Citation Nr: 1804375 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 13-01 695 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to an evaluation in excess of 40 percent for dorsolumbar myositis. 2. Entitlement to an evaluation in excess of 10 percent for left knee strain. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hepatitis C. 4. Entitlement to service connection for hepatitis C. 5. Entitlement to service connection for cirrhosis of the liver, claimed as secondary to hepatitis C. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Anthony Flamini, Counsel INTRODUCTION The Veteran served on active duty from January 1978 to July 1989. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In March 2016, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. These issues were previously before the Board in August 2016. The Board notes that its August 2016 remand also addressed the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). However, in a June 2017 rating decision, the RO granted entitlement to a TDIU, effective June 16, 2011. The Veteran has not yet expressed any disagreement with this decision, and the Veteran's representative did not revisit the issue in his November 2017 Appellant's Brief. As such, this issue is not currently before the Board. The issues of entitlement to higher evaluations for dorsolumbar myositis and left knee strain, as well as entitlement to service connection for hepatitis C and cirrhosis of the liver, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A July 1996 rating decision denied entitlement to service connection for hepatitis C; the Veteran did not appeal the July 1996 rating decision or submit new and material evidence within the one-year appeal period of that decision. 2. An October 2002 rating decision denied reopening the claim of entitlement to service connection for hepatitis C; the Veteran did not appeal the October 2002 rating decision or submit new and material evidence within the one-year appeal period of that decision. 3. Evidence received since the October 2002 rating decision is new and material and sufficient to reopen the claim of entitlement to service connection for hepatitis C. CONCLUSIONS OF LAW 1. The July 1996 rating decision is final with respect to the Veteran's claim of entitlement to service connection for hepatitis C. 38 U.S.C.A. § 7105 (c) (West 1994), 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1995); currently, 38 U.S.C.A. § 7105 (c) (West 2014), 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 2. The October 2002 rating decision is final with respect to the Veteran's claim of entitlement to service connection for hepatitis C. 38 U.S.C.A. § 7105 (c) (West 2002), 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2002); currently, 38 U.S.C.A. § 7105 (c) (West 2014), 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 3. Evidence received to reopen the claim of entitlement to service connection for hepatitis C is new and material, and the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), 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 (West 2014); 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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In this decision, the Board grants the Veteran's petition to reopen his claim for hepatitis C, which constitutes a complete grant of the only claim decided herein. Therefore, no discussion of VA's duty to notify or assist is necessary. The Veteran contends that he has submitted new and material evidence sufficient to reopen his claim of entitlement to service connection for hepatitis C. Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2017). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 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) (2017). 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, 512-13 (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 Court has also held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Here, the RO denied entitlement to service connection for hepatitis C in a July 1996 rating decision, and also notified the Veteran of its decision that same month. The Veteran did not appeal the July 1996 rating decision, and no evidence was received within the one-year appeal period that would constitute new and material evidence. Thus, that decision is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). The Veteran filed a claim to reopen the claim of service connection for hepatitis C in September 2001. In an October 2002 rating decision, the RO denied reopening the Veteran's claim, finding that he had not submitted new and material evidence. Notice of that decision was provided to the Veteran in November 2002. The Veteran did not appeal the October 2002 rating decision and no evidence was received within the one-year appeal period that would constitute new and material evidence; accordingly, the October 2002 rating decision is also final. Id. The July 1996 rating decision denied service connection for hepatitis C on the basis that the service treatment records did not show a diagnosis of hepatitis C during service and because there was no evidence of a nexus between the Veteran's hepatitis C and his active duty service. The October 2002 rating decision declined to reopen the claim, finding that the new evidence, which consisted of VA treatment records, did not show a diagnosis of hepatitis C during service and did not show a nexus between the Veteran's hepatitis C and his active duty service. In August 2007, the Veteran filed the current claim to reopen the issue of entitlement to service connection for hepatitis C. Although the RO determined that new and material evidence was not presented to reopen the claim of entitlement to service connection for hepatitis C, the Board does not have jurisdiction to consider a claim which it previously adjudicated unless new and material evidence is presented, and before the Board may reopen such a claim, it must so find. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Thus, the Board must first decide whether evidence has been received that is both new and material to reopen the claim. Consequently, the Board will adjudicate the question of whether new and material evidence has been received, furnishing a complete explanation as to its reasons and bases for such a decision. After thorough consideration of the evidence in the claims file, the Board concludes that the evidence received since the October 2002 rating decision is new and material and sufficient to reopen the Veteran's claim of entitlement to service connection for hepatitis C. In particular, the Veteran provided competent testimony before the Board which reflects that he regularly donated blood while in service and experienced symptoms commonly associated with hepatitis C (such as chronic fatigue, loss of appetite, nausea, abdominal pain, dark urine, discolored bowel movements, joint pain, and jaundice) while in service. This evidence is new because it was not of record at the time of the October 2002 rating decision. It is material because it provides lay evidence of in-service symptoms which could be associated with in-service hepatitis C. See Justus, 3 Vet. App. 512-13 (the credibility of the evidence is presumed). Accordingly, the Veteran's claim for entitlement to service connection for hepatitis C is reopened. ORDER New and material evidence having been submitted, the Veteran's claim of entitlement to service connection for hepatitis C is reopened. REMAND The Veteran seeks entitlement to higher evaluations for dorsolumbar myositis and left knee strain, as well as entitlement to service connection for hepatitis C and cirrhosis of the liver. Unfortunately, the Board finds that additional development must be undertaken before these claims can be adjudicated on the merits. With respect to the issue of entitlement to service connection for hepatitis C, as discussed above, during his March 2016 Board videoconference hearing, the Veteran testified that he regularly donated blood while in service and experienced symptoms commonly associated with hepatitis C (such as chronic fatigue, loss of appetite, nausea, abdominal pain, dark urine, discolored bowel movements, joint pain, and jaundice) while in service. Indeed, a review of the Veteran's service treatment records reveals several abnormal urinalyses in which the Veteran's white blood cell count was not within normal limits, at which time he was diagnosed as having nongonococcal urethritis. However, urinalyses also described his urine as orange colored in April 1988, rather than the normal straw, yellow, or amber colors indicated on the urinalysis forms. In addition, the Veteran also frequently sought treatment for stomach cramps and/or an upset stomach while in service (to include instances in October 1979, May 1980, and October 1984), which were usually diagnosed as gastritis. To date, no VA etiological opinion has been obtained with respect to this specific claim. Although a May 1996 VA "alimentary appendages" examination provided a diagnosis of hepatitis C, the examiner did not opine as to the etiology of the disorder. The record establishes that the Veteran has been diagnosed as having hepatitis C, has offered evidence as to risk factors for his infection (including donating blood during service), and has described symptoms commonly associated with hepatitis C during service. The Veteran is competent to speak to these in-service risk factors and symptoms. Therefore, the issue is remanded so that an opinion as to the etiology of the Veteran's hepatitis C may be obtained. McLendon v. Nicholson, 20 Vet. App. 79, 84 (2006). With respect to the claim of entitlement to service connection for cirrhosis of the liver, the Veteran has asserted that this disability developed secondary to his diagnosed hepatitis C. Consequently, the Board finds that the liver cirrhosis claim is inextricably intertwined with the issue of entitlement to service connection for hepatitis C, being remanded herein. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision in the matter). As such, the Board finds that remanding this issue is required in order for it to be contemporaneously adjudicated with the issue of entitlement to service connection for hepatitis C. Finally, with respect to the claims of entitlement to higher evaluations for dorsolumbar myositis and left knee strain, the Board notes that the Veteran was last provided with VA examinations relevant to these disabilities in 2012, approximately six years ago. The Veteran's testimony at his March 2016 Board videoconference hearing indicated that these disabilities had worsened in the six years since the last VA examinations. The Veteran is entitled to a new VA examination so as to ascertain the current severity of the disabilities at issue. 38 C.F.R. § 3.327; Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994) (finding that a 23-month-old VA examination was too remote in time where evidence of worsening symptoms was submitted in the interim). Therefore, remand for contemporaneous VA examinations is necessary prior to adjudication of these claims. Accordingly, the case is REMANDED for the following action: 1. Request a VA opinion as to the etiology of the Veteran's hepatitis C. The claims file should be made available for review, and the examination report should reflect that such review occurred. Upon a review of the record, the examiner should identify all potential risk factors for hepatitis infection documented in the claims file. The examiner is then asked to opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's hepatitis infection began in service, was caused by service, or is otherwise related to service, to include whether it is at least as likely as not (50 percent probability or greater) that the Veteran's testimony with respect to experiencing symptoms commonly associated with hepatitis C in service, as well as the service treatment records which documented discolored urine and stomach cramps, were manifestations of undiagnosed hepatitis C. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. A complete rationale for the opinions offered must be provided. 2. Provide the Veteran with a new VA spine examination to determine the nature and severity of his service-connected dorsolumbar myositis. The claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. Any medically indicated special tests should be accomplished. All manifestations and associated functional impairment related to the Veteran's service-connected dorsolumbar myositis must be documented. Appropriate range-of-motion testing should be accomplished, to include the point at which pain begins, on active and passive motion, on weight bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so.. The examiner must opine (in degrees if possible) to what extent, if any, the Veteran's initial motion is affected by pain, weakness, fatigue, lack of endurance, incoordination, or other symptoms resulting in additional functional loss/impairment. The examiner must also opine (in degrees if possible) to what degree, if any, the Veteran's range of motion is limited by pain, fatigue, weakness, or incoordination, during flare-ups or with repetitive use. The examiner should also report the total duration of any incapacitating episodes during the past 12 months. 3. Provide the Veteran with a new VA knee examination to determine the nature and severity of his service-connected left knee strain. The claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. Any medically indicated special tests should be accomplished. All manifestations and functional impairment related to the Veteran's service-connected left knee strain must be documented. The examiner is asked to indicate the point during range-of-motion testing that motion is limited by pain. The examiner should test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing for both the left and right knee. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe in detail the presence or absence and the extent of any functional loss due to weakened movement, excess fatigability, incoordination, or pain on use, and should state whether any pain claimed by the Veteran is supported by adequate pathology, e.g., muscle spasm, and is evidenced by his visible behavior, e.g., facial expression or wincing, on pressure or manipulation. The examiner should express an opinion as to whether pain or other manifestations occurring during flare-ups or with repeated use could significantly limit functional ability of the affected part. The examiner should portray the degree of any additional range of motion loss due to pain on use or during flare-ups. 4. After completing the above, and conducting any additional development deemed necessary, readjudicate the claims on appeal in light of all additional evidence received. If any benefit sought on appeal is not granted, then the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. 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 2014). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs