on his/her review of the case, the examiner is specifically requested to offer an opinion as to: (a) Does the Veteran have a current hepatitis disability or current residuals of malaria? If so, state the diagnosis or diagnoses. (b) If the examiner finds that the Veteran has a current hepatitis disability or current residuals of malaria, the examiner should provide an opinion as to whether it is likely, unlikely, or at least as likely as not that any currently diagnosed disorder had its onset during active duty, within one year of active duty, or whether such condition is otherwise related to the Veteran's military service or any incident therein. In offering any opinion, the examiner must consider the Veteran's lay statements regarding the incurrence of his claimed disorders and the continuity of symptomatology. The rationale for any opinion offered should be provided. 3. After completion of the foregoing and undertaking any further development deemed warranted by the record, the Veteran's claim should be readjudicated based on the entirety of the evidence. The RO should consider the provision of 38 U.S.C.A. § 1154(b) in reviewing the Veteran's claims. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). The purpose of the examination requested in this remand is to obtain information or evidence (or both) which may be dispositive of the appeal. Therefore, the Veteran is hereby placed on notice that, pursuant to 38 C.F.R. § 3.655, failure to cooperate by attending a requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). 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. 2010). _________________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs