Citation Nr: 1126252 Decision Date: 07/13/11 Archive Date: 07/19/11 DOCKET NO. 08-02 214 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky THE ISSUE Whether new and material evidence has been received to reopen a claim for entitlement to service connection for residuals of hepatitis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. McCarl, Law Clerk INTRODUCTION The Veteran had active service from August 1970 to August 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2005 RO rating decision that determined that new and material evidence had not been received to reopen a claim for entitlement to service connection for residuals of hepatitis (listed as residuals of hepatitis with liver disease, including hepatitis C). The Board observes that a January 2007 RO rating decision addressed, in relevant part, the issue of whether new and material evidence had been received to reopen the Veteran's claim for entitlement to service connection for residuals of hepatitis. The RO determined in the January 2007 decision that new and material evidence had been received to reopen the claim, but denied the claim on a de novo basis. The Board notes, however, that the prior December 2005 RO decision (noted above) was not final. In fact, in July 2006, the Veteran submitted additional medical treatment records in support of his claim. The Board notes that this evidence, received in July 2006, was submitted within one year of the December 2005 RO decision. Therefore, the Board observes that the December 2005 RO decision was not final and that the Veteran's claim as to whether new and material evidence has been received to reopen his claim for entitlement to service connection for residuals of hepatitis has been pending since that time. See 38 C.F.R. § 3.156(b) (2010). The Board also notes that there is no prejudice to the Veteran in addressing the issue on that basis. See Bernard v. Brown, 4 Vet. App. 384 (1993). The present Board decision addresses the issue of whether new and material evidence has been received to reopen a claim for entitlement to service connection for residuals of hepatitis. The issue of the merits of the claim for entitlement to service connection for residuals of 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. By way of an August 1993 decision, the RO reopened and denied the Veteran's claim for entitlement to service connection for residuals of hepatitis on a de novo basis. The Veteran did not appeal. 2. Evidence submitted since then includes statements from private doctors linking current residuals of hepatitis to service. This evidence is not cumulative or redundant, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The August 1993 RO decision that denied entitlement to service connection for residuals of hepatitis is final. 38 U.S.C.A. § 7105 (West 2002). 2. New and material evidence has been received to reopen a claim for service connection for residuals of hepatitis. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The notice requirements of 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) require VA to notify the Veteran of any evidence that is necessary to substantiate all elements of his claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Kent v. Nicholson, 20 Vet. App. 1 (2006); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In light of the favorable determination with respect to whether new and material evidence has been received to reopen a claim for entitlement to service connection for residuals of hepatitis, and the need to remand for additional information with regard to the merits of the issue, no further discussion of VCAA compliance is needed at this time. Analysis A decision of the RO is final, with the exception that a claim may be reviewed if new and material evidence is submitted. If the claim is reopened, it will be reviewed based on all the evidence of record. 38 U.S.C.A. § 5108, 7105 (West 2002); see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the 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 determining if new and material evidence has been submitted, the evidence is generally presumed to be credible. See Kutscherousky v. West, 12 Vet. App. 369 (1999) (per curium). In addition, all of the evidence received since the last final disallowance shall be considered in making the determination. See Evans v. Brown, 9 Vet. App. 273, 283 (1996). The RO initially denied service connection for residuals of hepatitis in December 1990 on the basis that, while the Veteran had evidence of hepatitis in service, residuals of hepatitis were not found at the Veteran's last exam in service, and there was no evidence of any continuing residuals of hepatitis. The evidence considered at the time of the December 1990 decision included the Veteran's service treatment records, which showed that the Veteran was diagnosed with and hospitalized for hepatitis in October 1973. By way of an August 1993 decision, the RO reopened and denied the Veteran's claim for service connection for residuals of hepatitis on a de novo basis. While the record then contained a June 1993 VA examination report diagnosing the Veteran with residuals of hepatitis, the RO found that service connection was not established for residuals of hepatitis because the examination did not "show any symptoms or findings related to the in-service condition which has resolved without any current disability." The evidence considered at the time of the August 1993 RO decision included the Veteran's service treatment records (which showed that the Veteran was diagnosed with and hospitalized for hepatitis in October 1973) and a June 1993 VA examination report (which included a diagnosis of residuals of hepatitis). Neither of these decisions were appealed and are considered final. 38 U.S.C.A. § 7105. The evidence received since the August 1993 RO decision includes letters from two private physicians, private treatment records, and a VA examination report. In a July 2006 letter, B. Cecil, M.D., reported that he had reviewed the RO's December 2005 rating decision and the Veteran's military records. Dr. Cecil stated that the Veteran had evidence of active hepatitis C with liver damage. Significantly, Dr. Cecil stated that [i]t is more likely than not that he acquired this infection while in the military. He has no history of drug abuse or blood transfusion. . . . [The Veteran's] blood tests show evidence of hepatitis A, B, and C and it is more likely than not that all three were acquired during military service. In a February 2007 letter, J. Stephens, M.D., stated that the Veteran was diagnosed with viral non-A, non-B hepatitis while in service and that such condition was recognized as hepatitis C in 1992. Dr. Stephens reported that hepatitis C as an entity unto itself was not named until 1989, and that until that time it was called non-A, non-B hepatitis. Dr. Stephens concluded that the Veteran's hepatitis diagnosis in service would support a finding that he had hepatitis C. Dr. Stephens indicated that hepatitis C was the diagnosis found on active duty, and that it continued to be a problem for the Veteran presently. The Board observes that at the time of August 1993 RO decision, there was no probative evidence specifically indicating that the Veteran had current residuals of hepatitis due to or aggravated by his period of service. The Board notes that the July 2006 letter written by Dr. Cecil and the February 2007 letter written by Dr. Stephens specifically indicate that, after at least some review of his medical records, the Veteran has current residuals of hepatitis that are related to service. This evidence will be considered credible for the purpose of determining whether new and material evidence has been considered. The Board finds, therefore, that the July 2006 letter written by Dr. Cecil and the February 2007 letter written by Dr. Stephens are new and material evidence sufficient to reopen the claim. This evidence is not cumulative or redundant, it relates to an unestablished fact (a current disability with nexus to service) necessary to substantiate his claim, and raises a reasonable possibility of substantiating the claim. New evidence is sufficient to reopen a claim if it contributes to a more complete picture of the circumstances surrounding the origin of the Veteran's injury or disability, even where it may not convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The July 2006 letter written by Dr. Cecil and the February 2007 letter written by Dr. Stephens were not addressed by the RO in August 1993; such evidence is new and material, and thus the claim for service connection for residuals of hepatitis is reopened. This does not mean that service connection is granted. Rather, additional development of evidence will be undertaken (see the below remand) before the issue of service connection for residuals of hepatitis is addressed on a de novo basis. Manio v. Derwinski, 1 Vet. App. 140 (1991). ORDER New and material evidence having been submitted, the claim for service connection for residuals of hepatitis is reopened, and to this extent only, the benefit sought on appeal is granted. REMAND The Board finds that there is a further VA duty to assist the Veteran in developing evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran contends that he has residuals of hepatitis that are related to his period of service. He specifically alleges that his current residuals of hepatitis, which he claims he has suffered from since service, are a result of his diagnosed hepatitis incurred during service. The Veteran's service treatment records show treatment for hepatitis. In an October 1973 hospital admission note, the examiner diagnosed the Veteran with hepatitis with jaundice. In an October 1973 discharge summary, the examiner diagnosed the Veteran with viral hepatitis, stating that he was HAA positive. In a November 1973 hospital narrative summary, the examiner noted the Veteran was hospitalized for 30 days after presenting with decreased energy, loss of appetite, and darkening of his urine and eyes. As reported to the examiner, the Veteran denied the use of any IV drugs, but did state he had had close contact with a patient who was recently hospitalized with hepatitis. The discharge diagnosis was viral hepatitis, HAA positive, improved. In a July 1977 treatment record, the examiner noted that the Veteran still had elevated liver enzymes levels. The assessment included "rule out chronic active hepatitis with encephalopathy", and "rule out alcohol hepatitis with encephalopathy." In an August 1977 treatment record, the examiner reported that some of the Veteran's liver enzyme levels were "upper limits normal," and that one enzyme, SGOT, was still mildly elevated but returning to normal levels. The examiner assessed these results as secondary to the Veteran's alcohol use. In a May 1979 treatment report, the examiner again found objective findings of the Veteran's elevated liver enzyme levels. The examiner stated that the Veteran may have chronic active hepatitis. In an August 1979 treatment note, the examiner assessed the Veteran as having "slowly resolving hepatitis," and that if the Veteran continued to lose weight and reduce his alcohol intake, his liver enzyme levels should return to normal. An April 1980 treatment note indicated that the Veteran was being followed by a physician for his hepatitis. The examiner stated that the Veteran's physical exam was normal except for slight enlargement of the liver. In an October 1980 treatment note, the examiner stated that the Veteran was not eligible for the drug Antabuse "because of apparent liver damage (i.e. patient had infectious/chronic hepatitis)." In an October 1986 gastroenterology clinic note, the examiner stated that the Veteran's liver enzyme levels remained elevated, and doubted that the elevated levels were due to chronic hepatitis B given the Veteran's lab results. The examiner stated that the Veteran's condition may be due to non-A, non-B hepatitis. The Veteran filed a claim for entitlement for service connection for liver damage due to hepatitis in August 1990, the same month he separated from service. Post-service private treatment records and VA examination reports show treatment for residuals of hepatitis, including hepatitis C. In a June 1993 VA examination, the examiner reported that the Veteran stated he believed the only residual from hepatitis was elevated liver enzyme levels. The examiner diagnosed the Veteran, among other things, with residuals of hepatitis. In a June 2003 private treatment note, the examiner reported that the Veteran's lab results were positive for hepatitis C, but that it was not currently symptomatic. In a July 2006 letter, B. Cecil, M.D., reported that he had reviewed the RO's December 2005 rating decision, as well as the Veteran's military records. Dr. Cecil stated that the Veteran had evidence of active hepatitis C with liver damage. Significantly, Dr. Cecil stated that [i]t is more likely than not that he acquired this infection while in the military. He has no history of drug abuse or blood transfusion. . . . [The Veteran's] blood tests show evidence of hepatitis A, B, and C and it is more likely than not that all three were acquired during military service. In a January 2007 VA liver examination, the examiner diagnosed the Veteran with hepatitis C with liver damage. The examiner reported that the Veteran's current hepatitis C with liver damage was less likely as not (less than 50 percent probability) aggravated by the Veteran's hepatitis A, which the Veteran incurred in service. The examiner provided the following rationale: "[I]n military he did have an episode of acute hepatitis, but he had a positive test for hepatitis A 1973. Therefore, the current Hep C is less likely as not (less than 50/50 probability) caused by or the result of hepatitis in the military." The examiner stated that he had reviewed the Veteran's claims file, as well as the Veteran's service and private treatment records. The Board observes that the VA examiner did not include in his rationalization any mention of the July 2006 letter written by Dr. Cecil, or the Veteran's service treatment records which stated that he may have had non-A, non-B hepatitis. The Board also notes that the VA examiner did not discuss what precise residuals the Veteran currently had from any type of hepatitis, to include hepatitis A and/or C. In a February 2007 letter, J. Stephens, M.D., stated that the Veteran was diagnosed with viral non-A, non-B hepatitis while in service and that such condition was recognized as hepatitis C in 1992. Dr. Stephens reported that hepatitis C as an entity unto itself was not named until 1989, and that until that time it was called non-A, non-B hepatitis. Dr. Stephens concluded that the Veteran's hepatitis diagnosis in service would support that he had hepatitis C. Dr. Stephens indicated that hepatitis C was the diagnosis found on active duty, and it continued to be a problem for the Veteran presently. The Veteran should be afforded a VA examination with the following goals: to ascertain whether or not he currently has hepatitis (and if so, which type); to identify any and all residuals of hepatitis (as opposed to any similar liver problems due to alcoholism or other conditions); and to obtain a clear medical opinion, with rationale, as to whether any current hepatitis, or hepatitis residuals are related to service. Prior to the examination, any outstanding records of pertinent medical treatment should be obtained and added to the record. Accordingly, the case is REMANDED for the following actions: 1. Ask the Veteran to identify all medical providers who have treated him for hepatitis, or residuals of hepatitis, since his separation from service. After receiving this information and any necessary releases, contact the named medical providers and obtain copies of the related medical records which are not already in the claims folder. 2. Schedule the Veteran for a VA examination by a hepatology or gastroenterology specialist to determine whether he suffers from hepatitis or chronic residuals of hepatitis, to include hepatitis C. The nature and severity of any such current disability or residuals of hepatitis should be identified. The examiner should be asked to provide an opinion as to whether any hepatitis disorder or residuals are related to his military service. The claims folder must be provided to and reviewed by the examiner in conjunction with the examination. The examination should diagnose all current residuals of hepatitis A, B, and/or C (to include any liver damage). The examiner should be sure to illicit from the Veteran, and from review of the file, an accounting of all risk factors the Veteran may have had for contracting any form of hepatitis, to include hepatitis C. All tests deemed necessary should be conducted. Based on a review of the claims file, examination of the Veteran, and generally accepted medical principles, the examiner should provide a medical opinion, with adequate rationale, as to whether the Veteran currently suffers from hepatitis or any residuals of hepatitis A, B, and/or C (to include any liver damage), and if so, whether it is at least as likely as not that any such disorder is related to service. The examiner should also specifically comment on the opinions of Dr. Cecil and Dr. Stephens, as well as the opinion in the January 2007 VA examination report. 3. Thereafter, readjudicate the Veteran's claim for entitlement to service connection for residuals of hepatitis, to include hepatitis C with liver damage. If any benefit sought remains denied, issue a supplemental statement of the case to the Veteran and his representative, and provide an opportunity to respond before the case is returned to the Board. The purposes of this remand are to ensure notice is complete, and to assist the Veteran with the development of his claim. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. 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). ______________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs