Citation Nr: 1805503	
Decision Date: 01/29/18    Archive Date: 02/07/18

DOCKET NO.  11-20 218	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1. Whether new and material evidence has been received to reopen a claim of service connection for hepatitis C.

2. Entitlement to service connection for thyroid cancer.

3. Entitlement to service connection for a lung disability.

4. Entitlement to service connection for a right wrist disability.

5. Entitlement to service connection for dizzy spells.

6. Entitlement to an initial rating in excess of 10 percent for an appendectomy scar.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Eric Struening, Associate Counsel


INTRODUCTION

The Veteran served on active duty from July 1978 to July 1981.  He also had additional service with the Texas National Guard from July 1981 to May 1986.

These matters come before the Board of Veterans' Appeals (Board) on appeal from April 2010 and March 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.  

An interim January 2017 rating decision increased the initial rating for an appendectomy scar to 10 percent, effective August 19, 2010. 

In October 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge.  A transcript of that hearing is of record.

The issue of entitlement to service connection for thyroid cancer is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. On the record at the October 2017 videoconference hearing, the Veteran withdrew his appeal in the matters of service connection for a lung disability, a right wrist disability, dizzy spells, and an increased initial rating for an appendectomy scar. 

2. An August 2008 Board decision denied service connection for hepatitis C.

3. Evidence added to the record since the August 2008 Board decision does not contribute to a more complete picture of the Veteran's claim for hepatitis C and does not create a reasonable possibility of an allowance of the claim. 


CONCLUSIONS OF LAW

1. The criteria for withdrawal of the appeal of the issues of service connection for a lung disability, a right wrist disability, dizzy spells, and an increased initial rating for an appendectomy scar have been met.  38 U.S.C. § 7105 (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 

2. The August 2008 Board decision that denied service connection for hepatitis C is final.  38 U.S.C § 7104(b) (West 2012); 38 C.F.R. § 20.1100 (2017).

3. New and material evidence has not been received since the August 2008 Board decision to reopen the claim for service connection for hepatitis C.  38 U.S.C. §§ 5107, 5108 (West 2012); 38 C.F.R. § 3.156.


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Withdrawal

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C. § 7105.  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204.  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204. 

At the October 2017 videoconference hearing, the Veteran indicated his desire to withdraw his appeal as to the claims of entitlement to service connection for a lung disability, a right wrist disability, dizzy spells, and an increased initial rating for an appendectomy scar.  The Board acknowledges, except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing.  38 C.F.R. § 20.204 (b)(1).  Here, the withdrawal was made on the record at a hearing before the undersigned.  In addition, the testimony was later reduced to writing, in the form of a transcript, and this transcript was associated with the claims file.  Hence, the Board finds that the criteria for a withdrawal of an appeal has been met and there remain no allegations of errors of fact or law for appellate consideration with regard to these claims.  Accordingly, the Board does not have jurisdiction to review these issues.  The Board finds, therefore, that the Veteran's appeal as to these issues is dismissed but only to that extent.

Service Connection for Hepatitis C

Board decisions are final on the date stamped on the face of the decision.  38 C.F.R § 20.1100.  If a claim has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108.

New evidence means existing evidence not previously submitted to agency decision makers.  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).

The determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material.  See Shade v. Shinseki, 24 Vet. App. 110 (2010).

In determining whether evidence is new and material, the credibility of the new evidence is to be presumed.  Justus v. Principi, 3 Vet. App. 510 (1992). 

An August 2008 Board decision denied service connection for hepatitis C.  The Board decision explained that while the Veteran had hepatitis C, service connection was denied because his hepatitis C "has not been dissociated from his illegal intravenous drug use after service and has not otherwise been attributed to be at least as likely due to" verified in-service exposure.  The Board decision became final on August 14, 2008, the date it was stamped.  38 C.F.R § 20.1100 (2017).

Evidence of record at that time included the Veteran's available service treatment records (STRs), Social Security Administration (SSA) medical records, post-service VA treatments, lay statements, and a March 2008 VA examination.  In a July 2004 statement, the Veteran reported that he had a blood transfusion during his appendectomy and possibly contracted hepatitis C due to that.

Evidence received since the August 2008 Board decision includes VA treatment records, the Veteran's available National Guard STR's, and testimony at an October 2017 videoconference hearing before the undersigned.  The Veteran testified that during service he had surgery to repair a ruptured appendix, and he was under the impression that he had a blood transfusion at the time.  He testified that that blood transfusion or other shots he received could have been the cause of his currently diagnosed hepatitis C. 

The Board finds that the evidence submitted since the August 2008 final Board decision is duplicative of previously considered evidence and none of the evidence is material.  The Veteran's testified at the October 2017 videoconference hearing that he had a blood transfusion during his appendectomy, but that testimony is duplicative of his July 2004 statement.  That statement, and theory of entitlement, was known and considered at the time of the final Board decision, and service connection was denied because there was no evidence of a nexus between his hepatitis C and his active duty service.  His testimony, therefore, does not relate to an unestablished fact and does not raise a reasonable possibility of substantiating the claim.  See Shade, 24 Vet. App. at 110.  Thus, the Board finds that new and material evidence has not been received, the claim is not reopened, and the Veteran's appeal to this extent is denied.


ORDER

The appeal of the issue of entitlement to service connection for a lung disability is dismissed. 

The appeal of the issue of entitlement to service connection for a right wrist disability is dismissed.

The appeal of the issue of entitlement to service connection for dizzy spells is dismissed.

The appeal of the issue of entitlement to an initial rating in excess of 10 percent for an appendectomy scar is dismissed. 

The appeal to reopen the claim of service connection for hepatitis C is denied.


REMAND

Regarding the Veteran's claim for service connection for thyroid cancer, the Veteran testified that his currently diagnosed thyroid cancer may be the result of exposure to carbon based chemicals and cleaning products used as a weapons repairman during service.  The Veteran's military personnel records indicate his principal duty was as a supply specialist.  Given the Veteran's assertions of exposure and current diagnosis of thyroid cancer, the Board finds that this evidence requires a VA examination to obtain a nexus opinion.  McLendon v. Nicholson, 20 Vet. App. 70 (2006).  

Additionally, updated treatment records should be obtained.  See 38 C.F.R. § 3.159. See also Bell v. Derwinski, 2 Vet. App. 611 (1992).

Accordingly, the case is REMANDED for the following action:

1. Obtain the names and addresses of all medical care providers who treated the Veteran for thyroid cancer since May 2017. After securing the necessary release, take all appropriate action to obtain these records, including any VA treatment records.

2. After the completion of the above, schedule the Veteran for an appropriate examination to determine the current nature and likely etiology of his thyroid cancer.  The entire record, including this remand, must be provided to the examiner for review.  Based on the record, the examiner should provide an opinion to the following:

Is it at least as likely as not that the Veteran's thyroid cancer is related to his service?  The examiner should consider and discuss as necessary the Veteran's lay statements of exposure to carbon-based chemicals and cleaning products used to clean weapons during service.

The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate.  If an opinion cannot be provided, the examiner should indicate why.

3. The AOJ should then review the record and re-adjudicate the claim. If the benefit remains denied, the AOJ should issue an appropriate supplemental statement of the case and afford the Veteran and his representative opportunity to respond.  The case should then be returned to the Board, if in order, for further review.

The appellant 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 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. §§ 5109B, 7112 (West 2012).




______________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs