Citation Nr: 18142596 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 16-31 239 DATE: October 17, 2018 ORDER The request to reopen the finally disallowed claim of entitlement to service connection for hepatitis C is granted. The request to reopen the finally disallowed claim of entitlement to service connection for depression is granted. REMANDED The issue of entitlement to service connection for hepatitis C is remanded. The issue of entitlement to service connection for an acquired psychiatric disorder, claimed as depression, to include as secondary to hepatitis C, is remanded. FINDINGS OF FACT 1. In a January 2010 decision, the Board denied entitlement to service connection for hepatitis C and depression. 2. Additional evidence received since the Board’s January 2010 decision is new to the record and relates to unestablished facts necessary to substantiate the merits of the claim of entitlement to service connection for hepatitis C and depression and raises a reasonable possibility of substantiating the claim of entitlement to service connection for hepatitis C and depression. CONCLUSIONS OF LAW 1. The January 2010 Board decision is final as to the claim of entitlement to service connection for hepatitis C. 38 U.S.C. § 7104 (2012); 38 C.F.R. §§ 3.156, 20.1100 (2017). 2. New and material evidence has been presented to reopen the claim of entitlement to service connection for hepatitis C. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The January 2010 Board decision is final as to the claim of entitlement to service connection for depression. 38 U.S.C. § 7104 (2012); 38 C.F.R. §§ 3.156, 20.1100 (2017). 4. New and material evidence has been presented to reopen the claim of entitlement to service connection for depression. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1983 to April 1985. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied entitlement to service connection for hepatitis C and depression. The Veteran timely perfected an appeal to the rating decision. See August 2015 Notice of Disagreement; June 2016 Statement of the Case; June 2016 VA Form 9. The issues of entitlement to service connection for hepatitis C and depression were previously denied in a January 2010 Board decision. The Board acknowledges that the RO reopened and denied the Veteran’s claim on the merits. Despite the determination reached by the RO, the Board must make its own determination as to whether new and material evidence has been received to reopen the Veteran’s claim. See Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996). The issues have been recharacterized accordingly. The issue of entitlement to service connection for an acquired psychiatric disorder has been recharacterized as reflected above given the nature of the Veteran’s claim and the medical evidence of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a claim pursued by a claimant includes any diagnosis that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record). New and Material Evidence In general, unappealed Board decisions are final. See 38 U.S.C. § 7104(b); 38 C.F.R. § 20.1103. If a claim of entitlement to service connection 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; Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). 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). VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). The credibility of the evidence is presumed for the purpose of reopening, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, 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 ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. With respect to the issue of materiality, the newly presented evidence need not be probative of all the elements required to award the service connection claim. In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), 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 Veteran’s injury or disability, even where it would not be enough to convince the Board to grant a claim. The Veteran initially filed a claim of entitlement to service connection for hepatitis C and depression in January 2006. In a June 2006 rating decision, the RO denied the Veteran’s claim. The Veteran appealed the June 2006 rating decision to the Board. In a January 2010 decision, the Board denied entitlement to service connection for hepatitis C and depression. The January 2010 Board decision, which was not appealed to the Court or subjected to a Motion for Reconsideration, is final. 38 U.S.C. § 7104 (b); 38 C.F.R. § 20.1100. Relevant evidence of record at the time of the Board’s January 2010 decision included the Veteran’s service treatment records and VA and private treatment records. Based on this evidence, the Board concluded that the Veteran’s hepatitis C was not related to service and that the Veteran did not have a current disability of depression. In April 2015, the Veteran requested that his claim of entitlement to service connection for hepatitis C and depression be reopened. Relevant additional evidence received since the Board’s December 2008 decision includes additional VA treatment records showing treatment for hepatitis C and depression, a medical statement indicating that the Veteran’s hepatitis C may have caused depression, and a private opinion that the Veteran’s hepatitis C may be related to service. This evidence was not previously on file at the time of the Board’s January 2010 decision; thus, it is new. Furthermore, this evidence is material because it bears directly on the missing elements of the Veteran’s claim. Specifically, the hepatitis C claim was denied because there was no evidence linking hepatitis C to service and the depression claim was denied because there was no evidence that the Veteran currently had depression. The newly received evidence consists of treatment records showing a diagnosis of depression and a private opinion that the Veteran’s hepatitis C may be related to service. Thus, the new evidence relates to unestablished facts necessary to substantiate a claim of entitlement to service connection for hepatitis C and depression, and it raises a reasonable possibility of substantiating the claim, particularly when considering the low threshold for reopening a claim set forth in Shade. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Accordingly, the claim of entitlement to service connection for hepatitis C and depression is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). The underlying claim is addressed further in the Remand section below. REASONS FOR REMAND Outstanding Records The record reflects that there may be relevant VA treatment records that have not been associated with the claims file. In this regard, the RO obtained VA treatment records dated from June 2002 to March 2015. However, in his initial claim, the Veteran reported VA treatment for hepatitis C beginning in 1998. Upon remand, the AOJ should obtain all outstanding VA treatment records documenting treatment for the issues on appeal, including records dated from prior to June 2002, as well as any current VA treatment records dated from March 2015 to the present. 38 C.F.R. § 3.159 (c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992) (observing that any VA treatment records that have been generated up to and including the date of the Board’s decision, whether or not filed in the appellant’s claims folder, are in the constructive possession of the Board and must be considered). The record also indicates that there may be Social Security Administration (SSA) records not associated with the claims file. In this regard, an October 2012 VA treatment record shows that the Veteran reported being in receipt of SSA disability benefits. Additionally, previous VA treatment records show that the Veteran reported being denied SSA disability benefits. There is no indication in the claims file that SSA records have been requested or obtained. When VA has actual notice of the existence of relevant SSA records, the duty to assist includes requesting those records from the SSA. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010) (finding that VA must seek to obtain relevant records under 38 U.S.C. § 5103A when “there exists a reasonable possibility that the records could help the veteran substantiate his claim for benefits”). This duty extends to obtaining a copy of the SSA decision awarding or denying benefits. Murincsak v. Derwinski, 2 Vet. App. 363, 371 (1992); Baker v. West, 11 Vet. App. 163, 169 (1998); Hayes v. Brown, 9 Vet. App. 67, 73-74 (1996). Because SSA records are potentially relevant to the Board’s determination in this case, VA must attempt to obtain and consider those records. Therefore, on remand, the Veteran’s complete SSA records should be obtained. Service Connection The Veteran contends that hepatitis C was incurred in service, to include as due to immunizations or as due to multiple sexual partners in Germany. The evidence of record substantiates a current diagnosis of hepatitis C. Moreover, the Veteran competently reported that he was given inoculations in basic training with the same needles as other soldiers. Additionally, the Veteran’s immunization records confirm that he was administered immunizations during basic training. In a July 2016 letter, a private physician, Dr. T.B., opined that “it is plausible that [the Veteran] contracted Hep C from the immunizations of the airgun injections or sexual contacts while in service.” The Board finds that this opinion is insufficient, standing alone, to warrant a grant of service connection as it is conclusory and without explanation of rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (“A mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to the doctor’s opinion.”). However, as there is a current diagnosis, in-service incidents, and an indication that the current disability may be related to service, the Veteran should be scheduled for a VA examination to determine the nature and etiology of his hepatitis C. See McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006). With regard to the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder, the claim is based on a theory of service connection secondary to hepatitic C. As the claim is inextricably intertwined with the primary disability claim, it will also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). The matters are REMANDED for the following action: 1. Obtain and associate with the Veteran’s claims file all outstanding VA treatment records dated from January 1998 to June 2002 and from March 2015 to the present, documenting treatment for the issues on appeal. If any of the records requested remain unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159 (e). Additionally, send the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization in order to obtain any additional private treatment records pertinent to the claim on appeal that are not currently of record, to specifically include records from Dr. T.B. All records obtained pursuant to this request must be included in the Veteran’s claims file. If the search for such records has negative results, documentation to that effect should be included in the claims file in accordance with 38 C.F.R. § 3.159 (c)(1). 2. Request from SSA complete copies of any determination on a claim for disability benefits from that agency, together with the medical records that served as the basis for any such determination. All attempts to fulfill this development should be documented in the claims file. If the search for these records is negative, that should be documented in the claims file, and the Veteran must be informed of this in writing in accordance with 38 C.F.R. § 3.159 (e). 3. After all available records have been associated with the claims file, afford the Veteran an appropriate VA examination to determine the nature, onset, and likely etiology of hepatitis C. The claims folder should be made available and reviewed by the examiner. All indicated studies should be performed. After examining the Veteran and reviewing the claims file, the examiner should offer an opinion as to whether it is as least as likely as not (i.e. 50 percent or greater probability) that the Veteran’s hepatitis C had its onset directly during service or is otherwise causally related to any event or circumstance of the Veteran’s active service. A history of all the Veteran’s potential risk factors for hepatitis C infection should be detailed in full. The examiner must list and discuss all documented and reported pre-service, in-service, and post-service risk factors. In so opining, the examiner should specifically address the Veteran’s theory that the hepatitis C resulted from air-gun inoculations, other immunizations, and/or multiple sex partners. The examiner should also discuss the Veteran’s contentions that he first had symptoms of hepatitis C in service. The examiner’s report must reflect consideration of the Veteran’s entire documented medical history and assertions and all lay evidence. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. (Continued on next page) 4. Following the completion of the foregoing, and any other development deemed necessary, the AOJ should readjudicate the Veteran’s claim. If the claim is denied, supply the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Kipper, Associate Counsel