Citation Nr: 1303468 Decision Date: 02/01/13 Archive Date: 02/08/13 DOCKET NO. 09-19 742 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to a compensable initial rating for bilateral hearing loss. 2. Whether new and material evidence has been received to reopen a claim for service connection for Hepatitis C. 3. Entitlement to service connection for Hepatitis C. REPRESENTATION Appellant represented by: Timothy M. White, Attorney-at-law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Biswajit Chatterjee, Counsel INTRODUCTION The Veteran served on active duty from May 1982 to April 1986. This appeal to the Board of Veterans' Appeals (Board) is from August 2008 and November 2010 decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The RO's August 2008 administrative decision denied the Veteran's petition to reopen a claim for service connection for Hepatitis C, because no new and material evidence had been received. The Veteran perfected an appeal for this issue. The RO's November 2010 rating decision granted the Veteran's claim for service connection for bilateral hearing loss and assigned an initial 0 percent rating, retroactively effective from July 23, 2010. The Veteran appealed for a higher initial rating. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). The Veteran testified at a videoconference hearing at the RO in September 2011, before the undersigned Acting Veterans Law Judge of the Board. A transcript of the hearing is associated with the claims file. The issues of entitlement to service connection for Hepatitis C and entitlement to an initial compensable rating for bilateral hearing loss are addressed in the REMAND portion of the decision below and are REMANDED to the RO. FINDINGS OF FACT 1. An unappealed March 2005 RO rating decision denied service connection for Hepatitis C, because there was no indication of Hepatitis C during service and no competent evidence that her current Hepatitis C is related to military service. 2. Evidence added to the record since the final March 2005 denial is not cumulative or redundant of the evidence of record at the time of that decision and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The March 2005 rating decision denying service connection for Hepatitis C is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103 (2012). 2. New and material evidence has been submitted to reopen the claim for service connection for Hepatitis C. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2011); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA As provided by the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Since the Board is reopening the claim for Hepatitis C on the basis of new and material evidence, there is no need to discuss whether the Veteran has received sufficient notice insofar as the specific reasons for the prior final denial. Even if she has not, this is inconsequential and at most harmless error. See Kent v. Nicholson, 20 Vet. App. 1 (2006); see also Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). Unfortunately, the AMC must still fulfill other aspects of the duties to notify and assist. This is the reason the Board is remanding the underlying claim for entitlement to service connection for Hepatitis C, rather than immediately readjudicating it de novo on the merits. II. New and Material Evidence to Reopen a Claim for Hepatitis C Unappealed rating decisions by the RO are final with the exception that a claim may be reopened by submission of new and material evidence. 38 U.S.C.A. §§ 5108, 7105(c) (West 2002). When determining whether a claim should be reopened, the Board performs a two-step analysis. The first step is to determine whether the evidence presented or secured since the last final disallowance of the claim is "new" and "material." See 38 U.S.C.A. § 5108; Smith v. West, 12 Vet. App. 312 (1999). Second, if VA determines that new and material evidence has been added to the record, the claim is reopened and VA must evaluate the merits of a Veteran's claim in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140 (1991); Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996). VA regulation defines "new" as existing evidence not previously submitted. "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. If the evidence is new and material, the next question is whether the evidence raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2012). In determining whether evidence is new and material, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). As procedural history, the Veteran filed a claim for service connection for Hepatitis C, which she attributed to service. She partly attributed her Hepatitis C to a blood transfusion and un-sanitized tools used to sew a cut during a childbirth procedure in 1984 in a hospital in Germany. She also alternatively attributed her Hepatitis C as due to surgeries for ganglion cysts in Ft. Bragg, North Carolina. See December 2004 claim and December 2004 responses to "Risk Factors for Hepatitis Questionnaire." A March 2005 RO rating decision denied the claim, because there was no evidence that Hepatitis C was treated during service, including during treatment for a pregnancy in 1984 or during treatment for an excision of a ganglion cyst of the left wrist on August 1, 1985. The decision also denied the claim because the evidence failed to show her Hepatitis C was related to military service. The RO notified the Veteran of that decision and apprised her of her procedural and appellate rights, but she did not appeal. Therefore, that decision is final and binding on her based on the evidence then of record. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103. The pertinent evidence on file at the time of that last rating decision were personal statements; available service treatment records; private post-service treatment records; and letters from the American Red Cross attesting to positive Hepatitis C findings on five blood donations from 1991 to 1997 and an elevated ALT laboratory result in January 1988. The evidence that must be considered in determining whether there is a basis for reopening this claim is that added to the record since that March 2005 rating decision. See Evans v. Brown, 9 Vet. App. 273 (1996). Since that March 2005 decision, additional evidence has been associated with the claims file, including additional personal statements and personal hearing testimony; clinical records for her childbirth procedure in 1984 from Stuttgart, Germany base hospital; VA outpatient treatment records; post-service private treatment records; a VA examination and negative etiological opinion; and private treatment records, including two positive etiological opinions. See Evans v. Brown, 9 Vet. App. 273 (1996). This additional evidence is not only new, but also material to the disposition of this claim. Indeed, there is now competent medical opinion evidence supporting the notion that the Veteran's current Hepatitis C is etiologically linked to service. In particular, there are two positive medical opinion letters from a private treating physician, Dr. H.T., MD, dated in September 2008 and October 2009. In contrast, the Board acknowledges that there is also a new medical opinion in the June 2011 VA examination report, which discounts the notion that Hepatitis C is causally related to service. However, the Board notes the new evidence may not be sufficient to ultimately grant the claim on its underlying merits. To emphasize, under the regulation defining new and material evidence, 38 C.F.R. § 3.156(a), the Veteran need only submit additional evidence sufficient to raise a reasonable possibility of substantiating her claim, to reopen her claim. In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court 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. 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. Therefore, the Board finds that the newly received evidence triggers VA's duty to assist the Veteran in providing her with a VA examination and medical opinion on the etiology of her current Hepatitis C. See Shade, supra. Accordingly, the service-connection claim for Hepatitis C is reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. To this extent only, this appeal is granted subject to the further development of this claim on remand. ORDER New and material evidence having been submitted, the claim of entitlement to service connection for Hepatitis C is reopened, subject to the further development of this claim in the remand below. REMAND Unfortunately, a remand is required in this case, for the reopened service-connection claim for Hepatitis C and the higher initial rating for service-connected bilateral hearing loss. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that she is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d) (2012). I. VA Examination and Medical Opinion for Reopened Service-Connection Claim for Hepatitis C After reopening the service-connection claim for Hepatitis C, the Board finds a remand is warranted for a VA examination and medical opinion to determine the etiology of her Hepatitis C. VA's duty to assist the Veteran in substantiating her claim also includes providing a medical examination and/or obtaining a medical opinion when necessary. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2) (West 2002 and Supp. 2011) and 38 C.F.R. § 3.159(c)(4)(i) (2012). As mentioned, there are two positive private medical opinions from a private treating physician, Dr. H.T., MD, dated in September 2008 and October 2009, which note that the Veteran has been treated for Hepatitis C, but that she has no history of IV drug use or other post-service risky activity. In the September 2008 letter, Dr. H.T. stated, "It is my opinion that it is likely that [the Veteran] contracted the virus while in the service, due to her history of blood transfusions. She denies any use of intravenous drugs or any other activity whereby she could have contracted the disease." Similarly, in an October 2009 letter, Dr. H.T. opined, "Therefore, it is as likely as not that she contracted the Hepatitis C virus during military service when she underwent blood transfusions." Nonetheless, the Board finds that these positive private medical opinions by Dr. H.T. are insufficient to resolve the claim, because the bases and rationale for such opinions are unclear, especially since they are not based upon review of the claims file. Inadequate medical examinations include examinations that contain only data and conclusions, do not provide an etiological opinion, are not based upon a review of medical records, or provide unsupported conclusions. Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In contrast, the June 2011 VA examiner provided a negative nexus opinion, stating that: "...[H]er Hepatitis C is less likely related to her military service including the surgeries for vaginal delivery of intra uterine pregnancy and excision of ganglion from her left wrist as there is no evidence of blood transfusions during those surgeries and also her Hepatitis C condition is less likely related to the vaccinations or injections with air gun as there is no scientific evidence that Hepatitis C is caused by air gun injections or vaccinations. It is the opinion of this examiner that her Hepatitis C is more likely related to the risk factors for her Hepatitis C, including tattoo mark on her chest, piercing of the ears, 3 back surgeries during 1991, 1993, 1995, and 1997 and/or other factors occurred after discharge from service." However, the basis of the examiner's negative medical opinion may be flawed. Indeed, this opinion would attribute her Hepatitis C, at least partially, to her post-service spinal surgeries in the 1990s. However, the examiner does not reconcile the possibility that these post-service surgeries instead followed earlier indications of Hepatitis C, raised in letters from the American Red Cross. In that regard, an August 1989 letter from the American Red Cross notes that she is no longer eligible to donate blood because she has a past history of elevated ALT laboratory results (January 12, 1988) and she "could still be a carrier for non-A, non-B Hepatitis." Another American Red Cross letter, dated December 23, 2004, additionally notes the Veteran had five autologous blood donations between 1991 and 1997, all confirmed positive for Hepatitis C and had elevated ALT ranges. Moreover, these first diagnoses for Hepatitis C were made long before the Veteran was first tattooed, in approximately 2009-2010; however, the examiner partially and incorrectly attributed her Hepatitis C to her tattoo. See September 2011 Hearing Transcript (T.) at 13-14. Thus, the Board finds that the June 2011 VA examiner's negative medical opinion is also inadequate to resolve the claim, because it appears to be based on inaccurate factual premises and possibly lacks thorough review of the claims file. When VA undertakes to examine a Veteran, VA is obligated to ensure that that examination is adequate. See Barr v. Nicholson, 21. Vet. App. 303 (2007). See also Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board finds it necessary to obtain a more thorough and adequate VA medical opinion on the etiology of the Veteran's current Hepatitis C. See McLendon v. Nicholson, 20 Vet. App. 79 (2006), citing 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). II. VA Examination of Severity of Bilateral Hearing Loss At the Veteran's personal hearing, she testified that her hearing loss has actually worsened since the last VA compensation audiological examination, performed in September 2010. In particular, she testified that she relies more on closed captioning, presumably while watching television. September 2011 Hearing Transcript (T.) at 6. The Veteran should undergo another VA compensation examination to reassess the severity of her service-connected bilateral hearing loss, including appropriate findings regarding any associated functional impairment. See VAOPGCPREC 11-95 (April 7, 1995) (explaining that while the Board is not required to direct a new examination simply because of the passage of time, a new examination is appropriate when the claimant asserts that the disability in question has undergone an increase in severity since the time of the last examination). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for another VA audiological examination to reassess the severity of her bilateral hearing loss disability. The examiner should review the claims file for this condition's history. The examiner should identify auditory thresholds, in decibels, at frequencies of 1000, 2000, 3000, and 4000 Hertz, and the resultant average. A Maryland CNC Test also should be administered to determine speech recognition ability. Any additional evaluations, studies, and tests deemed necessary by the examiner should be conducted. The examiner must describe the functional effects of the Veteran's bilateral hearing loss disability, including on her occupational functioning and daily activities. The examiner should be specifically asked whether the Veteran's hearing loss results in a marked interference with employment, to include causing her to be unemployable. 2. Schedule the Veteran for an appropriate VA examination in order to determine the nature and etiology of her Hepatitis C disability. It is imperative that the claims file be made available to the examiner and reviewed in connection with the examination. Any medically indicated special tests should be accomplished, and all special tests and clinical findings should be clearly reported. The examiner should respond to the following: a) Please confirm if the Veteran currently has a Hepatitis C disability. b) For each disability found, did it at least as likely as not (a 50% or higher degree of probability) have its clinical onset during the Veteran's period of service, or is any such disability otherwise related to such period of service, including to any in-service injury or disease? Address the conflicting medical etiological opinions of record, particularly the negative medical opinion from the June 2011 VA examiner and the positive medical opinions from Dr. H.T., MD, dated in September 2008 and October 2009. Also address the August 1989 and December 2004 letters from the American Red Cross, which raised indications of Hepatitis C as early as 1988-1991. A rationale for all requested opinions shall be provided by the examiner. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. Then readjudicate the claims in light of any additional evidence. If these claims are not granted to the Veteran's satisfaction, send her a Supplemental SOC (SSOC) and give her an opportunity to respond to it before returning the file to the Board for further appellate consideration of these claims. The appellant 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 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). ______________________________________________ Carole Kammel Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs