Citation Nr: 1301741 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 10-18 127 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to service connection for liver failure, including as secondary to service-connected Hepatitis C. 2. Entitlement to service connection for abdominal wall scarring, also including as secondary to the service-connected Hepatitis C. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The Veteran served on active duty from April 1970 to March 1972. This appeal to the Board of Veterans' Appeals (Board) is from an August 2007 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran initially filed these claims for secondary service connection for liver and stomach failure and abdominal scarring in June 2007, and as mentioned the RO denied these claims in the August 2007 rating decision at issue in this appeal. In June 2008, so prior to expiration of the one year the Veteran had for timely appealing the denial of these claims, he stated he wanted to open secondary service connection claims for these same disabilities and, in support of this effort, additional evidence was added to the record. In June 2008 correspondence, he was provided incorrect information notifying him that his claims were previously denied on August 23, 2007, but erroneously indicating the one-year appeal period for contesting that decision did not expire until August 23, 2007, when, in actuality, it should have read 2008 instead of 2007. Thereafter, the claims were readjudicated and denied in a November 2008 rating decision. In May 2009, he again expressed his intent to reopen these claims of entitlement to service connection for residuals of "liver failure" that included an abdominal wall (failure) disorder. A June 2009 rating decision denied service connection for liver failure and abdominal scarring. In response, he filed a timely notice of disagreement (NOD) in September 2009. The RO then sent him a statement of the case (SOC) in February 2010, after receipt of which he filed a timely substantive appeal (VA Form 9) in April 2010 completing the steps necessary to perfect his appeal of these claims to the Board. See 38 C.F.R. § 20.200 (2012). When readjudicating the claims in those November 2008 and June 2009 rating decisions, however, the RO mistakenly required new and material evidence to first reopen the claims. 38 C.F.R. § 3.156. And although those rating decisions reopened these claims on the premise that there was indeed new and material evidence to permit doing this, the RO ultimately continued to deny these claims, so confirmed the prior denials of these claims on their underlying merits after de novo review. But that method of considering these claims was incorrect. A claim becomes final and binding and subject to a motion to reopen only after the period for appeal has expired. As such, any interim submissions before finality attached to the August 2007 rating decision must be considered by VA as part of the Veteran's original claim. See 38 C.F.R. § 3.156(b) (2012); Charles v. Shinseki, 587 F.3d 1318, 1323 (Fed. Cir. 2009); Jennings v. Mansfield, 509 F.3d 1362, 1368 (Fed. Cir. 2007); see also Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). The record shows that his private treatment records were scanned into the Computerized Patient Record System (CPRS) at the Spokane VA Medical Center (VAMC) in June 2008, so within one year of the August 2007 rating decision denying his claims. That evidence was sufficient to continue pursuing his initial claims even though he indicated he was filing new claims. His NOD was received within one year of the November 2008 rating decision that considered this additional evidence. Consequently, the August 2007, November 2008, and June 2009 rating decisions are non-final and stem from his original June 2007 claim. The Board also sees that, in his April 2010 substantive appeal (on VA Form 9), the Veteran requested a hearing at the RO before a Veterans Law Judge of the Board, in other words a Travel Board hearing. He later withdrew this hearing request, however, in May 2012. Since the claims require further development before being decided on appeal, the Board is remanding them to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND The basis of the Veteran's claims are that his liver failure and abdominal wall scarring or failure are complications, so results, of an already service-connected disability, specifically, his Hepatitis C. Service connection is permissible on this alleged secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) and (b). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Medical evidence is generally, though not always, required to associate the claimed condition with a service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Velez v. West, 11 Vet. App. 148, 158 (1998); and McQueen v. West, 13 Vet. App. 237 (1999). The RO tried developing the Veteran's claims by having him undergo a VA compensation examination for a medical nexus opinion concerning this determinative issue of causation (cause-and-effect). 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). See also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The examination request notes his claim for liver and stomach failure and asks the examiner to identify the Veteran's current liver and stomach problems and provide opinions as to whether they are related to his Hepatitis C or derived from a July 2006 motorcycle accident. A review of the October 2008 VA examination report reveals that it is inadequate to decide the claims. Once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The nurse practitioner who performed the October 2008 VA examination did not address the Veteran's current liver problems, merely instead stating that he does not have liver failure. However, an abdominal ultrasound noted in the report, as well as an August 2006 ultrasound, suggest cirrhosis. A November 2009 VA record from an infectious disease consultation also indicates the Veteran has advanced cirrhosis, and an earlier July 2006 medical record similarly notes liver disease. Hence, there is evidence of a current liver disorder that was not addressed by the examiner. See Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328, 1332 (1997) (holding that VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability. But see, too, McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim). A March 2007 VA treatment record indicates the Veteran is receiving disability benefits from the Social Security Administration (SSA). It is unclear whether these SSA records concern his disabilities specifically at issue in this appeal. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (indicating VA need only obtain relevant SSA records, which, according to 38 U.S.C. § 5103A, are those relating to the injury for which the Veteran is seeking VA benefits and have a reasonable possibility of helping to substantiate the claim). But in close or uncertain situations VA should be guided by the principles underlying this uniquely pro-claimant system. VA has a duty to assist Veterans and is required to "fully and sympathetically develop the Veteran's claim to its optimum before deciding it on the merits." McGee v. Peake, 511 F.3d 1352, 1357 (Fed. Cir. 2008) (citation and internal quotation marks omitted). Hence, VA must try and obtain all pertinent records, including SSA records, of which it is put on notice. See Murincsack v. Derwinski, 2 Vet. App. 363, 372 (1992) (recognizing that evidence from the SSA must be considered in a VA decision regarding benefits); see also 38 C.F.R. § 3.159(c)(2) (when attempting to obtain records in the custody of a Federal department or agency, including the SSA, VA must make as many requests as are necessary to obtain relevant records; VA will end its efforts to obtain records from a Federal department or agency only if VA concludes the records sought do not exist or that further efforts to obtain them would be futile). The most recent treatment records in the claims file are dated in September 2011, so from nearly 11/2 years ago. Since the Veteran receives his medical care through VA, and apparently on an ongoing basis, his more treatment records also must be obtained. See 38 U.S.C.A. § 5103A(b-c); 38 C.F.R. § 3.159(c). See also Dunn v. West, 11 Vet. App. 462, 466-67 (1998) and Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (Records generated and maintained by VA facilities that might 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 the records are actually physically in the file). Accordingly, these claims are REMANDED for the following additional development and consideration: 1. Ask the Veteran whether there are any outstanding private treatment records concerning evaluation or treatment of his claimed disabilities. If there are, have him complete and return the necessary authorization form (VA Form 21-4142) permitting VA to obtain his confidential treatment records from each healthcare provider he identifies. Also obtain all outstanding VA treatment records dated since September 2011. If the records identified are not in the custody of a Federal department or agency, then the attempts to obtain them are governed by 38 C.F.R. § 3.159(c)(1), whereas subpart (c)(2) controls if they are. Appropriately notify him if unable to obtain any indentified records. 38 C.F.R. § 3.159(e)(1). 2. Obtain his SSA records, including all medical records that formed the basis of any decision rendered by this other Federal agency concerning his claim for disability-based benefits. If these requested records are unavailable, or the search for them otherwise yields negative results and further attempts to obtain these records would be futile, this must be documented in the claims file and him notified in accordance with 38 C.F.R. § 3.159(c)(2) and (e)(1). 3. After receipt of all additional records, schedule another VA compensation examination for another medical nexus opinion concerning the etiologies of the Veteran's claimed liver disorder and abdominal wall scarring. To assist in making this important determination, the claims file must be made available for review of his pertinent medical and other history. The examination should include any necessary diagnostic testing or evaluation. Based on a physical examination and review of the claims file, the examiner is asked to respond to the following: (a) Identify all liver disorders currently present and those present at any time since the filing of the Veteran's claim in June 2007. (b) With regards to each diagnosed liver disorder, to specifically include cirrhosis, indicate the likelihood (very likely, as likely as not, or unlikely) the disorder is proximately due to, the result of, OR is being aggravated (meaning permanently worsened) by the service-connected Hepatitis C. The examiner must bear in mind that two opinions are required for secondary service connection claims: (i) Is the claimed disorder "caused by" or "due to" the service-connected disability? AND (ii) Is the claimed disorder "aggravated by" the service-connected disability (Allen Aggravation)? Evidence of baseline disability is necessary to establish entitlement to service connection for aggravation of a nonservice-connected condition by a service-connection condition (regulatory change effective from September 2006). An opinion that something "is not related to" or "is not due to"" does not answer the question of aggravation. See Allen, 7 Vet. App. at 448; 38 C.F.R. § 3.310(b). (c) Similarly, medical comment is needed concerning the likelihood (very likely, as likely as not, or unlikely) that any current abdominal wall scarring determined to be present either currently or since the filing of the June 2007 claim either was caused or is being aggravated by the service-connected Hepatitis C. It is imperative the examiner discuss the underlying reasoning or rationale upon which these opinions are based, if necessary, citing to specific evidence in the file supporting his/her conclusions. The examiner is encouraged to provide some definitive comment on this claimed relationship between this alleged liver disability and abdominal wall scarring and the service-connected Hepatitis C. The term "as likely as not" means at least 50 percent probability. It does not however mean merely within the realm of medical possibility, rather, that the weight of medical evidence both for and against a conclusion such as causation and aggravation is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 4. Then readjudicate these claims in light of this and all other additional evidence. If these claims are not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case (SSOC) and give them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of these claims. The Veteran has the right to submit additional evidence and argument concerning these claims the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).