Citation Nr: 1302272 Decision Date: 01/22/13 Archive Date: 01/31/13 DOCKET NO. 10-08 687 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for hepatitis C and, if so, whether service connection, to include as secondary to service-connected herpes infection of the mouth and lips with erythema multiform, is warranted. 2. Entitlement to a compensable rating for herpes infection of the mouth and lips with erythema multiform. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARINGS ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The Veteran served on active duty from April 1973 to April 1977. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The rating decision continued the noncompensable rating for the Veteran's service-connected herpes infection; and denied reopening the Veteran's claims for entitlement to service connection for hepatitis C; entitlement to nonservice-connected pension benefits; and entitlement to special monthly pension benefits. The Board observes that a June 2006 rating decision initially denied the Veteran's claims for service connection for hepatitis C; entitlement to special monthly pension; nonservice-connected pension; and a compensable rating for herpes infection. The Veteran entered a notice of disagreement (NOD) with such decision in July 2006 and a statement of the case was issued in October 2006. The Veteran subsequently submitted an untimely May 2008 VA Form 9. In a June 2008 letter, the RO informed the Veteran that the May 2008 VA Form 9 was untimely and, therefore, would be treated as a claim to reopen the issues. In March 2009 correspondence, the Veteran requested that the issues regarding entitlement to nonservice-connected pension and entitlement to special monthly pension be withdrawn from the appeal. Consequently, such issues are not properly before the Board. The Veteran and his spouse testified at a local hearing at the RO before a Decision Review Officer (DRO) in December 2009, and at a Board hearing before the undersigned Veterans Law Judge sitting at the RO in May 2012. Transcripts of both hearings have been associated with the claims file. At the May 2012 Board hearing, the Veteran submitted additional evidence with a waiver of initial RO consideration. 38 C.F.R. § 20.1304(c) (2012). Therefore, the Board may properly consider such newly received evidence. Finally, a May 2012 rating decision denied the Veteran's claims for entitlement to service connection for a right eye condition and genital herpes. The Veteran has not submitted a notice of disagreement with the rating decision at this time, and these issues are not presently before the Board. The reopened claim of entitlement to service connection for hepatitis C, and the compensable rating claim are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. A June 2006 rating decision denied the Veteran's claim of entitlement to service connection for hepatitis C. Although the Veteran filed a timely NOD, he failed to submit a timely substantive appeal (VA Form 9) after the issuance of the statement of the case. 2. Evidence added to the record since the final June 2006 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for hepatitis C. CONCLUSIONS OF LAW 1. The June 2006 rating decision that denied the Veteran's claim of entitlement to service connection for hepatitis C is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2005) [(2012)]. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for hepatitis C. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As the Board's decision to reopen the Veteran's claim of entitlement to service connection for hepatitis C is completely favorable, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations. However, consideration of the merits of the issue is deferred pending additional development consistent with the VCAA. The Veteran claims that he has hepatitis C as a result of his military experience, to include receiving his immunizations by way of an air gun and having a tooth pulled, or as secondary to his service-connected herpes infection of the mouth and lips with erythema multiform. In a rating decision issued in June 2006, the RO denied entitlement to service connection for hepatitis C on the basis that there was no evidence of hepatitis C as a result of his military service. The Veteran filed a timely NOD; however, failed to submit a timely substantive appeal following the issuance of an October 2006 statement of the case. Therefore the June 2006 rating decision is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2005) [2012]. In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no evidence pertaining to the Veteran's claim for service connection for hepatitis C was received prior to the expiration of the appeal period stemming from the June 2006 rating decision. See also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). The Board also notes that the Veteran's service personnel records and copies of his service treatment records were associated with claims file since the issuance of the June 2006 rating decision. VA regulations provide that, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of the same section (which defines new and material evidence). The regulation further identifies service records related to a claimed in-service event, injury, or disease as relevant service department records. 38 C.F.R. § 3.156(c)(1)(i). As such, new and material evidence is not needed to reopen a previously denied claim when relevant service treatment records and/or any other relevant service department records are received after a prior final denial. Rather, the claim is simply reviewed on a de novo basis. In the instant case, the Veteran's newly received service personnel records do not address hepatitis C, or any of the circumstances surrounding the Veteran's allegations of in-service incurrence. Therefore, they are irrelevant to the claim. Moreover, the copies of the Veteran's service treatment records are duplicative of the original service treatment records that were of record at the time of the June 2006 rating decision. Therefore, the provisions of 38 C.F.R. § 3.156(c) are inapplicable to the present claim. Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c). The 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. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing 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). The United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The RO reopened the claim and denied the claim on the merits in a February 2010 statement of the case. Regardless of the RO's actions, the Board must make the threshold preliminary determination on whether new and material evidence has been submitted before proceeding further because this initial determination affects the Board's jurisdiction to adjudicate this claim on its underlying merits, i.e., on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C.A. §§ 5108, 7105(c)); Wakeford v. Brown, 8 Vet. App. 237 (1995) (VA failed to comply with its own regulations by ignoring issue of whether any new and material evidence had been submitted to reopen previously and finally denied claims); VAOPGCPREC 05-92 (March 4, 1992). See also Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996). In the prior final June 2006 decision, the RO denied the claim because there was no evidence the Veteran's hepatitis C was related to his military service. Since the June 2006 decision, VA has received VA treatment records dated through August 2009; a May 2009 private treatment record from M.S.A., M.D; a May 2009 copy of a private treatment record from Banner Health that documents that the Veteran's whole body was examined and the Veteran has no tattoos or body piercings aside from his ears; several lay statements from the Veteran and his wife reporting that he was subjected to in-service risk factors; testimony from the Veteran and his wife from the December 2009 DRO hearing as well as the May 2012 Board hearing attesting that he was subjected to in-service risk factors to include in-service air gun immunizations and having a tooth pulled. He also advanced a new theory of entitlement in that he alleged, in the alternative, that his service-connected herpes infection of the mouth and lips with erythema multiform caused or aggravated his hepatitis C. Since the prior final denial in June 2006, evidence showing possible in-service contraction of hepatitis C have been associated with the claims file, to include the Veteran's lay statements and his own testimony associating hepatitis C with his military service or, in the alternative, his service-connected herpes infection. As previously explained, the credibility of this additional evidence is presumed for the limited purpose of determining whether this evidence is new and material. Justus, 3 Vet. App. 510, 513 (1992). Therefore, the Board finds that the new evidence tends to prove a previously unestablished fact necessary to substantiate the underlying claim of service connection for hepatitis C. Consequently, the newly received evidence raises a reasonable possibility of substantiating the Veteran's claim. Accordingly, the claim of entitlement to service connection for hepatitis C is reopened. ORDER New and material evidence having been received, the appeal to reopen a claim of entitlement to service connection for hepatitis C is granted. REMAND Although the Board regrets the further delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims of entitlement to service connection for hepatitis C and a compensable rating for herpes infection so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. At the outset, the Board notes that risk factors for hepatitis C include intravenous drug use, blood transfusions before 1992, hemodialysis, intranasal cocaine, high-risk sexual activity, accidental exposure while a health care worker, and various kinds of percutaneous exposure such as tattoos, body piercing, acupuncture with non-sterile needles, and shared toothbrushes or razor blades. VBA Letter 211B (98-110) November 30, 1998. Additionally, a June 2004 VA Fast Letter addresses the alleged relationship between immunization with air gun injectors and hepatitis C infection. VBA Fast Letter (04-13) June 29, 2004. Specifically, that Fast Letter notes that transmission of the hepatitis C virus with air gun injections is 'biologically plausible,' notwithstanding the lack of any scientific evidence documenting such relationship. In this case, the Veteran has contended that he contracted hepatitis C through exposure to one or more of the in-service risk factors identified in the aforementioned VBA Fast Letters. Specifically, he alleges that he was exposed to unsterilized air gun devices used to administer vaccinations, i.e., "infected needles," injected by medical professionals. Conversely, the Veteran emphatically denies exposure to other hepatitis C risk factors, including high-risk sexual activity and intranasal and intravenous drug use. He further alleged that his hepatitis C is related to his in-service tooth extraction or is secondary to his herpes infection. The Board observes that the Veteran, as a lay person, is competent to report events within the realm of his personal experience. Layno v. Brown, 6 Vet. App. 465 (1994). As such, he is competent to state that he was vaccinated with air gun injectors on examination prior to his entry into service and had a tooth pulled during service. Moreover, the Board finds the credibility of the Veteran's account is bolstered by its consistency with his service treatment records, which confirm that that he received vaccinations and a tooth was pulled in May 1973. See Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995) (indicating that the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant). The Board is mindful that the Veteran has already been afforded a VA examination in February 2006; however, the Board finds that the examination is inadequate for adjudication purposes because it has not addressed all of the aforementioned hepatitis C risk factors. Hayes v. Brown, 9 Vet. App. 67, 73 (1996); see also Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (noting that once VA provides an examination to a Veteran, VA has a duty to ensure that the examination is adequate for evaluation purposes). Accordingly, the Board finds that the Veteran undergo another VA examination to expressly address whether his reported exposure to unsterilized air gun immunizations and his in-service tooth extraction caused his hepatitis C. Additionally the Veteran has raised a claim that his hepatitis C is secondary to his service-connected herpes infection. The Board has a duty to consider all theories of entitlement to the benefit sought. See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004) (when determining service connection, all theories of entitlement, direct and secondary, must be considered); see also Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) (on direct appeals to the Board, theories of substantive entitlement to benefits such as direct and secondary service connection are not independent for res judicata purposes, and can be lost forever if not addressed). Here, as the Veteran is service-connected for herpes infection, the VA examiner should offer an opinion as to whether such service-connected disability caused or aggravated his hepatitis C. Notably, the Veteran has not been provided with proper VCAA notice regarding the secondary aspect of his claim of entitlement to service connection for hepatitis C. Such should be accomplished on remand. Regarding the Veteran's increased rating claim, the Veteran's herpes infection was last examined for VA compensation purposes in April 2012. However, in his testimony presented during the May 2012 Board hearing, the Veteran indicated that the disability was more severe than what was shown during the April 2012 VA examination. Specifically, the Veteran reported that he has outbreaks two to four times a year, which include sweats and fever, and that he has residual scarring and discoloration over his entire body. As noted, while the Veteran was examined less than a year ago, he claims that his disability is worse than when last rated or examined. As such, VA's duty to assist includes providing him a new examination. Olson v. Principi, 3 Vet. App. 480, 482 (1992); Weggenmann v. Brown, 5 Vet. App. 281 (1993); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). He therefore needs to be reexamined to reassess the severity of this disability. 38 C.F.R. § 3.327(a) (2012). See also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (wherein the Court determined the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating); Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where the record does not adequately reveal current state of Veteran's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination). See, too, Green v. Derwinski, 1 Vet. App. 121 (1991) and VAOPGCPREC 11-95 (April 7, 1995). Finally, on remand, the Veteran should be given an opportunity to identify any healthcare provider who has treated him for hepatitis C and herpes virus. Thereafter, any identified records, to include those from the Phoenix, Arizona, VA Medical Center dated from March 2009 to the present, should be obtained for consideration in his appeal. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be provided with proper VCAA notice regarding the evidence and information necessary to substantiate his claim of entitlement to service connection for hepatitis C as secondary to his service-connected herpes infection of the mouth and lips with erythema multiform. 2. The Veteran should be given an opportunity to identify all healthcare providers who treated him for his hepatitis C and herpes virus. After securing any necessary authorization from the Veteran, obtain all identified treatment records, to include those from the Phoenix VA Medical Center dated from March 2009 to the present. All reasonable attempts should be made to obtain any outstanding VA and private records. If any of those records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. After obtaining all outstanding treatment records, schedule the Veteran for an appropriate VA examination to ascertain the nature and etiology of his hepatitis C. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The claims folder, to include a copy of this REMAND must be provided to the examiner for review. The examiner must state in the examination report that the claims folder has been reviewed. The examiner should confirm the Veteran's diagnosis of hepatitis C. Thereafter, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that such disease is etiologically related to the Veteran's active military service, to include as a result of the use of air gun vaccinations and/or his tooth extraction. The examiner should also offer an opinion as to whether it is at least as likely as not that the Veteran's hepatitis C was caused or aggravated (permanently worsened) by his service-connected herpes virus. In rendering his or her opinion, the examiner must consider the Veteran's statements regarding the onset of his claimed hepatitis C and the continuity of symptomatology of the claimed disorder. The rationale for any opinion offered should be provided. 4. After obtaining all outstanding treatment records, the Veteran should then be scheduled for an appropriate VA examination in order to determine the nature and severity of his herpes infection. The claims file, to include a copy of this REMAND, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. Unretouched color photographs should be performed in connection with this examination. The examiner should identify the nature and severity of all manifestations of the Veteran's herpes infection of the mouth and lips with erythema multiform, to include the frequency and severity of outbreaks. The examiner should provide a report indicating whether or not the Veteran has residual scarring associated with his service-connected herpes/skin disability. If so, the examiner should indicate the location and size of each scar or area of scarring. He or she should also report whether the scars are deep and nonlinear, and whether they are unstable and painful. A deep scar is one associated with underlying soft tissue damage. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. A superficial scar is one not associated with underlying soft tissue damage. The examiner should indicate how many scars are unstable and/or painful, if any. Also, the examiner should report the total area of the body, reported in square inches or square centimeters, affected by residual scarring. The examiner should also discuss the location of each body part of the scars and the dimensions of the area covered by such should be reported. The examiner should identify the percentage of the Veteran's entire body associated with his skin condition and the percentage of exposed areas associated with his skin condition. The examiner should also indicate whether the Veteran is prescribed intermittent systemic therapy such as corticosteroids, or other immunosuppressive drugs and the total duration of time needed for this therapy during a 12-month period. The examiner should also report the name of the systemic corticosteroid and/or immunosuppressive drug prescribed and the date the Veteran was prescribed the medication for use for his herpes infection. The examiner should address the impact that the Veteran's herpes infection has on his employability. The rationale for any opinion offered should be provided. 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain 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. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. 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 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). ______________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs