Citation Nr: 1316031 Decision Date: 05/15/13 Archive Date: 05/29/13 DOCKET NO. 04-07 644A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE 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 hepatitis C. 3. Entitlement to a disability rating greater than 20 percent for diabetes mellitus. 4. Entitlement to an rating in excess of 10 percent for diabetic retinopathy. (The Veteran's claims of service connection for PTSD, whether new and material evidence has been received to reopen a claim of service connection for hypertension, to include as due to diabetes mellitus or herbicide exposure, an initial rating greater than 60 percent prior to January 9, 2012, and greater than 80 percent thereafter for diabetic nephropathy, an effective date earlier than September 11, 2007, for an award of a total disability rating based on individual unemployability (TDIU), an effective date earlier than September 11, 2007, for a grant of service connection for diabetic nephropathy, whether new and material evidence has been received to reopen a claim of service connection for an acquired psychiatric disability other than PTSD, to include paranoid schizophrenia and manic depression, and entitlement to service connection for a bilateral foot disability are the subject of a separate Board decision.) WITNESSES AT HEARINGS ON APPEAL The Veteran & his wife ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from April 1967 to March 1970. This case has a long and complicated procedural history. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied, in pertinent part, the Veteran's claim for a disability rating greater than 20 percent for diabetes mellitus and also determined that new and material evidence had not been received sufficient to reopen a claim of service connection for hepatitis C. A Central Office Board hearing was held in March 2006 before Veterans Law Judge (VLJ) Mark F. Halsey and a copy of the hearing transcript has been added to the record. The Board observes that, in a September 2000 rating decision, the RO denied the Veteran's request to reopen a claim of service connection for hepatitis C. The Veteran did not appeal this decision, and it became final. See 38 U.S.C.A. § 7104 (West 2002). The Veteran also did not submit any new and material evidence relevant to this claim within 1 year of the September 2000 rating decision which would render this decision non-final for VA purposes under 38 C.F.R. § 3.156(b). Although he submitted a statement in November 2000, this statement was duplicative of statements previously of record and as such it is not new and material evidence. See Buie v Shinseki, 24 Vet. App. 242, 251-52 (2011) (explaining that, when evidence is received within one year of a rating decision, the Board's inquiry is not limited to whether those statements constitute notices of disagreement but whether those statements include the submission of new and material evidence under 38 C.F.R. § 3.156(b)). The Board does not have jurisdiction to consider a claim that has been adjudicated previously unless new and material evidence is presented. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Therefore, the issue of whether new and material evidence has been received to reopen a claim of service connection for hepatitis C is as stated on the title page. Regardless of the RO's actions, the Board must make its own determination as to whether new and material evidence has been received to reopen this claim. That is, the Board has a jurisdictional responsibility to consider whether a claim should be reopened. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). In May 2006, the Board remanded these claims to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. The Board directed the RO/AMC to provide the Veteran with appropriate VCAA notice (which was provided in May and October 2006) and to readjudicate the claim (which was accomplished in a June 2008 Supplemental Statement of the Case (SSOC)). See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Board notes that the Veteran appointed an attorney to represent him in August 2008 and revoked all prior powers of attorney in his claims file. The Veteran's attorney subsequently notified VA in February 2010 correspondence that she was withdrawing from her representation of the Veteran before VA. Thus, the Veteran currently represents himself. In a February 2012 rating decision, the RO granted a separate 10 percent rating for service-connected diabetic retinopathy, effective June 10, 2011. This grant arose out of the Veteran's claim for a rating in excess of 20 percent for service-connected diabetes to include diabetic retinopathy. As this is not the maximum rating allowed, the claim for a rating in excess of 10 percent is still in appellate status. In May 2012, a Travel Board hearing was held before VLJ Kimberly Osborne in which the Veteran and his wife testified on the issues of whether new and material evidence has been received to reopen a claim of service connection for hepatitis C and entitlement to a disability rating greater than 20 percent for diabetes mellitus with retinopathy. The Board notes in this regard that the law requires that the VLJ who conducts a hearing on appeal must participate in any decision made on that appeal, and that the matter will be decided by a three member panel of VLJs. See 38 U.S.C.A. § 7102 (West 2002); 38 C.F.R. § 20.707 (2011). The United States Court of Appeals for Veterans Claims (Court) recently held that a Veteran is entitled to have an opportunity for a hearing before all Board members who will ultimately decide the appeal. Arneson v. Shinseki, 24 Vet. App. 379 (2011). Pursuant to the Court's recent holding in Arneson, a letter was sent to the Veteran in September 2012 notifying him that he had the option of having a third hearing with a VLJ who would be assigned to the panel to decide his appeal. The Veteran was advised that, if he did not respond within 30 days, the Board would assume that he did not want a hearing and would proceed accordingly. The Veteran did not respond to this letter. As is explained below, new and material evidence has been received to reopen a claim of service connection for hepatitis C. The issues of entitlement to service connection for hepatitis C, to a disability rating greater than 20 percent for diabetes mellitus, and for a rating in excess of 10 percent for diabetic retinopathy are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. In September 2000, the RO determined that new and material evidence had not been received to reopen a previously denied claim of service connection for hepatitis C and the Veteran did not appeal. 2. The evidence submitted since September 2000 relates to an unestablished fact necessary to substantiate the claim of service connection for hepatitis C. CONCLUSIONS OF LAW 1. The September 2000 RO decision, which denied the Veteran's request to reopen a claim of service connection for hepatitis C, is final. 38 U.S.C.A. § 7105(c) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). 2. Evidence submitted since the September 2000 RO decision in support of the claim of service connection for hepatitis C is new and material; accordingly, this claim is reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify the appellant of information and evidence necessary to substantiate the claim and redefined its duty to assist him in obtaining such evidence. 38 U.S.C.A. §§ 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326 (2012). With respect to the Veteran's request to reopen the previously denied service connection claim for hepatitis C, given the favorable disposition of the action here, which is not prejudicial to him, the Board need not assess VA's compliance with the VCAA. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). In September 2000, the RO denied the Veteran's request to reopen the previously denied claim of service connection for hepatitis C. A finally adjudicated claim is an application which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. 38 U.S.C.A. §§ 7104, 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.160(d), 20.302, 20.1103 (2012). The Veteran did not initiate an appeal of the September 2000 rating decision and it became final. He also did not submit any new and material evidence relevant to this claim within 1 year of the September 2000 rating decision which would render this decision non-final for VA purposes under 38 C.F.R. § 3.156(b). See Buie, 24 Vet. App. at 251-52. The November 2000 statement is cumulative of evidence already of record and previously considered by the RO. The claim of service connection for hepatitis C may be reopened if new and material evidence is received. Manio v. Derwinski, 1 Vet. App. 140 (1991). The Veteran filed an application to reopen his previously denied service connection claim for hepatitis C in a letter which was date stamped as received by the RO on March 5, 2004. New and material evidence is defined by regulation. See 38 C.F.R. § 3.156(a) (2012). As relevant to this appeal, new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the 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. Id. In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). With respect to the Veteran's application to reopen a claim of service connection for hepatitis C, the evidence before VA at the time of the prior final RO decision in September 2000 consisted of the Veteran's service treatment records and post-service VA treatment records and information submitted by the Veteran which he obtained from the Internet concerning hepatitis C. The RO noted that the Internet information submitted by the Veteran referred generally to hepatitis C, how it was transmitted, who was at risk for this disease, and the effects of hepatitis C on liver transplants. The RO also noted that the Veteran had submitted "many years of blood and serum reports, as well as many drug screen reports (using urine samples." These records showed that the Veteran tested positive for hepatitis A in May 1992 and had been seen for chronic hepatitis in June 1997. The RO concluded that, although this evidence addressed the Veteran's hepatitis C, it did not indicate that this disability was related to active service. Thus, the claim was not reopened. The newly received evidence includes voluminous additional post-service VA and private outpatient treatment records and examination reports and the Veteran's lay statements and March 2006 and May 2012 Board hearing testimony. The Veteran provided a list of his possible risk factors for hepatitis C in March 2004. His reported risk factors included using intravenous drugs (heroin) in 1971 but no drug or alcohol use during active service. He also reported a pre-service history of tattoos or body piercings but denied ever sharing toothbrushes or razor blades, acupuncture with non-sterile needles, or any blood transfusions. He finally reported that his risk factors for hepatitis C included receiving immunizations through air gun injections during service. The Veteran testified at his March 2006 Board hearing that he had been treated for multiple liver problems, to include hepatitis C, during active service. See Board hearing transcript dated March 10, 2006, at pp. 25-26. He also testified that his hepatitis C risk factors included post-service illegal drug use. Id., at pp. 27-8. He testified further that he had been told by a private treating physician that his hepatitis C possibly was related to active service. Id., at pp. 28-9. The Veteran testified at his May 2012 Board hearing that he had used drugs and alcohol and was "self-medicating" after his service separation. See Board hearing transcript dated May 15, 2012, at pp. 6. He also testified that he had been told by a private treating physician that his current hepatitis C was related to his in-service liver problems. Id., at pp. 48. On VA examination for hepatitis C in May 2008, it appears that the VA examiner noted the Veteran's reported risk factors for hepatitis C. The diagnosis offered by this examiner was hepatitis C antibody positivity with normal liver examination. The May 2008 VA examiner opined that there was nothing in the Veteran's claims file or service treatment records which established a medical nexus between active service and his current hepatitis C antibody positivity. This examiner then opined that it was less likely than not that "even if the [Veteran's] hepatitis C were confirmed (biopsy, further lab)" it would be related to active service. The rationale for this opinion was that there was no evidence in the medical literature supporting a finding that hepatitis C spread through the use of immunization air gun injections. The rationale also was that the Veteran had greater risk factors "involving the tattoo and the intravenous drug abuse." VA outpatient treatment records dated subsequent to May 2008 suggest that the Veteran has been diagnosed as having hepatitis C which could be attributed to active service. With respect to the Veteran's application to reopen his claim of service connection for hepatitis C, the Board notes that the Veteran's claim was denied based on the lack of submission of new and material evidence. The RO determined that none of the evidence showed that the Veteran's hepatitis C was caused by his military service. The Veteran has identified specific risk factors for hepatitis C in letters submitted to VA since the prior final rating decision issued in September 2000 which denied his original service connection claim for hepatitis C. The Veteran also testified at both of his Board hearings concerning his reported risk factors for hepatitis C. In a March 2004 risk factor for hepatitis questionnaire the Veteran reported that he was exposed to blood from receiving [immunization] shots with a gun in Vietnam. He stated that he received other immunizations where gun produced blood. Recent VA outpatient treatment records dated subsequent to May 2008 indicate that the Veteran has been diagnosed as having hepatitis C. The Veteran also stated that he was told by a treating physician that his hepatitis may be related to service. This evidence is new because it has not been submitted previously to agency adjudicators. This evidence also is material because it raises a reasonable possibility of substantiating the Veteran's service connection claim for hepatitis C. The Board observes in this regard that, in Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court held that the phrase "raises a reasonable possibility of substantiating the claim" found in the post-VCAA version of 38 C.F.R. § 3.156(a) must be viewed as "enabling" reopening of a previously denied claim rather than "precluding" it. All of the newly submitted evidence is presumed credible for the limited purpose of reopening the previously denied claim. See Justus, 3 Vet. App. at 513. Thus, the Board finds that the evidence submitted since September 2000 is new, in that it has not been submitted previously to agency adjudicators, and is material, in that it relates to an unestablished fact necessary to substantiate the claim of service connection for hepatitis C and raises a reasonable possibility of substantiating it. Because new and material evidence has been received, the Board finds that the previously denied claim of service connection for hepatitis C is reopened. ORDER As new and material evidence has been received, the previously denied claim of service connection for hepatitis C is reopened; to this extent only, the appeal is granted. REMAND A remand is necessary before the Veteran's reopened claim of service connection for hepatitis C and his claim for a disability rating greater than 20 percent for diabetes mellitus can be adjudicated on the merits. The Veteran specifically contends that his hepatitis C is related to active service and his service-connected diabetes mellitus is more disabling than currently evaluated. The Veteran provided testimony to this effect at both of the Board hearings held during the pendency of this appeal. The Veteran testified at his May 2012 Board hearing that his service-connected diabetes mellitus had worsened. He specifically testified that he was retaining fluid due to his service-connected diabetes mellitus. See Board hearing transcript dated May 15, 2012, at pp. 19-20. He also testified that he had to regulate his activities and did not go out due to his service-connected diabetes mellitus. Id., at pp 29-30. A review of the Veteran's most recent VA examination for diabetes mellitus in January 2012 shows that the VA examiner specifically found that the Veteran's service-connected diabetes mellitus did not require regulation of activities. The Board notes that VA's duty to assist under the VCAA includes obtaining an examination or medical opinion when necessary. The Court has held that when a Veteran alleges that his service-connected disability has worsened since he was examined previously, a new examination may be required to evaluate the current degree of impairment. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Given the Veteran's contentions, the Board finds that, on remand, he should be scheduled for updated VA examination to determine the current nature and severity of his service-connected diabetes mellitus. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. The Veteran testified at his May 2012 Board hearing that his service-connected diabetic retinopathy had worsened since his most recent VA examination in January 2012. He specifically testified that he experienced leaking in his eyes and vision changes. See Board hearing transcript dated May 15, 2012, at pp 30-32. He also testified that he needed to use eye drops in his eyes to treat high eye pressure as a result of his service-connected diabetic retinopathy. Id., at pp. 32. The Board notes that VA's duty to assist under the VCAA includes obtaining an examination or medical opinion when necessary. The Court has held that when a Veteran alleges that his service-connected disability has worsened since he was examined previously, a new examination may be required to evaluate the current degree of impairment. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Given the Veteran's contentions, the Board finds that, on remand, he should be scheduled for updated VA examination to determine the current nature and severity of his service-connected diabetic retinopathy. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. A review of the Veteran's voluminous claims file also shows that there are outstanding records from the Social Security Administration (SSA) which have not been obtained and associated with the claims file. According to information obtained electronically from SSA by RO personnel in April 2009, the Veteran is in receipt of SSA disability benefits with a disability onset date of June 15, 1994. It is not clear from a review of this information from SSA what disabilities formed the basis for SSA's decision awarding the Veteran SSA disability benefits. To date, the Veteran's SSA records have not been obtained and associated with his voluminous claims file. The Board notes that VA has a duty to obtain SSA records when it has actual notice that the Veteran is receiving SSA benefits. Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Accordingly, on remand, the RO/AMC must contact SSA and obtain the Veteran's complete SSA records, including any administrative decision(s) on his application for SSA disability benefits and all underlying medical records. The Veteran testified at his May 2012 Board hearing that he would be submitting additional evidence to the VLJ who held this hearing within a few days of the hearing. See Board hearing transcript dated May 15, 2012, at pp. 55-8. Unfortunately, no evidence was received from the Veteran within a few days of his May 2012 Board hearing. In light of the Veteran's testimony, he should be given an opportunity to submit relevant medical records concerning his claims on appeal. In any event, the Board finds that, on remand, the Veteran's up-to-date VA and private treatment records should be obtained. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask him to identify all VA and non-VA clinicians who have treated him for hepatitis C since his service separation and for his service-connected diabetes mellitus and retinopathy from 2003 to the present. Advise the Veteran not to resubmit any records previously submitted to VA. Obtain all VA treatment records which have not been obtained already. Obtain all treatment records concerning diabetic retinopathy which are dated prior to January 2012. Once signed releases are received from the Veteran, obtain all private treatment records which have not been obtained already. A copy of any records obtained, to include a negative reply, should be included in the claims file. 2. Contact the Social Security Administration (SSA) and request the Veteran's complete SSA records, including any administrative decision(s) on his application for SSA disability benefits and all underlying medical records which are in SSA's possession. A copy of any request(s) sent to SSA, and any reply, to include any records obtained from SSA, must be included in the claims file. 3. Schedule the Veteran for appropriate in-person VA examination to determine the current nature and etiology of his hepatitis C. The claims file and a copy of this remand must be made available to the examiner in conjunction with the examination. All appropriate tests and studies should be accomplished. The Veteran should be asked to provide a complete medical history, to include his reported risk factors for hepatitis C. The examiner is asked to identify any hepatitis C currently experienced by the Veteran. Based on a review of the Veteran's claims file and the results of his physical examination, and the Veteran's statements regarding the development and treatment of his claimed disorder, the examiner is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that hepatitis C, if diagnosed, is related to active service or any incident of service. A complete rationale must be provided for any opinions expressed. The rationale should include a discussion of the Veteran's risk factors and contentions regarding the onset/etiology of hepatitis C. The examiner is advised that the Veteran's reported risk factors for hepatitis C include post-service intravenous drug abuse in 1971, tattoos and body piercings done prior to his entry on to active service in March 1970, and exposure to blood products as a result of air gun immunization injections during active service. The examiner also is advised that the Veteran contends that his hepatitis C was incurred in active service, to include as a result of in-service treatment for an acute febrile illness in June 1968. 4. Schedule the Veteran for an examination to determine the current nature and severity of his service-connected diabetes mellitus. The claims file and a copy of this remand must be provided to the examiner for review. All appropriate testing should be conducted. The Veteran should be asked to provide a complete medical history. Based on a review of the claims file and the results of the Veteran's physical examination, and the Veteran's statements regarding the development and treatment of his claimed disorder, the examiner is asked to state whether the Veteran's service-connected diabetes mellitus requires insulin, restricted diet, and regulation of activities. The examiner also should state whether the Veteran's service-connected diabetes mellitus requires insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring 1 or 2 hospitalizations per year or twice a month visits to a diabetic care provider. The examiner finally is asked to state whether the Veteran's service-connected diabetes mellitus requires more than 1 daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least 3 hospitalizations per year or weekly visits to a diabetic care provider. It should also be noted whether the Veteran experiences progressive loss of weight and strength due to diabetes. 5. Schedule the Veteran for an examination to determine the current nature and severity of his service-connected diabetic retinopathy. The claims file and a copy of this remand must be provided to the examiner for review. All appropriate testing should be conducted. The Veteran should be asked to provide a complete medical history. Based on a review of the claims file and the results of the Veteran's physical examination, and the Veteran's lay assertions, the examiner is asked to identify all impairment caused by the service-connected diabetic retinopathy, including any visual acuity loss and/or visual field loss. The examiner should discuss the severity of all impairment caused by the service-connected diabetic retinopathy. 6. Review all evidence received since the last prior adjudication and readjudicate the Veteran's claims. If the determination remains unfavorable to the Veteran, then the RO should issue a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issues. An appropriate period of time should be allowed for response by the Veteran. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. 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). _______________________________ _______________________________ WAYNE BRAEUER MARK F. HALSEY Veterans Law Judge Veterans Law Judge Board of Veterans' Appeals Board of Veterans' Appeals ______________________________ K. OSBORNE Veterans Law Judge Board of Veterans' Appeals Department of Veterans Affairs