Citation Nr: 1320066 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 10-40 616 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Whether new and material evidence has been submitted to reopen the issue of entitlement to service connection for hepatitis C, and if so, whether service connection is warranted. 2. Whether new and material evidence has been submitted to reopen the issue of entitlement to service connection for hepatitis B, and if so, whether service connection is warranted. . 3. Entitlement to service connection for hepatitis A. 4. Entitlement to service connection for high blood pressure. 5. Entitlement to service connection for diverticulosis. ATTORNEY FOR THE BOARD J. M. Kirby, Counsel INTRODUCTION The Veteran served on active duty from February 1971 to February 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In his September 2010 VA Form 9, the Veteran requested a hearing before the Board in conjunction with his appeal. However, in a February 2011 written statement, he withdrew that request and asked that his appeal be forwarded to the Board. In his May 2011 written statement, the Veteran asserted that he was disabled from working. Liberally construing the Veteran's statement, the Board finds this document raises an informal claim for nonservice-connected pension. That issue has not yet been addressed by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issues of entitlement to service connection for hepatitis A, hepatitis B, hepatitis C, high blood pressure, and diverticulosis are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center in Washington, D.C. VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. A December 2003 rating decision denied service connection for hepatitis C, and a January 2007 rating decision declined to reopen the claim for service connection for hepatitis C; the Veteran did not submit a notice of disagreement, or documentation constituting new and material evidence, within the one-year appeal period following either rating decision. 2. An August 2004 rating decision denied service connection for hepatitis B, and a January 2007 rating decision declined to reopen the claim for service connection for hepatitis B; the Veteran did not submit a notice of disagreement, or documentation constituting new and material evidence, within the one-year appeal period following either rating decision. 3. Evidence submitted since the January 2007 rating decision raises a reasonable possibility of substantiating the Veteran's claims for service connection for hepatitis C and service connection for hepatitis B. CONCLUSIONS OF LAW 1. The December 2003, August 2004, and January 2007 rating decisions are final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012). 2. Evidence submitted to reopen the claims of entitlement to service connection for hepatitis C and hepatitis B is new and material, and the claims are reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In 2000, VA's duty to notify claimants of information and evidence necessary to substantiate the claim and redefined its duty to assist in obtaining such evidence were enhanced. 38 U.S.C.A. §§ 5102, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326 (2012). Given the favorable disposition of the action here, which is not prejudicial to the Veteran, the Board need not assess VA's compliance with its duties to notify and to assist in the context of the issue of whether new and material evidence has been submitted to reopen the claim. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993). Pertinent procedural regulations provide for reopening a claim of service connection that has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C.A. § 5108. New evidence means existing evidence not previously submitted to VA. 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) (2012). In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the United States Court of Appeals for Veterans Claims (Court) stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. at 118. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). In Elkins v. West, 12 Vet. App. 209 (1999), the Court of Appeals for Veterans Claims held the Board must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108. Then, if new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim, but only after ensuring that VA's duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade, supra. The December 2003 and August 2004 rating decisions denied the Veteran's claims for service connection for hepatitis B and for hepatitis C, respectively. Within one year of these determinations, the Veteran did not express disagreement with either denial, nor was any relevant new and material evidence, medical or lay, physically or constructively received by VA prior to the expiration of the one-year appellate period following each rating decision. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.156(b); 20.201 (2012); see also Buie v. Shinseki, 24 Vet. App. 242 (2010). As such, the December 2003 and August 2004 rating decisions are final. The January 2007 rating decision declined to reopen the Veteran's claims for hepatitis B and for hepatitis C. Within one year of this determination, the Veteran did not express disagreement with this denial, nor was any relevant new and material evidence, medical or lay, physically or constructively received by VA prior to the expiration of the appellate period. Id. As such, the January 2007 rating decision is final. The RO declined to reopen the Veteran's claims in January 2007 because the newly submitted evidence did not address the basis of the prior final denials - namely, that the Veteran did not have a current diagnosis of hepatitis B or related residuals, and that his hepatitis C was not related to his military service. In Shade v. Shinseki, the Court held that VA should focus is inquiry with respect to reopening claims on whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Shade, 24 Vet. App. at 118. Evidence submitted and obtained since the January 2007 rating decision includes the July 2009 statement of the Veteran's private physician, Dr. Ortiz, addressing the Veteran's hepatitis and whether such condition onset or was otherwise related to his military service. The credibility of this statement is presumed for the purposes of reopening. Justus, 3 Vet. App. at 512-513. This evidence is new, as it had not been previously considered by VA and material as it raises a reasonable possibility of substantiating the Veteran's claims. As new and material evidence has been submitted, the issues are reopened. ORDER New and material evidence having been submitted, the Veteran's claim for entitlement to service connection for hepatitis C is reopened, and to that extent only, the appeal is granted. New and material evidence having been submitted, the Veteran's claim for entitlement to service connection for hepatitis B is reopened, and to that extent only, the appeal is granted. REMAND In his May 2011 written statement, the Veteran indicated that he had been receiving treatment at the San Juan VA medical facility for his "service-connected" conditions. Because review of the record reveals that the most recent VA treatment records are dated in June 2006, remand is required so that any outstanding, pertinent VA treatment records can be associated with the claims file. In addition, the Board notes Dr. Ortiz provided a favorable opinion for the Veteran, but her treatment records are not contained in the claims file. Such should be requested on remand. In addition, a VA examination should be scheduled to determine whether the Veteran suffers from a chronic hepatitis disability or residuals thereof, and if so, whether such is related to service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the claims are REMANDED for the following actions: 1. Obtain VA treatment records from the San Juan VA Medical Center relating to the Veteran's claimed hepatitis, diverticulosis, and high blood pressure, either in electronic or paper form dating since June 2006. If the records cannot be obtained, the Veteran should be advised of such. 2. Ask the Veteran to provide the names and addresses of all medical care providers who treated him for hepatitis, diverticulosis, and high blood pressure since service, to specifically include treatment records from Dr. Nanette Ortiz. After securing the necessary release, any relevant records identified should be requested. If the requested records cannot be obtained, the Veteran should be advised of such. 3. After the above has been completed to the extent possible and any records obtained in response to the above associated with the file, the Veteran should be scheduled for a VA hepatitis examination to determine whether the Veteran suffers from any chronic hepatitis or residuals thereof, and if so, whether such is related to service. The claims file must be reviewed by the examiner in conjunction with the examination. All tests deemed necessary, to include those confirming the presence of a current hepatitis disability, should be conducted and the results reported. Following review of the claims file and examination of the Veteran, the examiner should respond to the following: a. Does the Veteran currently suffer from chronic hepatitis A? (1) If so, provide an opinion whether the chronic hepatitis A is related to or a maturation of the hepatitis treated in service, or is otherwise related to service. (2) If not, does he have any residual disability related to hepatitis A? If so, please identify the residual disability and provide an opinion whether the Veteran's hepatitis A and the residual disability identified are related to the hepatitis treated in service, or are otherwise related to service. b. Does the Veteran currently suffer from chronic hepatitis B? (1) If so, provide an opinion whether the chronic hepatitis B is related to or a maturation of the hepatitis treated in service, or is otherwise related to service. (2) If not, does he have any residual disability related to hepatitis B? If so, please identify the residual disability and provide an opinion whether the Veteran's hepatitis B and the residual disability identified are related to the hepatitis treated in service, or are otherwise related to service. c. Does the Veteran currently suffer from chronic hepatitis C? (1) If so, provide an opinion whether the chronic hepatitis C is related to or a maturation of the hepatitis treated in service, or is otherwise related to service. (2) If not, does he have any residual disability related to hepatitis C? If so, please identify the residual disability and provide an opinion whether the Veteran's hepatitis C and the residual disability identified are related to the hepatitis treated in service, or are otherwise related to service. d. The examiner should explain the reasons for the opinions provided. If the examiner cannot provide the above opinions without resorting to speculation, the examiner should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). 4. After undertaking the development above, and any additional development deemed necessary, readjudicate the Veteran's claim. If any benefits sought on appeal remain denied, provide a Supplemental Statement of the Case to the Veteran, and an appropriate period of time in which to respond. Then, return the appeal to the Board. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. All claims 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). ______________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs