Citation Nr: 1332478 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 10-12 845 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for hepatitis C. 2. Entitlement to service connection for type II diabetes mellitus. 3. Entitlement to service connection for hypertension. 4. Entitlement to a rating in excess of 10 percent for hepatitis B. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran, Veteran's wife (S.T.), and Veteran's daughter (D.W.) ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from August 1973 to January 1975. These matters are before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Milwaukee, Wisconsin Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's claims file is now in the jurisdiction of the Chicago, Illinois RO. In September 2012, a Travel Board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. At the hearing, the Veteran submitted additional evidence with a waiver of RO review. While the RO has already reopened the claim seeking service connection for hepatitis C and considered the claim de novo, whether new and material evidence has been received to reopen a claim that was previously finally denied must be addressed in the first instance by the Board because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383(Fed. Cir. 1996), aff'g 8 Vet. App. 1 (1995). If the Board finds that no such evidence has been offered, that is where the analysis must end; what the RO may have determined in this regard is irrelevant. Barnett, 83 F.3d at 1383. The claim is characterized accordingly. The Board notes that it has reviewed both the Veteran's physical claims file and Virtual VA to ensure that the complete record is considered. The issues seeking a higher rating for hepatitis B, service connection for hepatitis C on de novo review, and service connection for type II diabetes mellitus and hypertension, are being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if action on his part is required. FINDINGS OF FACT 1. An unappealed January 2005 rating decision denied the Veteran service connection for hepatitis C, finding in essence that there was no evidence of a confirmed diagnosis of hepatitis C. 2. Evidence received since the January 2005 rating decision suggests that the Veteran has a confirmed diagnosis of hepatitis C; relates to an unestablished fact necessary to substantiate the claim of service connection for hepatitis C; and raises a reasonable possibility of substantiating such claim. CONCLUSION OF LAW New and material evidence has been received, and the claim of service connection for hepatitis C may be reopened. 38 U.S.C.A. §§ 5108, 7105(c) (West 2002); 38 C.F.R. § 3.156(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim to reopen. However, inasmuch as this decision reopens the claim, there is no need to belabor the impact of the VCAA on this matter (as any notice or duty to assist omission is harmless). Legal Criteria, Factual Background, and Analysis A January 2005 rating decision denied the Veteran service connection for hepatitis C. He was furnished notice of that determination and of his appellate rights. He filed a notice of disagreement in March 2005, and a SOC was issued in July 2005; thereafter, he did not file a substantive appeal. As he did not perfect his appeal of that decision, or submit new and material evidence within one year following notice, it is final. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.156. A claim which is the subject of a prior final decision may be reopened if new and material evidence is received. 38 U.S.C.A. § 5108. New and material evidence is defined by regulation. See 38 C.F.R. § 3.156. New evidence means evidence not previously submitted to agency decision-makers. Material evidence is 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 establishing the claim. 38 C.F.R. § 3.156(a). The Court has held that the phrase 'raises a reasonable possibility of establishing the claim' must be viewed as enabling rather than precluding reopening. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). 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 Veteran's claim of service connection for hepatitis C was denied by a January 2005 RO rating decision essentially on the basis that there was no evidence of a confirmed diagnosis of hepatitis C. Evidence received since the January 2005 rating decision includes, most significantly, VA laboratory test results dated in August 2007 and a letter from a VA Medical Center (VAMC) to the Veteran dated in September 2007. The August 2007 laboratory test results showed that the Veteran tested positive for the hepatitis C virus (HCV). The September 2007 letter from the VAMC notified the Veteran that the blood test he had when he came in for his August 2007 VA hepatitis examination "showed evidence of hepatitis C infection." As the claim of service connection for hepatitis C was previously denied on the basis that there was no evidence that the Veteran had a confirmed diagnosis of hepatitis C, for evidence to be new and material in the matter, it would have to be evidence not previously of record that tends to show that he does indeed have a confirmed diagnosis of hepatitis C. The aforementioned laboratory test results and VAMC letter suggest that the Veteran has a diagnosis of hepatitis C. They relate to an unestablished fact necessary to substantiate the claim of service connection for hepatitis C and raise a reasonable possibility of substantiating that claim (particularly in light of the low threshold standard endorsed by the Court in Shade, supra). Therefore, such evidence is new and material, and this claim may be reopened. 38 U.S.C.A. § 5108. De novo review of this claim is addressed in the remand below. ORDER The appeal to reopen a claim of service connection for hepatitis C is granted. REMAND On review of the record the Board has found that further development is needed for VA to fulfill its duties mandated under the VCAA. The record shows that the Veteran was awarded Social Security Administration (SSA) disability benefits for hepatitis and depression. The medical records considered by SSA in connection with the award are constructively of record, may contain pertinent information, and must be secured. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Hepatitis B The Veteran was most recently afforded a VA examination for his hepatitis B in November 2009, nearly four years ago. At the September 2012 hearing he indicated that the disability has since worsened; he acknowledged that his current symptoms might have been affected by a recent stroke. A contemporaneous examination to assess the severity of the hepatitis B is necessary. The most recent VA treatment records in the claims file are dated in August 2012. As reports of ongoing VA treatment are constructively of record (and are likely to contain pertinent information), they must be obtained. See 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet. App. 611 (1992). Hepatitis C The Veteran contends that his hepatitis C is related to his service (to include as due to airgun injections therein, as alleged in a November 2004 statement) and/or was caused or aggravated by his service-connected hepatitis B. He has not been advised of the specific information and evidence necessary to substantiate a claim for service connection on a secondary basis. The Veteran's service treatment records (STRs) document a diagnosis of hepatitis in February 1974. Hepatitis B has been service-connected based on such diagnosis. The postservice medical evidence includes VA laboratory test results dated in August 2007 which showed that the Veteran tested positive for the hepatitis C virus (HCV). A letter from a VAMC to the Veteran dated in September 2007 notified him that the blood test he had when he came in for his August 2007 VA hepatitis examination "showed evidence of hepatitis C infection." In light of the above, an examination to ascertain the nature and likely etiology of his current hepatitis C (to include whether such disability was caused or aggravated by his service-connected hepatitis B) is needed. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4). Type II Diabetes Mellitus and Hypertension In a January 2008 written statement, the Veteran expressed disagreement with the denials of service connection for type II diabetes mellitus and hypertension in the November 2007 rating decision. The RO has not issued a SOC addressing these issues, as required, and the Board must remand these matters for such action. See Manlincon v. West, 12 Vet. App. 238 (1999). The Board notes that it will have full jurisdiction in these matters only if the Veteran perfects an appeal by timely filing a substantive appeal after a SOC is issued. Accordingly, the case is REMANDED for the following: 1. The RO should review the record and take any necessary action to ensure compliance with all VCAA notice and assistance requirements, to specifically include furnishing the Veteran notice of the specific information and evidence necessary to substantiate a claim of secondary service connection. 2. The RO should secure from SSA complete copies of all records pertaining to the Veteran's award of SSA disability benefits, including the decision and all medical evidence considered in connection with the decision. If such is provided by disc, the RO should print out the records and associate the copies with the record. If the records are unavailable, it must be so certified for the record, with explanation of the reason for the unavailability.. 3. The RO should ask the Veteran to identify the provider(s) of any additional (records of which are not already associated with the record) treatment or evaluation he has received for his hepatitis B and hepatitis C disabilities, and to provide all releases necessary for VA to secure any private records of such treatment or evaluation. The RO should obtain complete records of all such treatment and evaluation from all sources identified. If any records requested are unavailable, the reason must be explained for the record. In addition, the RO should secure for the record complete copies of the clinical records of all VA treatment the Veteran has received for his hepatitis B and hepatitis C disabilities since August 2012. If any records sought are unavailable, the reason must be explained for the record. 4. After the development sought above is completed, the RO should arrange for an appropriate examination of the Veteran to assess the current severity of his hepatitis B, and to ascertain the nature and likely etiology of his hepatitis C. The Veteran's entire record (to include the claims file with this remand and the records in Virtual VA), as well as the criteria for rating chronic liver disease without cirrhosis (including hepatitis B), must be reviewed by the examiner in conjunction with the examination. Any tests or studies indicated should be completed. Based on review of the record and examination of the Veteran, the examiner must provide opinions that respond to the following: For hepatitis B: The examiner should identify all symptoms (and associated impairment of function) of the Veteran's hepatitis B, and indicate the presence or absence of each symptom in the criteria for ratings in excess of 10 percent for such disability. If a symptom is noted to be present, the examiner should comment on its severity and frequency. The examiner should also identify any symptoms of hepatitis B found that are not listed in the schedular criteria, noting their nature, frequency, and severity. Furthermore, the examiner should note whether any of the aforementioned symptoms are due to any disability (such as a stroke) other than the hepatitis B. The examiner must explain the rationale for all opinions. For hepatitis C: Is it at least as likely as not (a 50% or better probability) that the Veteran's hepatitis C was incurred or aggravated during his active service, or was caused or aggravated by his service-connected hepatitis B. The examiner must specifically consider and address the Veteran's diagnosis of hepatitis in service in February 1974 (and whether this could have been undiagnosed hepatitis C), as well as his contention that he contracted hepatitis C from in-service airgun injections. The examiner must explain the rationale for all opinions, citing to supporting clinical data, as appropriate. 5. The RO should ensure that all of the development sought is completed, arrange for any further development suggested by additional evidence received, and then review the record and readjudicate the claims for a rating in excess of 10 percent for hepatitis B and service connection for hepatitis C. If either remains denied, the RO should issue an appropriate supplemental SOC (SSOC) and afford the Veteran the opportunity to respond. The case should then be returned to the Board. 6. The RO must also issue a SOC addressing the issues of service connection for type II diabetes mellitus and hypertension, and advise the Veteran of the period of time afforded for submission of a substantive appeal. If a timely substantive appeal is received, these issues should be returned to the Board. 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 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). ______________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs