Citation Nr: 1329777 Decision Date: 09/17/13 Archive Date: 09/25/13 DOCKET NO. 07-39 667 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Whether new and material evidence has been received with respect to a claim of entitlement to service connection for Hepatitis C. ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran had active duty service from April 1974 to February 1983 and from January 1984 to September 1995. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the RO which declined to reopen his service connection claim for Hepatitis C. The North Carolina Division of Veterans Affairs withdrew from its representation of the Veteran in August 2009. In a January 2010 decision, the Board denied entitlement to an initial compensable disability rating for a benign liver cyst and hemangioma, denied entitlement to an initial disability rating in excess of 10 percent for a cervical strain with degenerative disc disease, and declined to reopen a claim of service connection for Hepatitis C. The Veteran appealed the Board's decisions regarding the cervical spine and Hepatitis C claims to the United States Court of Appeals for Veterans Claims (Court), which in a July 2011 Memorandum Decision affirmed the Board's decision with respect to the cervical spine evaluation and set aside and remanded the decision declining to reopen the Hepatitis C claim. The Board notes that, in addition to the physical claims file, the Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file as well as the Veteran's paper claims file and will proceed with review of the claim based upon all relevant evidence. The reopened claim of entitlement to service connection for Hepatitis C 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. The Veteran's claim of service connection for Hepatitis C was denied in an unappealed September 2006 rating decision; the Veteran did not file a timely appeal with respect to this decision and no new and material evidence was received within one year of its issuance. 2. Evidence submitted since the September 2006 rating decision relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for Hepatitis C. CONCLUSIONS OF LAW 1. The September 2006 rating decision that denied 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 (2006). 2. The evidence received subsequent to the September 2006 rating decision is new and material and the claim for service connection for Hepatitis C is reopened. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.303, 20.1105 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act As a preliminary matter, the Board is required to address the Veterans Claims Assistance Act of 2000 ("VCAA") that became law in November 2000. The VCAA provides, among other things, that VA will make reasonable efforts to notify a claimant of the relevant evidence necessary to substantiate a claim for benefits under laws administered by VA. The VCAA also requires VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. For new and material claims, the Veteran must be provided with notice regarding the information needed to reopen the previously denied claim. See Kent v. Nicholson, 20 Vet. App. 1 (2006). In this case, as the Board is reopening the Veteran's claim of entitlement to service connection for Hepatitis C, no further discussion of the Veterans Claims Assistance Act of 2000 and the implementing regulations is required at this point. II. New and material evidence As a general rule, a claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to a claim that is final. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. Under 38 C.F.R. § 3.156(a), new evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means 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). When determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). In order for the evidence to be sufficient to reopen a previously denied claim, the evidence must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. The Board may then proceed to the merits of the claim on the basis of all of the evidence of record. 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 he has provided new and material evidence as to another missing element). In this case, a September 2006 rating decision denied the Veteran's claim for service connection for Hepatitis C, as there was no competent medical evidence establishing such a diagnosis while in-service, or a nexus between any currently diagnosed condition and service. The Veteran did not file a timely appeal with respect to this decision and no new and material evidence was received within a year of its issuance to preclude its finality under 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). The evidence considered in the September 2006 rating decision included the Veteran's service treatment records, a December 1995 VA examination, VA treatment records dated between October 2002 and October 2004 and various private treatment notes. The Veteran's May 1983 entrance examination was negative for any relevant abnormalities and he denied suffering from hepatitis in his accompanying Report of Medical History (RMH). An impression of a hepatic cyst located on the posterior right lobe of the liver was noted in a June 1992 ultrasound. Multiple simple hepatic cysts were noted in a June 1992 computed tomography (CT) scan. Complaints of a low blood platelet count and an impression of thrombocytopenia were noted in a November 1994 treatment note. A December 1994 abdominal ultrasound noted a normal liver and was negative for liver cysts. Complaints of right upper quadrant pain for the past six months were noted in a June 1995 treatment note and an assessment of a right liver mass was made. Accompanying "Hepatitis Panel" results indicated that that the Veteran's Hepatitis B surface antibody was "reactive." An August 1995 CT chest revealed a complex lobular mass in the anterior right lobe segment of the liver and diffusely scattered liver cysts. There was no discharge examination contained in the claims file. A December 1995 VA examination reflected the Veteran's reports of liver pain and a history of a benign adenoma of the liver. A diagnosis of a history of probable benign liver adenoma was made. A March 2004 VA treatment note shows that the Veteran was diagnosed as having Hepatitis C, and reported a history of cocaine use. An assessment of chronic Hepatitis C without any clinical evidence of liver disease was noted in a June 2004 VA treatment note. He denied a history of blood transfusions, dialysis, tattoos, body piercings or the use of intravenous drugs. A history of cocaine use was again reported. A September 2004 VA treatment note addendum indicated that the Veteran had used intranasal cocaine twice. A February 2005 private treatment note reflects that the Veteran denied a history of intravenous drug use, blood transfusions, tattoos placements or a significant liver problem. A past history of intranasal cocaine use was repeated. Physical examination was noted to essentially unremarkable. An assessment of Hepatitis C infection was made with laboratory data pending. The examiner noted that the Veteran "most likely" suffered from chronic Hepatitis C based on his history. Accompanying laboratory testing indicated that Hepatitis B testing was "positive." In a December 2005 statement the Veteran reported that he had no Hepatitis risk factors during service, including the use of intranasal cocaine. He indicated that he was diagnosed with the condition prior to his discharge from service. Evidence received since the September 2006 rating decision includes VA treatment records and VA examinations conducted in August and November 2008, and October 2012. A January 2008 VA treatment note indicated that the Veteran had been diagnosed with Hepatitis C and that his Hepatitis B status was "indeterminate." His liver enzymes were noted to be within the normal range. The Veteran's liver function tests were noted to be normal and did not reveal active liver disease in an August 2008 liver examination. Hepatitis C was not found in a November 2008 VA examination. Newly submitted treatment records, including the January 2008 VA treatment note, show current findings related to Hepatitis C and that he may have been diagnosed with Hepatitis B. In addition, the treatment provider indicated that, after review of previous medical records, there was a 1995 laboratory confirmation of HCV genotype 1a. Finally, the Veteran was afforded a VA examination dated in October 2012 in connection with a claim for increased rating in his service-connected liver disability. In this examination, the Veteran was noted to have been diagnosed with Hepatitis C in 2012. The examiner also noted a history of Hepatitis C diagnosed in September 2005. Risk factors for Hepatitis C included accidental exposure to blood by health care workers and vaccines in the military that were done in 1974 with the same needle that was used on other soldiers. Based on the foregoing, the Board finds that the evidence that has been added to the Veteran's claims file since the September 2006 RO decision is new in that it had not previously been submitted. These records indicate a current diagnosis related to the Veteran's claim and indications that such condition may be related to his military service. It is noted once again that the credibility of this evidence is presumed for the limited purpose of reopening the claims. Accordingly, the Board finds that because this evidence addresses elements of the Veteran's claim that were not present in September 2006, it is considered to be material. This new evidence, when considered by itself or in conjunction with the evidence previously of record, relates to an unestablished fact necessary to substantiate the Veteran's claim and is not cumulative or redundant in nature. Therefore, the evidence is considered to be both new and material and the claim is reopened. 38 C.F.R. § 3.156(a). ORDER The claim of entitlement to service connection for Hepatitis C is reopened, and to this extent only, the appeal is granted. REMAND 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 claim so that he 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 benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d). In this case, the medical evidence, outlined in detail above, indicates that the Veteran has been diagnosed with Hepatitis C and that this condition may be related to his military service. As such, the Veteran should be afforded a VA examination in connection with his claim in order to determine whether he has Hepatitis C that is related to his military service. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA's duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159; see also McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third prong of 38 C.F.R. § 3.159(c)(4)(I), which requires that the evidence of record 'indicate' that the claimed disability or symptoms may be associated with service, establishes a low threshold); see also Locklear v. Nicholson, 20 Vet. App. 410 (2006). Upon remand, the Veteran should also be afforded an opportunity to submit additional medical evidence in connection with his claim. VA treatment records should also be updated. In this regard, the Board notes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered to be constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Pursuant to the VCAA, VA must obtain identified outstanding VA and private records. See 38 U.S.C.A. § 5103A(b-c); 38 C.F.R. § 3.159(c). Accordingly, the case is REMANDED for the following action: 1. Take appropriate steps to contact the Veteran and request that he identify all VA and non-VA health care providers, other than those already associated with the Veteran's claims file, that have treated him since service for his claimed disability. This should specifically include updated VA treatment records. The aid of the Veteran in securing these records, to include providing necessary authorization(s), should be enlisted, as needed. If any requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file, and the Veteran should be informed in writing. The Veteran may submit medical records directly to VA. 2. Arrange for an appropriate VA examination to determine whether the Veteran has Hepatitis C that is related to his military service. The claims file must be made available to and reviewed by the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. Based on his/her review of the case, the examiner is specifically requested to offer an opinion as to: (a) Has the Veteran had Hepatitis C at any time since December 2007? (b) If the examiner finds that the Veteran has had a diagnosis of Hepatitis C since December 2007, did such disorder have its onset during active duty, within one year of active duty, or is such condition otherwise related to the Veteran's military service? In this regard, the examiner is asked to comment on the Veteran's service and post-service medical treatment records, as well as the medical evidence set forth above and all past VA examination reports afforded in connection with the claim In offering any opinion, the examiner must consider the Veteran's lay statements regarding the incurrence of his claimed disorders and the continuity of symptomatology. The rationale for any opinion offered should be provided. If the examiner finds that he or she cannot provide a nexus opinion without resorting to speculation, the examiner must explain why he or she is unable to provide an opinion without speculation, and sufficiently explain the reasons for that inability. 3. After undertaking any additional development deemed appropriate in addition to that requested above, re-adjudicate the issue remaining on appeal. If any benefit sought on appeal remains denied, provide the Veteran and his representative a supplemental statement of the case. 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). The purpose of the examination requested in this remand is to obtain information or evidence (or both) which may be dispositive of the appeal. Therefore, the Veteran is hereby placed on notice that, pursuant to 38 C.F.R. § 3.655, failure to cooperate by attending a requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). 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). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs