Citation Nr: 1304763 Decision Date: 02/08/13 Archive Date: 02/19/13 DOCKET NO. 99-19 287 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for Hepatitis C. 2. Entitlement to a disability rating in excess of 10 percent for service-connected dorsolumbar shell fragment wound (SFW) scar. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran served on active duty from May 1967 to June 1970. He served in the Republic of Vietnam and received the Purple Heart Medal for service in combat. This matter initially comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Nashville, Tennessee, Regional Office (RO) of the Department of Veterans Affairs (VA). In October 2003, the issues of entitlement to a disability rating in excess of 10 percent for a dorsolumbar SFW scar and to entitlement to an effective date prior to April 15, 1998, for that 10 percent rating for a dorsolumbar SFW scar, were remanded by the Board for further evidentiary development. These same issues came before the Board in July 2009, along with additional issues of service connection for a stomach condition, including as secondary to the Veteran's service connected disabilities, and whether new and material evidence had been received to reopen the claims for service connection for Hepatitis C and for service connection for flat feet. At that time, the Board again remanded the claims for further evidentiary development. A January 2012 Board decision granted service connection for a bilateral foot disability, to include hallux valgus and pes planus, and service connection for a stomach disorder. That decision denied service connection for Hepatitis C and denied a disability rating in excess of 10 percent for a service-connected dorsolumbar SFW scar, on a schedular and extraschedular basis, as well as entitlement to an effective date prior to April 15, 1998, for the assignment of a 10 percent disability rating for a dorsolumbar SFW scar. In the 2012 Board decision it was noted that the Veteran is already in receipt of a total disability rating. The Veteran appealed only the denials of service connection for Hepatitis C and rating in excess of 10 percent for a service-connected dorsolumbar SFW scar to the United States Court of Appeals for Veterans Claims (Court). The Court entered a November 2012 Order vacating only those portions of the Board's January 2012 decision, and incorporated the terms of a Joint Motion for Remand (JMR). The JMR specified that the Veteran was not appealing the January 2012 Board denial of an effective date prior to April 15, 1988 for a 10 percent rating for the service-connected dorsolumbar SFW scar or the Board's grants of service connection for a bilateral foot disorder, to include hallux valgus and pes planus, and a stomach disorder. While not contained within the Court's November 2012 Order, the JMR stated that "[t]he Board shall obtain copies of this motion, and of the Court's order, and incorporate them into Appellant's claims folder for appropriate consideration in subsequent decisions on this claim." This has been done. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Hepatitis C The JMR stated that the Board provided inadequate reasons or bases as to why the evidence did not establish that the Veteran was exposed to risk factors for Hepatitis C in service. The JMR noted that in denying service connection for Hepatitis C, the Board found that his Service Treatment Records (STRs) were "completely negative" for any indication that he was exposed to any relevant risk factors for that disease but had not discussed evidence that he had alleged that he was exposed to the blood of wounded and dead soldiers in Vietnam. The JMR observed that VA Fast Letter 04-13 noted that "[a] [V]eteran may have been exposed to [Hepatitis C] during the course of his or her duties as a military corpsman, a medical worker, or as a consequence of being a combat veteran." The JMR acknowledged that the Veteran's receipt of the Purple Heart Medal for his combat service and that lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a layperson, citing 38 C.F.R. § 3.159(a)(2). Thus, the Veteran would be competent to report that he was exposed to the blood of wounded or dead soldiers in service, but the Board had not addressed the credibility of such lay evidence. Thus, on remand, the Board was to reassess whether the Veteran was exposed to any Hepatitis C risk factors in service, and if so, whether a VA examination is necessary as part of the Secretary's duty to assist under 38 U.S.C. § 5103A. Also, given confirmed combat service, and the assertion of exposure to blood in combat conditions, the Board should was to take account of 38 U.S.C. § 1154(b) in assessing his exposure to Hepatitis C risk factors. Based on this, the Board finds that a VA examination is needed for a nexus opinion. Dorsolumbar SFW Scar The JMR also stated that the Board did not address the potential applicability of 38 U.S.C. § 1159 in its discussion of whether an increased rating in excess of 10 percent was warranted for Appellant's SFW of the dorsolumbar spine. As to this, the JMR observed that the Board noted that throughout the appeal the Veteran had maintained that he now has diagnosed back disabilities, resulting in low back pain, and that his disorder "would be more appropriately compensated under a diagnostic code which addresses his low back pain." The JMR cited 38 U.S.C. § 1159, in observing that the Board noted that he had had multiple VA examinations which had specifically found that any current lumbar spine disabilities were not related to service, and therefore the Board limited its inquiry to the question of whether an increased rating was warranted only for his dorsolumbar SFW scar. The JMR observed that a March 1971 rating decision had granted service connection for a "back injury[,]" which was evaluated as noncompensably disabling as a "low back syndrome" under Diagnostic Code (DC) 5295, and that this grant and rating was in effect until 1998 (approximately 27 years), when VA recharacterized his service-connected condition as a dorsolumbar SFW scar, which was assigned a 10 percent rating under DC 7804 in a December 1998 rating decision. The JMR observed that while a grant of service connection is not severed simply because the DC associated with it is changed, the 1971 rating decision granted service connection for a disability of the back, while the 1998 rating decision recharacterized it as a grant for entitlement to service connection for a scar. The JMR cited to Read v. Shinseki, 651 F.3d 1296, 1300 (Fed. Cir. 2011) for the proposition that evaluating a disability under a different DC can implicate 38 U.S.C. § 1159 if doing so changes the situs of the disability. Thus, on remand, and citing Sanders v. West, 13 Vet. App. 491, 493-94 (2000), the Board was to specifically address 38 U.S.C. § 1159 and discuss whether an increased rating is warranted under any diagnostic code applicable to lumbar-spine disabilities. The Board observes that both Read v. Shinseki, 651 F.3d 1296, 1300 (Fed. Cir. 2011) and Sanders v. West, 13 Vet. App. 491, 493-94 (2000) cite Gifford v. Brown, 6 Vet. App. 269 (1994). The Board further notes that 38 U.S.C. § 1159 protects service connection once it has been in effect for 10 years and that 38 U.S.C. § 110 protects, i.e., precludes reduction of, a disability rating that has continuously been in effect for 20 years. Addressed chronologically, in Gifford, Id., a veteran was granted service connection for residuals of a gunshot wound (GSW) of the right thigh, when it was actually the left thigh that was wounded, which was assigned a 10 percent rating that became protected (having been in effect for more than 20 years). In that case VA Office of General Counsel issued an opinion, VAOPGCPREC 50-91, which held that 38 U.S.C. § 1159 did not prohibit the VA from redesignating an existing service-connected disability rating to reflect accurately the actual situs of an injury or disability, provided the redesignation does not result in a severance of service connection for the disability. In that opinion it was noted that nothing in the legislative history which would suggest that Congress intended the VA to interpret 38 U.S.C. § 1159 a manner which would cause the VA to maintain two service-connected ratings for one disability. To do otherwise, again according to VAOPGCPREC 50-91, would result in a veteran's being service connected for two disabilities (the actual site and the protected site) when only one was shown by the medical evidence of record. In Gifford "[t]he only issue before the Court is whether the Board's correction of the December 1970 rating decision was prohibited by 38 U.S.C. § 1159. Id. at 271. The Court holds it was not." Rather, the Court stated that: whether the thigh was the right or left is completely immaterial to both service connection and degree of disability. The only essential feature of the initial rating, and the part of the rating that was protected, was a disability stemming from a gunshot wound to a thigh. The description of the particular thigh which was injured was, in short, mere surplusage .... [t]he correction of this rating to reflect accurately the thigh which was injured did not result in a new rating or the severance of the old rating. It was a simple, nonsubstantive administrative correction showing the injury causing disability was to a different part of the body ... [t]he correction did not involve a change in the diagnostic code, the fact of service connection, nor the degree of disability. Under these circumstances, this correction was of no more significance than, for example, [a spelling or numerical correction] ... Gifford, Id. at 271. In Sanders v. West, 13 Vet. App. 491 (2000) a Board decision changed the evaluation of a GSW of the left foot from a Diagnostic Code (DC) for rating muscle injury (DC 5310) to DCs 5208-81 for rating bone or joint disability because treatment for complaints due to the injury had "been assessed as being related to the bone and joint involved, not the muscles of the veteran's foot or toe." Id. at 493. In Sanders, Id. at 493-94, it was noted that 38 U.S.C. § 110 prohibited reduction of a rating in effect for 20 or more years (as was the case in Sanders), and also cited 38 U.S.C. § 1159. However, the Court was not clear what the Board had done, noting three possible scenarios. First, whether the Board discontinued a protected rating contrary to 38 U.S.C. §§ 110 and 1159 while simultaneously granting service connection for a different injury, in which case separate ratings could be assigned for the muscle injury and for the bone and joint impairment, as to which on remand the Board was to include a discussion of the issue of severance and why the change in the DC was is not, at a minimum, analogous to severance, citing to Estaban v. Brown, 6 Vet. App. 25, 261-62 (1994) (separate ratings are assignable when the symptoms for any one disorder do not duplicate or overlap the other disorders' symptoms). The second scenario observed by the Court in Sanders, Id. at 493-94, was that the rating was merely modified the description of the situs of the disability, as in Gifford, Id., in which the Court had held that "only essential feature of the initial rating, and the part of the rating that was protected, was a disability stemming from a gunshot wound to a thigh." The third scenario was that the Board had not desired to award a duplicate disability rating for the same symptoms, again citing to Gifford, Id. Sanders, Id. at 493-94. On remand in Sanders the Board was to clarify its' decision and address: the critical issue [] with regard to the above scenarios [of] whether the appellant's disability is systemic, i.e., muscular or skeletal, or rather only functional, and if so, what is the precise nature of the functional loss common to any rating code that may be utilized. Sanders, Id. at 494. Lastly, in Read v. Shinseki, 651 F.3d 1296 (Fed. Cir. 2011) there was a changed in the DC for rating a right thigh injury, from a DC for Muscle Group (MG) 13 (DC 5313) to MG 15 (DC 5315), without actually changing the disability rating assigned, which remained 10 percent. In Read, Id. at 1300, the Federal Circuit stated that "[t]he only question on appeal is whether the 'service connection' for a 'disability' protected under 38 U.S.C. § 1159 is severed when the VA assigns to an injury a different [DC] than originally noted." Citing Collaro v. West, 136 F.3d 1304 (Fed.Cir. 1998) it was held that 38 U.S.C. § 1159 protected only the nexus element of the five common elements of a VA application for benefits, i.e., a connection between "service and the disability [(i.e. service connection)]." It did not protect the second element, i.e., the existence of disability. Read, Id. at 1300. "Because [38 U.S.C.] § 1159 does not protect the fact of a disability ... the change in the determination of the applicable [DC] likewise is unprotected. Thus, there is no violation of § 1159 by a determination that the situs of [Veteran's] disability for purposes of determining the correct [DC] [i.e., Muscle Group XV and not Muscle Group XIII, DCs 5315 and 5313]." Read, Id. at 1300. The Court found that because the same disability was involved both the initial DC chosen and the DC chosen latter, the change in the DC "did not sever anything." Read, Id. at 1301. In Read, Id. at 1301, the Court noted that the symptoms (of pain and weakness) were "equally attributable to a situs of disability in [MG] XV or in [MG] XIII." Moreover, "[t]o determine that the change of the situs of the disability-or the [DC] associated with it-was a severance of one service connected disability and an establishment of another, where the cause of the disability and the resultant functional impairment are the same, would ill-serve the purpose of [38 U.S.C. § 1159]." Read, Id. at 1301. Citing VAOPGCPREC 50-91, the Federal Circuit in Read, Id. at 1302, stated that "a change in the situs of the disability does not change the categorization of the disability such that service connection for one disability is severed and service connection for another disability is created." It was further observed that a latter VAOPGCPREC 13-92 "reiterated that § 1159 does not protect a prior improper diagnosis where the evidence reveals the proper diagnosis, even where the [DC] is changed" (in that case from DC 5003 degenerative arthritis to DC 5010 for traumatic arthritis). It was observed that the VA drew a distinction between a "disability" and a "diagnosis," noting that § 1159 'protects service connection for any disability or death, not diagnosis [and the] modification in the diagnosis had no effect on the veteran's service-connected status for the lower-back condition, and service connection for that condition was not terminated." Read, Id. at 1302. The Board also notes that VAOPGCPREC 68-91 held that if a veteran's rating is increased retroactively based on a finding of CUE, the rating becomes protected under the provisions of 38 U.S.C. § 110 and 38 C.F.R. § 3.951, if more than 20 years have passed since the retroactive effective date of the rating. From this, the Board observes that several factors must be initially discussed by the RO, prior to adjudication by the Board. That is, the RO should address whether in this case the rating decision in 1998 (recharacterizing the disability from "low back syndrome" rated under DC 5295 (found under the portion of the Schedule for Rating Disabilities for evaluating disabilities of the musculoskeletal system) to a dorsolumbar SFW scar rated under DC 7804 (for rating scars and found under the portion of the Schedule for Rating Disabilities for evaluating disabilities of the "skin") constituted severance of a service-connected low back disorder which had previously been assigned a noncompensable disability rating. In this discussion, the factors for consideration by the RO should be (1) the site of the disability(ies) in question; (2) the symptoms of the disability(ies) in question and whether any symptoms are overlapping as opposed to being separate and distinct from each other; (3) the bodily systems involved, i.e., the musculoskeletal system and the skin; and (4) the "correct" diagnosis. See generally Read v. Shinseki, 651 F.3d 1296, 1300 (Fed. Cir. 2011); Sanders v. West, 13 Vet. App. 491, 493-94 (2000); and Gifford v. Brown, 6 Vet. App. 269 (1994) (as discussed above). Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran a VA examination for an examination and opinion as to the origin of the Veteran's hepatitis C, as to whether it is as likely as not that the Veteran's current hepatitis C is the result of any incident during service, to include (1) his inservice combat experiences, to include any exposure to the blood of others; or (2) blood transfusions, if any, received during inservice foot surgery; or (3) post service ingestion of alcohol; or (4) was otherwise caused by any incident or event that occurred during service. The examiner must have access to and review the claims folders for the Veteran's pertinent medical history. If the examiner is not available, refer the case to another qualified physician for the appropriate response(s) to the questions posed. In formulating the medical opinion, the examiner is asked to consider that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against causation. If the requested opinion cannot be provided without resort to speculation, the examiner should so state and must provide the rationale therefore. 2. The RO should adjudicate whether the 1998 rating decision constituted an improper severance of a service-connected low back disorder which had previously been assigned a noncompensable disability rating, i.e., whether the recharacterization of the disability for which service connection was originally granted, i.e., low back syndrome, to a dorsolumbar SFW scar constituted a violation of 38 U.S.C.A. § 1159 (protecting the status of service connection of a disability when service connection has been in effect for 10 years or more). (a). If it is found that the 1998 rating decision did, in fact, improperly sever service connection for a low back disability, in violation of 38 U.S.C. § 1159, the RO should take the appropriate steps to retroactively assign an appropriate rating or appropriate staged disability ratings. Thereafter, the Veteran and his representative must be afforded appropriate notice of the decision and any rating(s) assigned and of the requirement for both initiating and perfecting an appeal as to any such decision concerning the rating(s) assigned. That is, as to the matter of any rating retroactively assigned, if any, this is a separate matter not currently developed for appellate consideration. This means that to initiate an appeal, the Veteran or his representative must file a Notice of Disagreement (NOD) within the appropriate time period and, after the RO issuance of a Statement of the Case (SOC), the appeal must be perfected by filing a Substantive Appeal (VA Form 9, Appeal to the Board) or equivalent. In other words, if the RO concludes that there was a violation of 38 U.S.C.A. § 1159 it must take the appropriate step(s) to ensure that the status of service connection for a low back disorder remains protected, to include the assignment of an appropriate disability rating (even if done retroactively). (b). If it is found that the 1998 rating decision did not constituted severance of a service-connected low back disorder which had previously been assigned a noncompensable disability rating but, rather, a mere change in the situs or description of the disability or a mere correction of a correct diagnosis, the RO should expressly state the rationale therefore. (c). Additionally, the RO should also readjudicate the claim for service connection for Hepatitis C in light of any additionally obtained evidence. Also readjudicate entitlement to a rating in excess of 10 percent for a dorsolumbar SFW scar. 3. Then, if the claims remained denied, furnish the Veteran and his representative a Supplemental Statement of the Case (SSOC) addressing the issues of: 1) service connection for Hepatitis C, or (2) a disability rating in excess of 10 percent for service-connected dorsolumbar scar, and afford them the appropriate period of time within which to respond and then return the case to the Board. 4. Again, the Veteran and his representative are hereby put on notice that if the RO determines that service connection was improperly severed for a low back disability and retroactively assigns what it determines to be an appropriate rating or appropriate staged rating, this would be a matter separate from the issues currently on appeal. Any such matter is one to which a separate, and timely, NOD must be filed in order to initiate an appeal. 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). 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. 2012). _________________________________________________ MARJORIE A. AUER 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).