Citation Nr: 1805276	
Decision Date: 01/26/18    Archive Date: 02/07/18

DOCKET NO.  14-14 218	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1. Whether new and material evidence has been received to reopen a previously denied claim for service connection for depression. 

2. Entitlement to service connection for depression. 

3. Entitlement to service connection for hepatitis C. 


REPRESENTATION

Veteran represented by:	James G. Fausone, attorney


ATTORNEY FOR THE BOARD

M. Showalter, Associate Counsel




INTRODUCTION

The appellant is a Veteran who served on active duty from May 1977 to January 1987.  

These matters are before the Board of Veterans' Appeals (Board) on appeal from November 2011 and May 2012 decisions of the Roanoke, Virginia Department of Veterans Affairs (VA) Regional Office (RO). 

The issue of service connection for depression is being REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.


FINDINGS OF FACT

1. An unappealed December 2002 rating decision denied service connection for depression; evidence received since that decision was not of record at that time; relates to an unestablished fact necessary to substantiate the underlying claim; and raises a reasonable possibility of substantiating that claim.

2. The Veteran does not have a current diagnosis of hepatitis C. 


CONCLUSIONS OF LAW

1. New and material evidence has been received to reopen the claim for service connection for depression.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).

2.  The criteria for service connection for hepatitis C have not been met.  38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

For the claim to reopen the claim of service connection for depression, inasmuch as the determination below reopens the claim, there is no reason to belabor the impact of VA's duties to notify and assist on the claim to reopen, since any error in notice content or timing or in the duty to assist on that aspect of the claim is harmless.

Neither the Veteran nor his attorney has raised any issues with the duty to notify or duty to assist on the claim seeking service connection for hepatitis C.  See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).  

New and Material Evidence - Depression

In general, rating decisions that are not appealed within one year are final.  See 38 U.S.C. § 7105; 38 C.F.R. § 20.200 (2017).  But if new and material evidence is presented or obtained with respect to a claim which has been disallowed, the Secretary shall reopen and review the former disposition of the claim. 38 U.S.C. § 5108.  

It is the jurisdiction of the Board to adjudicate whether or not new and material evidence has been received.  See Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996).  "New" evidence means existing evidence not previously submitted to agency decision makers.  See 38 C.F.R. § 3.156.  "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.  Id.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last 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 evidence is new and material, the "credibility of the evidence is to be presumed."  See Justus v. Principi, 3 Vet. App. 510, 513 (1992).  The United States Court of Appeals for Veterans Claims (Court) has held that the requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold.  Specifically, the Court viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening."  See Shade v. Shinseki, 24 Vet. App. 110, 121 (2010).  However, lay assertions of medical causation cannot serve as the predicate to reopen a claim under § 5108.  See Moray v. Brown, 5 Vet. App. 211, 214 (1993).

In a December 2002 rating decision, the RO denied the Veteran's claim for service connection for depression because there was no evidence that the condition was incurred in or caused by events during service.  The Veteran did not appeal the December 2002 decision and did not submit new and material evidence within one year of that rating decision.  Therefore, the December 2002 rating decision is final based on the evidence then of record.  38 U.S.C. § 7105; 38 C.F.R. § 3.156.

The Veteran applied again for service connection for depression in June 2010.  Since that time, the Veteran has received compensation for a service-connected back disability and has indicated that his depression is secondary to his back disability.  As this evidence was not previously of record and relates to the question of whether or not his depression was incurred in or caused by events in service, or secondary to a service-connected disability, new and material evidence has been received and the claim is reopened.  38 C.F.R. § 3.156(a).  

Service Connection - Hepatitis C

Initially, the Board notes that it has reviewed all of the evidence in the record, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  The Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim being decided.

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a).  Service connection may be granted for a disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).  To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 

The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value.  Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a).  

Competent (that is, qualified) medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may include statements contained in medical treatises, scientific articles, or research reports.  38 C.F.R. § 3.159(a)(1).

Competent (that is, qualified) lay evidence means evidence not requiring that the person providing it have specialized education, training, or experience.  Lay statements are qualified to establish that an event or circumstance occurred if the statements are provided by a person who has personal knowledge of matters that can be observed and described by a non-expert.  38 C.F.R. § 3.159(a)(2).  This may include some medical matters, such as describing observable symptoms or reporting that a medical provider gave them a diagnosis in the past.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Lay evidence may be qualified to establish that an event or injury occurred during service, or that a chronic disability began during service.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  

The Board will grant the Veteran's claim if the evidence supports the claim or is in relative equipoise.  38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  

Turning to the facts of this case, STRs show that the Veteran was diagnosed with "hepatitis" in 1979 while he was in service.  Notes from September 1979 state "viral hepatitis - resolved."  

Treatment records show that the Veteran was incarcerated for more than ten years shortly after his separation from service. 

Private treatment notes from July 2005 show that the Veteran reported a history of hepatitis C infection.  Objective testing done at that time showed that the Veteran's liver function tests were normal and a hepatitis panel was "negative."  The physician noted that the Veteran's "viral load at that time was less than 50, which demonstrates complete absence of the hepatitis C viral load."  Based on these tests, the physician stated that any history of hepatitis C infection was "remote." 

VA treatment notes from April 2010 show that a CT scan of the abdomen revealed no significant abnormality of the liver.  In a VA examination for hepatitis C dated in January 2012, the examiner stated that the Veteran did not have a liver condition, finding that there were no symptoms attributable to any infectious or chronic liver disease.  Laboratory studies conducted during that month showed that hepatitis C genotype and hepatitis C viral titers were non-reactive.   

Based on these facts, there is no evidence that the Veteran currently has a disability or disease relating to hepatitis C.  Review of VA examinations and treatment records have provided no evidence of a diagnosis for any chronic liver disease, including hepatitis C.  Conclusively, his July 2005 treatment records and January 2012 VA examination found no objective evidence for a hepatitis C infection.  The Veteran has reported a history of hepatitis C, but he does not have the necessary medical knowledge to state that he has a current diagnosis of the disease.  Jandreau, 492 F.3d at 1372.  Essentially there is no evidence in the record that would allow the Board to find that the Veteran has had hepatitis C during the appeal period.  Without a current disability, the Veteran's service connection claim for hepatitis C must be denied.  See 38 C.F.R. §§ 3.102, 3.303; see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (existence of a current disability is the cornerstone of a claim for VA disability compensation).


ORDER

New and material evidence has been received that is sufficient to reopen the claim for service connection for depression; the claim is reopened. 

Service connection for hepatitis C is denied. 


REMAND

Although the Board sincerely regrets additional delay, a remand is necessary to afford the Veteran due process of law and to ensure that there is a complete record upon which to decide the Veteran's appeal, so as that he is afforded every possible consideration.  38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017).

The Veteran contends that his depression results from his service or from his service-connected degenerative joint disease of the lumbar spine.  Regarding a relationship to service, service treatment records reflect that the Veteran was in counseling for abuse of alcohol and cannabis.  He has also alleged that he has received continuous psychiatric treatment since service and has had continuous symptoms since he was discharged from service.  He has contended that his symptoms of depression have worsened because of his service-connected back disability.  

As the evidence indicates an association between the Veteran's service and/or his service-connected back disability and depression a medical examination is necessary to determine the etiology of depression and any other diagnosed psychiatric disorder. 

Accordingly, the case is REMANDED for the following actions:

1.  Obtain and associate with the claims file VA treatment records from November 2017 to the present.

2.  Arrange for an appropriate examination to ascertain the nature and likely cause of the Veteran's depression.  The examiner should elicit from the Veteran a detailed history regarding the onset and progression of relevant symptoms.  Pathology, symptoms (frequency and severity), and any associated impairment of function should be described in detail.  The Veteran's entire record, including this remand, must be reviewed by the examiner in conjunction with the examination, and all indicated tests and studies must be completed.  Based on this review of the record and the examination and interview of the Veteran, the examiner should provide opinions that respond to the following:  

a) Please identify the likely cause for the Veteran's depression and any other diagnosed psychiatric disorder.  Specifically, is it at least as likely as not (a 50% or better probability) that such disability was incurred in, related to, or caused by the any incident during the Veteran's military service, to include any counseling received therein?  

b) If the examiner determines that the Veteran's depression or any other psychiatric disorder was not caused by events in service, the examiner is asked to specify whether it is at least as likely as not (a 50% or better probability) that the Veteran's depression or any other psychiatric disorder is caused or aggravated (i.e., any increase in severity of the depression beyond its natural progression) by his service-connected back disability or any other service-connected condition.

The examiner should provide a complete rationale in support of any opinions offered.  If the examiner is unable to provide any requested opinion, he or she must explain why such an opinion would be speculative. 

3.  After undertaking the above actions and any other necessary development, review the record and readjudicate the claim.  If the claim remains denied, issue an appropriate supplemental statement of the case, afford the Veteran and his attorney opportunity to respond, and return the record to the Board. 

The Veteran has the right to submit additional evidence and argument on the remanded matter.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  As a remand, this matter must be handled expeditiously.  38 U.S.C. §§ 5109B, 7112 (2012).



____________________________________________
M. SORISIO
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs