Citation Nr: 1544592 Decision Date: 10/20/15 Archive Date: 10/29/15 DOCKET NO. 14-14 776 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hepatitis, to include gastrointestinal symptoms. 2. Entitlement to service connection for hepatitis, to include gastrointestinal symptoms. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Rothstein, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1969 to November 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The issue of entitlement to service connection for hepatitis is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's claim of entitlement to service connection for hepatitis was originally denied in an October 2001 rating decision on the basis that there was no medical evidence of a current residual disability associated with hepatitis; the Veteran did not perfect an appeal as to this determination and new and material evidence was not received within a year of its issuance. 2. Evidence received more than one year since the October 2001 RO decision includes information that was not previously considered and that relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for hepatitis, the absence of which was the basis of the previous denial. CONCLUSIONS OF LAW 1. The RO's October 2001 decision that denied the claim of entitlement to service connection for hepatitis is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.302, 20.1103 (2014). 2. The evidence received since the October 2001 RO decision is new and material and sufficient to reopen the claim of entitlement to service connection for hepatitis. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2014), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2014), impose obligations on VA to provide claimants with notice and assistance. In light of the Board's favorable decision in reopening the Veteran's claim of entitlement to service connection for hepatitis, no further discussion of these VCAA requirements is required as to said issue. See Wensch v. Principi, 15 Vet App 362, 367-368 (2001); see also 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. II. New and Material Evidence In general, an RO decision denying a claim that has become final may not thereafter be reopened and allowed. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. However, 38 U.S.C.A. § 5108 provides that such a claim can be reopened and reconsidered if new and material evidence is presented with respect to that claim. New evidence is defined as "existing evidence not previously submitted to agency decisionmakers"; and material evidence is defined as "existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim." 38 C.F.R. § 3.156(a) (2014). Additionally, "[n]ew 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.; see also Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (explaining that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low"). To decide whether new and material evidence has been presented, the Board looks to the evidence submitted or secured since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). Moreover, for purposes of the new and material evidence analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In this case, the RO initially denied the Veteran's claim of entitlement to service connection for hepatitis, to include gastrointestinal symptoms, in an October 2001 rating decision on the basis that there was no medical evidence of a current residual disability associated with hepatitis. Specifically, the RO explained that although service treatment records (STRs) demonstrated that the Veteran was treated for hepatitis in service, there was no chronic condition shown during service, there were no residuals noted at the time of his service separation, and no current evidence was submitted showing residuals. The Veteran was notified of the RO's October 2001 decision. In response, the Veteran submitted a Notice of Disagreement (NOD) in December 2001. In August 2002, a statement of the case (SOC) was issued. The Veteran did not subsequently perfect an appeal of that decision, and new and material evidence was not received within one year of the October 2001 rating decision. Thus, the October 2001 decision became final. See 38 U.S.C.A. § 7105(d)(3); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. In August 2011, the Veteran filed a statement expressing his desire to "reopen" his claim of entitlement to service connection for hepatitis. In the October 2011 rating decision on appeal, the RO determined that new and material evidence had been submitted to reopen the claim, but denied the underlying claim for service connection. Despite the determination reached by the RO with respect to its decision to "reopen" the matter, the Board must find that new and material evidence was submitted in order to establish its jurisdiction to review the merits of previously denied claims. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Barnett v. Brown, 83 F. 3d 1380, 1383 (Fed. Cir. 1996). The evidence of record at the time of the October 2001 denial included the Veteran's STRs for his period of service from January 1969 to November 1971. These records showed treatment for and a diagnosis of hepatitis (type unspecified) and included a physical profile record listing hepatitis under the Veteran's defects in November 1970. The Veteran's separation examination in November 1971 was normal, and the report did not mention hepatitis or any residuals relating to hepatitis. Since the October 2001 denial, new evidence received includes: VA treatment records dated from September 2010 to October 2011 and statements from the Veteran. The VA treatment records, in pertinent part, contain an April 2011 "Agent Orange Registry Examination" report, which includes laboratory test findings from April 2010 that were positive for hepatitis B core antibodies and negative for hepatitis C. The Veteran's October 2011 statement includes reports of residual gastrointestinal symptoms and/or conditions he claims are associated with the hepatitis he incurred in service. See Veteran's October 5, 2011, VA Form 21-4138. The Board finds this evidence to be new, as it was not previously of record when the prior decision was made. Also, the Board finds this evidence to be material, as it pertains to an element of the claim that was previously found to be lacking. That is, the previous evidence failed to contain evidence indicating a current hepatitis infection and/or current gastrointestinal symptoms related to the hepatitis infection noted in service. Moreover, the Board finds the evidence to be material in that the positive laboratory findings for hepatitis B core antibodies raises a question as to whether the Veteran has a current hepatitis infection or residuals from a past infection, which, as will be discussed in further detail in the remand portion of this decision, triggers VA's duty to assist the Veteran. See 38 U.S.C.A. § 5103A(d) (VA's duty to assist also includes the duty to provide a medical examination or obtain a medical opinion "when such an examination or opinion is necessary to make a decision on the claim"); Shade, supra (evidence raises a reasonable possibility of substantiating a claim if it would trigger VA's duty to provide an examination). Accordingly, the claim of entitlement to service connection for hepatitis is reopened with the submission of new and material evidence. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). ORDER As new and material evidence has been received, the claim of entitlement to service connection for hepatitis, to include gastrointestinal symptoms, is reopened. To this limited extent only, the appeal is granted. REMAND VA is obliged to provide an examination or obtain a medical opinion in a claim of service connection when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. See 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); 38 C.F.R. § 3.159(c)(4). The evidentiary requirement that the record indicates that the claimed disability or signs and symptoms of disability may be associated with active service is a "low threshold." McLendon, 20 Vet. App. at 83. A veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. See id. In this case, the April 2011 VA "Agent Orange Registry Examination" report includes a positive laboratory finding for hepatitis B core antibodies. The Veteran also reported in his October 5, 2011 statement that as a result of his in service hepatitis infection, he experiences and has continuously experienced various residual gastrointestinal symptoms and/or conditions. Additionally, the Veteran's STRs reflect that he was treated for and diagnosed with hepatitis in October 1970 and November 1970. The Board notes that in February 2013, the RO issued a deferred rating decision, stating "VA medical opinion needed after review of claims file and VA treatment reports," mentioning in particular the Veteran's hospitalization and diagnosis of hepatitis during service, as well as VA's April 2011 report that showed positive laboratory results for hepatitis B core antibodies. The RO explained that "[a] medical opinion is needed to discern if there is a current diagnosis of hepatitis and if so, is there a relationship to the diagnosis shown in service." Ultimately, the RO indicated that the new medical evidence triggered VA's duty to provide an examination. However, it does not appear from the record that any VA medical examination was administered or afforded to the Veteran thereafter. While it is not clear that the new medical evidence constitutes a diagnosis of a current hepatitis infection, the positive laboratory results for hepatitis B core antibodies, at a minimum, suggests that the Veteran may have a current hepatitis infection or residuals of a hepatitis infection related to service, thereby compelling the need to develop medical evidence on the matter. Accordingly, based on the aforementioned evidence, the Board has determined that the "low threshold" necessary to establish entitlement to a VA medical examination has been satisfied. Therefore, the Board finds that the underlying claim of service connection for hepatitis must be remanded for the Veteran to be scheduled for a VA medical examination, to determine whether the Veteran has a current hepatitis infection or suffers from residual symptoms related to the hepatitis for which he was treated in service, to include gastrointestinal symptoms. Moreover, VA's duty to assist claimants in obtaining evidence necessary to substantiate their claims also includes making reasonable efforts to obtain relevant records (including private records), as long as the claimant adequately identifies those records and authorizes VA to obtain them. 38 U.S.C.A. § 5103A(b)(1); Loving v. Nicholson, 19 Vet. App. 96, 101-02 (2005). Pursuant to 38 C.F.R. § 3.159(c)(1), VA's reasonable efforts to obtain private medical records will generally include a follow-up request if no records are received, unless "a response to the initial request indicates that the records sought do not exist or that a follow-up request for the records would be futile." In addition, VA must notify a claimant and his or her representative of the inability to obtain records to allow them an opportunity to procure the records. See 38 C.F.R. § 3.159(e)(1). In the Veteran's October 5, 2011 statement, he reports having received treatment for his gastrointestinal symptoms at Humana Hospital (Humana) in 1985 and at Springhill Memorial Hospital (Springhill) in 2004. The claims file contains no records of the AOJ requesting any treatment records from Springhill. Although the AOJ had previously requested treatment records from Humana in July 2001, the RO's October 2001 rating decision notes that "[a]s of this date, no reply to this request for evidence has been received by our office." A review of the claims file reveals no later response from Humana regarding the request, no notice to the Veteran regarding the inability to obtain the records from Humana, and no follow-up request to Humana for the records. Accordingly, on remand, the AOJ must seek to obtain these potentially relevant records, which will also include making another request to Humana. See Golz v. Shinseki, 590 F.3d 1317, 1323 (2010) ("[I]f there exists a reasonable possibility that the records could help the veteran substantiate his claim for benefits, the duty to assist requires VA to obtain the records."); see also Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992) (holding that when reference is made to pertinent medical records, VA is on notice of their existence and has a duty to assist the veteran to attempt to obtain them). Updated VA treatment records should also be secured Accordingly, the case is REMANDED to the AOJ for the following actions: 1. Obtain all updated VA treatment records. 2. Contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all non-VA health care providers who have treated him for hepatitis or related symptoms since service. Attempt to obtain copies of pertinent treatment records identified by the Veteran that have not been previously secured and associate them with the claims folder. Also, ask the Veteran to specifically complete authorizations for VA to obtain all records of his treatment for hepatitis or related symptoms from Humana Hospital and Springhill Memorial Hospital (see Veteran's October 5, 2011, VA Form 21-4138), and any other sufficiently identified private treatment provider from whom records have not already been obtained. If records are unavailable from any sources, a negative reply must be requested. All responses received should be associated with the claims file. If any records sought are determined to be unavailable, or a negative response is received, the AOJ should make a formal finding of unavailability, and the Veteran must be notified of that fact pursuant to 38 C.F.R. § 3.159(e). 2. Then schedule the Veteran for a VA examination in connection with his claim of entitlement to service connection for hepatitis, to include gastrointestinal symptoms. The claims folder, and a copy of this remand, must be provided to and reviewed by the examiner as part of the examination. All necessary testing should be conducted. The examiner should review the results of any testing and include them in the report. The examiner should then provide an opinion as to whether at any point since August 2011 the Veteran has had an active hepatitis infection and, if so, whether it is at least as likely as not (50 percent or greater probability) that any active hepatitis infection is related to the Veteran's period of active military service, to include the hepatitis for which he was treated in service. In forming this opinion, the examiner is requested to review the laboratory results referred to in the April 2011 "Agent Orange Registry Examination" report and state whether the presence of antibodies of hepatitis B indicates a chronic active infection or reflects a past infection with the virus. Also, the Board notes that in the representative's October 2014 statement, he references the following article regarding the significance of hepatitis B core antibodies: http://www.ncbi.nlm.nih.gov/pmc/articles/PMC81543/. The examiner is also requested to review the above article and indicate whether it supports a finding of a hepatitis infection during the pendency of the Veteran's claim. In addition, the examiner is requested to provide an opinion as to the likelihood that the Veteran suffers from chronic residuals resulting from the hepatitis for which he was treated in service. Specifically, the examiner should consider the Veteran's complaints of gastrointestinal symptoms, to include stomach distress, bloody stool, bloating, and any other symptoms identified by the Veteran during the examination, and opine whether it is at least as likely as not (50 percent or greater probability) that such symptoms are attributable to the Veteran's hepatitis noted in service. A complete rationale for the opinions provided, to include citation to pertinent evidence of record and/or medical authority, as appropriate, should be set forth. If the examiner determines that he/she cannot provide an opinion on the issue at hand without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, the examiner should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted regarding the etiology of any diagnosed disorder or whether additional testing or information could be obtained that would lead to a conclusive opinion. (Ensure that any additional evidentiary development suggested by the examiner is undertaken so that a definitive opinion can be obtained.) 3. After undertaking any other development deemed appropriate, re-adjudicate the issue on appeal. If the benefit sought is not granted, the Veteran should be furnished with a Supplemental Statement of the Case and afforded an opportunity to respond before the record is returned to the Board for further review. Thereafter, the case should be returned to the Board for further appellate review. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is notified. The Veteran 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 case 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 2014). ______________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs