Citation Nr: 1309735 Decision Date: 03/22/13 Archive Date: 04/01/13 DOCKET NO. 10-45 030 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUES 1. Entitlement to service connection for pruritus. 2. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: New Hampshire State Veterans Council WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The Veteran had active military service from August 1981 to May 1987. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which, in part, found that new and material evidence had not been presented sufficient to reopen a previously denied claim for service connection for hepatitis C. The RO also at that time denied service connection for pruritus. The claims are now under the jurisdiction of the RO located in Manchester, New Hampshire. In June 2012, a Travel Board hearing was held before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the Veteran's claims file. The issue of the now reopened service connection claim for hepatitis C being remanded is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Pruritus is not shown to be currently manifested. 2. In an August 2007 decision, the RO denied the Veteran's claim of service connection for hepatitis C; the Veteran was notified of this decision and of her appellate rights; and the Veteran did not perfect an appeal to the decision within the allotted time and the decision became final. 3. The evidence added to the record since the August 2007 RO decision is not cumulative or redundant and, when considered with previous evidence of record, relates to an unestablished fact and raises a reasonable possibility of substantiating the claim of service connection for hepatitis C. CONCLUSIONS OF LAW 1. Pruritus was not incurred in active duty service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303 (2012). 2. The August 2007 rating decision which denied the Veteran's request to reopen a claim for service connection for hepatitis C is final. 38 U.S.C.A. § 7105 (2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). 3. New and material evidence has been submitted since the August 2007 rating decision, and the claim of entitlement to service connection for hepatitis C is reopened. 38 U.S.C.A. §§ 5108; 38 C.F.R. §§ 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Concerning the current claim in which the Veteran seeks to be service connected for pruritus, VA satisfied the duty to notify through an August 2009 letter to the Veteran from the RO. The duty to assist the appellant has also been satisfied in this case. The Veteran's service treatment records, and VA and private medical records are in the claims file and were reviewed by both the RO and Board in connection with the appellant's claim. The appellant has not informed VA of any outstanding existing medical records which may be helpful in the adjudication of her claim. VA is not on notice of any evidence needed to decide the claim which has not been obtained. The Board has considered whether the Veteran should be scheduled for a VA examination with a medical opinion regarding a possible relationship between the claimed pruritus disorder at issue and her military service. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds, however, that such an examination is not necessary to decide this claim. The Secretary's obligation under 38 U.S.C. § 5103A(d) to provide the Veteran with a medical examination or to obtain a medical opinion occurs when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent evidence on file for the Secretary to make a decision on the claim. As is discussed in greater detail below, the Board notes the following: the service treatment records are negative for any complaints of pruritus; there is no clinical evidence of a current skin disability manifested by pruritus; the clinical records do not support the possibility of a relationship between the Veteran's claimed pruritus and her service; and most importantly, there is no clinical indication that any such a disability is causally related to or aggravated by active service. Based on the foregoing, the record does not establish that an examination is warranted pursuant to McLendon. The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of her claim seeking service connection for pruritus and did in fact participate. Washington v. Nicholson, 21 Vet. App. 191 (2007). This participation included her appearing at a hearing at the RO in June 2012 which was conducted by the undersigned. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. In regard to the Veteran's reopened claim in this case, the Board finds that new and material evidence has been submitted sufficient to reopen the above-mentioned claim seeking service connection for hepatitis C previously denied in the August 2007 RO decision. Thus, further discussion concerning those requirements discussed above, regarding VA's duties to notify and assist, is not necessary as this action is favorable to the Veteran, and it therefore cannot be prejudicial to her regarding this aspect of her appeal. See Simmons v. Nicholson, 487 F.3d 892 (Fed. Cir. 2007); Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007); Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Contentions As part of a VA Form 21-4138, dated in July 2009, the Veteran sought service connection for pruritus. She added that while in the military she complained of itching on her wrist, and she later came to find out it was related to her hepatitis C. The Veteran also mentioned that she was prescribed Eucerian to control her itching while in the military. Also as part of this form, the Veteran seemed to allege that the development of her hepatitis C occurred as a result of her being immunized in service by jet gun injections. She added that the in service medical personnel did not wipe the arms of the soldiers between the injections. She denied having blood transfusions in the military, and added she did not abuse drugs. The Veteran also mentioned that neither her husband nor children had been affected by her hepatitis C. Law and Regulations Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. When the disease identity is established, there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013) (holding that a finding of continuity of symptomatology to presume service connection for a chronic disease applies only to the diseases listed at 38 C.F.R. § 3.309(a)). Neither pruritus nor hepatitis C is included in 38 C.F.R. § 3.309(a). In adjudicating a claim, the Board must assess the competence and credibility of the veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Veteran is competent to provide facts about what she experienced; for example, she is competent to report that she engaged in certain activities in service and currently experiences certain symptomatology. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Competency, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board acknowledges that it cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan, at 1337. However, such lack of contemporaneous evidence is for consideration in determining credibility. Concerning applications to reopen claims that have been the subject of a prior final denial by VA, nothing pertaining to the duty to assist claimants shall be construed to require VA to reopen a claim that has been disallowed except when new and material evidence is presented or secured. To provide adequate notice with regard to an application to reopen a claim, VA must look at the bases for the denial in the prior decision and respond with a notice letter that describes what evidence would be necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial. Kent v. Nicholson, 20 Vet. App. 1 (2006). Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). 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 decisionmakers. 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). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In determining whether new and material evidence has been received to reopen a claim, there is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should consider whether the evidence could reasonably substantiate the claim were the claim to be reopened, including by triggering VA's duty to obtain a VA examination. Id. at 118. Moreover, the veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. Id. at 120 (noting the assistance of 38 C.F.R. § 3.159(c)(4) would be rendered meaningless if new and material evidence required a claimant submit medical nexus evidence when she has provided new and material evidence as to another missing element). Factual Background The Veteran's service treatment records make no mention of either pruritus or hepatitis C. Several treatment records do note treatment afforded the Veteran for folliculitis and seborrhea (January 1983, January 1984, and March and April 1987) which affected her scalp. An immunization form is of record, noting that the Veteran received many vaccinations from November 1981 to January 1983. The Board notes at this juncture that the RO granted the Veteran service connection for seborrheic dermatitis of the scalp in January 2002. The Veteran's claim seeking service connection for pruritus, a separately-identified skin disorder, was not received until 2009. A March 1994 letter from the American Red Cross to the Veteran informed her that the testing of her blood after a recent blood donation had revealed the presence of hepatitis C. The report of a September 2001 VA skin diseases examination shows that the Veteran was treated in the military for seborrhea. The Veteran described symptoms of pruritus and pain; the examiner commented that examination revealed no active skin disease. A history of seborrhea with cyst formation was diagnosed. The Veteran first sought service connection for hepatitis C in May 2002. A June 2002 VA hepatitis C outpatient consult report shows that the hepatitis C antibody had been identified in may 2002. The Veteran denied all risks for hepatitis C, adding the only risk factor she could think of was her having her ears pierced as a young child. The RO denied the Veteran's claim seeking service connection for hepatitis C in July 2002. She did not appeal this decision. She sought to reopen her hepatitis C claim in October 2003. See VA Form 21-4138. A September 2003 VA outpatient treatment record shows a history of a chronic hepatitis C infection. Other VA outpatient treatment records on file, dated in June 2004, and March and July 2005, show treatment afforded the Veteran for hepatitis C. The June 2004 record indicated that she had been taking interferon alpha for almost one year. The RO, in February 2004, found that new and material evidence had not been submitted to reopen the Veteran's service connection claim for hepatitis C. While the Veteran expressed her notice of disagreement with this decision in February 2005, and while a statement of the case (SOC) was issued in October 2006, the Veteran failed to perfect her appeal in a timely manner by the submission of a substantive appeal. The report of a VA fee-basis skin examination conducted in March 2005 includes diagnoses of dermatophytosis and folliculitis. Pruritus was not diagnosed. In August 2007, the RO again found that new and material evidence had not been submitted to reopen a claim for service connection for hepatitis C. The Veteran failed to perfect a timely appeal to this decision. The RO commented in August 2007 that evidence was not of record showing that the Veteran's hepatitis C was incurred in or aggravated by her military service. The RO also informed the Veteran that we do not grant service connection for this condition unless hepatitis can be shown in-service, or that a medical opinion indicates your risk factors, or a particular in-service injury contributed to this condition. The Veteran sought to reopen her claim for hepatitis C in August 2009. See VA Form 21-4138. With this form, the Veteran also included medical treatise evidence, in which, while it was reported that pruritus was among the most common symptoms reported by people who have hepatitis C (20 percent), it also indicated that it was more commonly found in people with advanced liver disease and cirrhosis. Several private medical records on file, dated from 2005 to 2012, are shown to reveal diagnoses of hepatitis C. One such record, dated in May 2005, shows that the Veteran reported that her husband had hepatitis C. It was also mentioned that the Veteran had a history of multiple transfusions with known von Willebrand's disease. A January 2009 VA outpatient record shows a diagnosis of hepatitis C. These private medical records also show that in January 2010 the Veteran denied having skin-related problems. At her June 2012 hearing before the undersigned, the Veteran submitted additional private medical evidence, with a waiver of RO initial consideration. This included a June 2012 private medical record from Dr. J.G., in which the physician noted that he was asked to discuss potential modes of and timing of transmission concerning the Veteran's hepatitis C. He noted that it was not possible to determine when the Veteran first acquired hepatitis C, and added that he was also unable to make any connection between the disorder and the manner in which the Veteran was vaccinated during her military service. The doctor did note that, if injections were given to multiple people with the same needle, this could be a situation where transmission of hepatitis C could occur. After the June 2012 hearing, the Veteran submitted a private medical report, dated the day before the hearing. The report, completed by Dr. A.G., noted the Veteran's history of first finding out she had hepatitis C in 1994 following her donating blood. The Veteran denied risk factors, and added it was her belief that she acquired the hepatitis C by being injected with a jet gun vaccinator in the military. She added that neither her husband nor her children were positive for hepatitis C. The Board notes, however, that the Veteran in May 2005, as discussed above, noted that her husband did in fact have a history of hepatitis C. Dr. A.G. opined that it was "quite plausible" that the Veteran was exposed to hepatitis C via the use of a jet vaccination gun in the military. He added that as, unfortunately, testing for hepatitis C was not taking place at that time, there was no way to "be sure" about this. The Veteran also testified in June 2012 that she had never had a blood transfusion. This too is contradicted by the information supplied in the above-discussed May 2005 private medical record. She testified that it was her belief that her hepatitis C had been acquired as a result of being injected in the military by a jet gun, where the she was inoculated by the same gun as other service members. She also testified that while in Germany, while in the military, she had problems with itching, including in her vaginal area and her wrists. She added her itching symptoms are intermittent, and treated with antihistamines. Analysis Pruritus After having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence on file is against a grant of service connection for pruritus. Subsequent to service, the Veteran initially sought service connection for this disorder in July 2009. See VA Form 21-4138. Both the in-service and post-service medical record is devoid of findings relating to the presence of pruritus. While the Veteran was seen in service for complaints of other skin-related problems, as discussed above, and while service connection was granted in 2002 for seborrheic dermatitis of the scalp, pruritus was not diagnosed in service. The Board notes that the Veteran is competent to testify as to observable symptoms she experienced during and after active duty. The Board finds that her assertions are credible. However, the contentions by the Veteran that she has pruritus as a result of her active duty does not constitute medical evidence in support of her claim. Although lay persons are competent to provide opinions on some medical issues, the specific issue in this case of whether the Veteran had pruritus during active duty or thereafter falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). As a result, the assertions by the Veteran cannot constitute competent medical evidence in support of her claim. The Board is aware that lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). Additionally, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Further, lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau. The Veteran is competent to state that she observed the claimed symptoms during or after service. The Board finds her to be credible in this regard. However, she is not competent to attribute the coincidence of symptoms occurring during or after service as establishing the diagnosis and etiology of her currently-claimed disability. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. § 1131; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Evidence must show that the Veteran currently has the disability for which benefits are being claimed. In the absence of proof of present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Because the Veteran has no current disability related to pruritus, service connection must be denied. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Holton v. Shinseki, 557 F.3d 1362 (2009); Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C.A. § 5107(b), Gilbert. Hepatitis C The claim for service connection for hepatitis C was most recently finally denied by the RO in August 2007. This most recent final denial of service connection was essentially premised on a finding that the evidence of record did not show that the Veteran's hepatitis C was incurred in or aggravated by her military service. The RO further found that service connection for hepatitis C was awarded upon a finding of hepatitis in-service, or where a medical opinion was present which indicated that risk factors, or a particular in-service injury, contributed to this condition. The Board has thoroughly reviewed the evidence associated with the claims file subsequent to the August 2007 RO decision and finds that this evidence constitutes new and material evidence which is sufficient to reopen the previously denied claim for service connection for hepatitis C. The majority of this evidence is certainly new, in that it was not previously of record. In addition, cognizant of the "low threshold" concerning the reopening of claims enunciated in Shade, the Board again observes that the private physician A.G. in June 2012 opined that it was "quite plausible" that the Veteran's hepatitis C was brought about by her having been vaccinated in-service by jet vaccination guns. The Board finds that the new evidence raises a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156(a) (2012). As new and material evidence has been received, the claim for service connection for hepatitis C is reopened. The Board notes that the adjudication of the Veteran's appeal does not end with the finding that new and material evidence has been received. In further adjudication of the claim, the presumption that the additional evidence is true without regard to the other evidence of record no longer applies. For the reasons stated in the REMAND portion of this decision below, the Board concludes that additional development is required in order to address the merits of the underlying service connection claim. ORDER Entitlement to service connection for pruritus is denied. New and material evidence having been submitted, the claim of entitlement to service connection for hepatitis C is reopened. To this extent only, the appeal is granted. REMAND The reopening of the claim of service connection for hepatitis C triggers certain duty to assist provisions under the law, which must be met prior to de novo review of the claim. The duty to assist includes obtaining relevant medical reports and examinations where indicated by the facts and circumstances of the individual case. The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Here, an examination is needed to clarify whether or not the Veteran's presently-manifested hepatitis C is etiologically related to her military service. In view of the foregoing, this matter is REMANDED to the RO for the following: 1. The RO/AMC should schedule the Veteran for a VA examination to determine the etiology of her hepatitis C. All indicated tests and studies are to be performed. Prior to the examination, the claims folder and a copy of this remand must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report. The examiner is requested to consider all possible risk factors that may be relevant to the Veteran's current hepatitis C infection, including in-service vaccinations by air gun injection and receipt of blood products during surgical procedures. Following a review of the claims folder and an examination of the Veteran, the examiner is requested to provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's current hepatitis C was caused by her military service, and, specifically, due to her being vaccinated by air gun injections during active service. The examiner is requested to explain the usual incubation period and onset of symptoms for hepatitis C. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 2. The RO/AMC should notify the Veteran that it is her responsibility to report for any VA examination scheduled 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 any scheduled examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 3. The RO/AMC should ensure that the requested action has been accomplished (to the extent possible) in compliance with this REMAND. If the ordered action is determined to have not been undertaken or to have been taken in a deficient manner, appropriate corrective action must be taken. See Stegall v. West, 11 Vet. App. 268 (1998). 4. When the development requested has been completed, the case should be reviewed by the RO/AMC on the basis of additional evidence. If the benefit sought is not granted, the Veteran should be furnished a supplemental SOC (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The purpose of this REMAND is to ensure due process. The Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. No action is required of the Veteran until she is notified. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The appellant has the right to submit additional evidence and argument on the matter 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 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). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs