Citation Nr: 1310135 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 09-38 000 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for hepatitis C. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a left knee disorder. 3. Entitlement to service connection for a psychiatric disorder, to include anxiety and depression. REPRESENTATION Appellant represented by: Dianne Olsen, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran's active military service extended from February 1976 to February 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. A claim for entitlement to service connection for psychiatric disorders encompasses all diagnosed psychiatric disorders. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The issues of entitlement to service connection for hepatitis C, a left knee disorder, and a psychiatric disorder are remanded to the RO. FINDINGS OF FACT 1. The RO denied service connection for a liver disorder and a left knee disorder in August 2003. The Veteran was notified of this decision that same month but did not perfect an appeal. 2. At the time of the August 2003 rating decision, the evidence did not show the existence of a left knee disorder, nor did it show a nexus between a hepatitis C and military service. 3. Evidence received since August 2003 was not previously considered by agency decision makers, is not cumulative or redundant of evidence of record, addresses unestablished facts, and raises the reasonable possibility of substantiating the claims of entitlement to service connection for hepatitis C and a left knee disorder. CONCLUSIONS OF LAW 1. The criteria to reopen the finally denied claim of entitlement to service connection for hepatitis C have been met. 38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156(a) (2012). 2. The criteria to reopen the finally denied claim of entitlement to service connection for a left knee disorder have been met. 38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Without deciding whether notice and development requirements have been satisfied in the present case, the Board is not precluded from adjudicating the issue on appeal. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). This is so because the Board is taking action favorable to the Veteran by finding that new and material evidence has been submitted to reopen the claims of entitlement to service connection for hepatitis C and a left knee disorder. As such, this decision poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Service connection may be established for a disability resulting from personal injury incurred in or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Reopening a claim for service connection, which has been previously and finally disallowed, requires that new and material evidence be presented or secured since the last final disallowance of that claim. 38 U.S.C.A. § 7105. If new and material evidence is presented or secured with respect to a claim that has been disallowed VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108; Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Although the RO determined that new and material evidence was not presented to reopen the Veteran's claim of entitlement to service connection for a left knee disorder, and found that new and material evidence had been found to reopen the claim of entitlement to service connection for hepatitis C, such determinations are not binding on the Board, and the Board must first decide whether new and material evidence has been received to reopen the claims. Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996); McGinnis v. Brown, 4 Vet. App. 239, 244 (1993) (holding that Board reopening is unlawful when new and material evidence has not been submitted). Evidence is considered "new" if it was not previously submitted to VA. "Material" evidence is evidence which, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). 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. Id. The RO denied the Veteran's claims for service connection for a liver disorder and a left knee disorder in an August 2003 rating decision. He was notified of this decision that same month. He filed a notice of disagreement to initiate an appeal. A statement of the case was provided to the Veteran in August 2004, but he did not file a substantive appeal, and the August 2003 rating decision is final. 38 U.S.C.A. § 7105(c). The evidence of record at the time of the previous denial included the Veteran's service treatment records, which showed several left knee injuries during active duty, but that no knee abnormalities were noted on separation examination. Post-service, there was no evidence of a left knee disorder. The service treatment records revealed that the Veteran had symptoms of jaundice and was treated for a "hepatitis" during service. The post-service evidence also included private laboratory test results dated October 2003 showing a diagnosis of hepatitis C, genotype 3a. There was no evidence linking the hepatitis C diagnosis to the incidence of hepatitis treated during active service. Evidence received since the August 2003 RO rating decision includes VA medical treatment records, a January 2009 VA examination report, a May 2009 addendum to the VA examination report; a single page from a disability decision rendered by the Social Security Administration (SSA), and the Veteran's testimony at a November 2012 hearing before the Board. A September 2008 VA treatment record indicates an impression of "knee pain - history of injury in the military." Other VA treatment records reveal continued diagnosis of hepatitis C. The May 2009 addendum to the VA examination report provides an inadequate medical opinion which links the Veteran's current hepatitis C diagnosis to the hepatitis during service, but indicates that the opinion is speculative. The SSA decision excerpt indicates that the Veteran's current disabling impairments include hepatitis C and osteoarthritis, without indicating what joints are affected. At the November 2012 hearing, the Veteran testified that he had symptoms of left knee pain since service. The evidence received since the August 2003 rating decision is new and material. There is evidence that a current left knee disorder may exist, and an equivocal nexus opinion with respect to the etiology of Veteran's hepatitis C. This evidence is not cumulative or redundant of evidence previously of record, addresses unestablished facts with respect to both claims for service connection. Accordingly, the reopening of the claims for service connection for hepatitis C, previously claimed as a liver disorder, and for service connection for a left knee disorder is warranted. ORDER New and material evidence having been submitted, the claim for entitlement to service connection for hepatitis C, is reopened. New and material evidence having been submitted, the claim for entitlement to service connection for a left knee disorder is reopened. REMAND The record does not contain a complete copy of a letter showing that the Veteran was provided the required notice for his claim for service connection for a psychiatric disorder. The Veteran asserts that he has a psychiatric disorder, anxiety, which developed during service and has been present since. In the alternative, there is indication in the record that anxiety may be related to his current health problems, and thus may be related to one of the disabilities for which he claims service connection. Accordingly the required notice for direct and secondary service connection for a psychiatric disorder must be provided. The Veteran has submitted a copy of a single page from an SSA disability decision which indicates hepatitis C and osteoarthritis are disabling disorders. Complete copies of the Veteran's SSA records should be obtained. Waddell v. Brown, 5 Vet. App. 454 (1993); Clarkson v. Brown, 4 Vet. App. 565 (1993); Shoemaker v. Brown, 3 Vet. App. 519 (1993). The evidence related to the 2009 VA examination of record is inadequate as it contains an incomplete and inadequate nexus opinion. When the medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Moreover, an additional examination is required, as the most recent medical evidence does not adequately address the Veteran's assertions regarding secondary service connection for his claimed psychiatric disorder. Accordingly, the case is remanded for the following action: 1. The Veteran and his attorney must be informed of the evidence needed to establish entitlement to service connection for a psychiatric disorder, including as secondary to service-connected disorders, the information and evidence that the Veteran must provide, and the assistance that VA will provide to obtain evidence on his behalf. 2. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims for service connection. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Regardless of his response, the RO must attempt to obtain all SSA records pertinent to the Veteran's disability benefits, as well as the medical records relied upon in making that decision. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his attorney must then be given an opportunity to respond. 3. The Veteran must be afforded the appropriate VA examination to determine whether any left knee disorder found is related to his military service. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must state whether any left knee disorder found is related to the Veteran's active duty service, to include as due to the injuries treated therein. A complete rationale for all opinions must be provided. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 4. The Veteran must be afforded a VA examination for to determine whether the currently diagnosed hepatitis C is related to the Veteran's military service. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. All pertinent symptomatology and findings must be reported in detail. Laboratory testing for hepatitis A, B, and C must be conducted. The examiner must provide a narrative interpretation of the test results and specifically indicated whether the test results for Hepatitis A and B show that the Veteran had either infection in the past which has resolved. A narrative explanation of the current genotype of the Veteran's Hepatitis C including geographic distribution must also be included. The examiner must elicit a history of hepatitis risk factors from the Veteran, and is informed that the service treatment records do not note tattoos during service or on separation examination, but recent medical treatment records note the presence of tattoos. It is essential that the report includes a full discussion of all modes of transmission, and a rationale as to why the examiner believes that an incident during service was, or was not, the source of the currently diagnosed hepatitis C. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must state whether the diagnosed hepatitis C is related to the Veteran's military service, to include his treatment and diagnosis of viral hepatitis in service. The examiner must also address whether hepatitis C can manifest as acute jaundice or is this symptom indicative of hepatitis A or B infection. A complete rationale for all opinions must be provided. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 5. The Veteran must be afforded a VA psychiatric examination. The report of examination must include a detailed account of all manifestations of psychiatric pathology found. If there are different psychiatric disorders shown, the examiner must reconcile the diagnoses and must specify which symptoms are associated with each disorder. If certain symptomatology cannot be disassociated from each disorder, it must be specified. All indicated tests must be accomplished. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must state whether it any psychiatric disorder found is related to his military incident, to include any incident therein. The examiner must also provide an opinion as to whether any psychiatric disorder is related to or aggravated by a physical disorder. A complete rationale for all opinions must be provided. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 6. The RO must notify the Veteran that it is his responsibility to report for the scheduled examinations and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for a scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 7. The examination reports must be reviewed to ensure that they are in complete compliance with the directives of this remand. If a report is deficient in any manner, corrective procedures must be implemented. 8. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken above, the claims on appeal must be readjudicated. If any benefit on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his attorney. After the Veteran and his attorney have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs