Citation Nr: 1806711 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 14-13 809 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hepatitis C; and entitlement to service connection for hepatitis C. 2. Entitlement to service connection for diabetes mellitus (DMII), to include as secondary to hepatitis C. 3. Entitlement to service connection for a left shoulder disability. 4. Entitlement to service connection for a right hip disability, to include as secondary to his service-connected degenerative arthritis of the right knee. 5. Entitlement to service connection for a kidney disability, to include as secondary to hepatitis C. 6. Entitlement to an effective date earlier than June 29, 2010 for the award of a 10 percent evaluation for service connection for a right knee disability. REPRESENTATION Veteran represented by: Vietnam Era Veterans Association WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD I. Warren, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1971 to December 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March and June 2011, September 2013 and May 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In August 2016, the Board remanded the appeal to the AOJ to afford the Veteran a hearing, as he requested. In March 2017, the Veteran was afforded a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board recognizes that the Veteran attempted to raise the issue of entitlement to service connection for a left knee disability, to include as secondary to his service-connected right knee disability, at the March 2017 hearing. The Veteran is advised that a claim for benefits must be submitted on the application form prescribed by the Secretary. 38 C.F.R. §§ 3.1(p), 3.155, 3.160 (2017). The issues of entitlement to service connection for hepatitis C, a left shoulder disability, a right hip disability, a kidney disability, and entitlement to an earlier effective date for the award of a 10 percent evaluation for a right knee disability are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. By a July 2006 rating decision, the RO denied the Veteran's claim for service connection for hepatitis C; he was advised of the RO's decision, and of his appellate rights. 2. The Veteran did not initiate an appeal of the RO's decision within one year; nor was new and material evidence received within a year. 3. Additional evidence received since the RO's July 2006 decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection for hepatitis C, and raises a reasonable possibility of substantiating the claim. 4. A diagnosis of DMII is not demonstrated by the evidence of record. CONCLUSIONS OF LAW 1. The RO's July 2006 rating decision to deny service connection for hepatitis C is final. 38 U.S.C. § 7105 (West 2012); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2017). 2. New and material evidence has been received to reopen the Veteran's claim for service connection for hepatitis C. 38 U.S.C. §§ 1131, 5108 (West 2012); 38 C.F.R. §§ 3.303, 3.156 (2017). 3. The criteria for the establishment of service connection for DMII have not been met. 38 U.S.C. §§ 1110, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veteran has not raised any issues with the duty to notify or duty to assist. 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). II. New and Material Evidence In the present case, the RO, by a decision entered in July 2006, denied the Veteran's claim for service connection for hepatitis C on grounds that hepatitis C neither occurred in nor was caused by service. The RO notified the Veteran of its decision, and of his appellate rights, but he did not initiate an appeal of the RO's decision within one year. Nor was any new and material evidence received within a year. 38 C.F.R. § 3.156(b) (2017). As a result, the RO's decision became final. 38 U.S.C. § 7105 (West 2012); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2017). Accordingly, the claim may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156(a) (2017); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Evidence is considered "new" if it was not previously submitted to agency decision makers. "Material" evidence is 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). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). In the July 2006 rating decision, service connection for hepatitis C was denied on the basis that it was not related to service. The evidence received since the time of the RO's July 2006 rating decision includes the Veteran's testimony from a March 2017 Travel Board hearing. The Veteran testified at the March 2017 hearing that, in service, he was given vaccinations and the air guns were never cleaned after each shot. He also indicated that he had multiple unprotected sexual encounters in service. As the RO denied the Veteran's claim, noting hepatitis C was not related to service, this evidence supports the contention that the disability may have occurred in service, or is related to activity that occurred in service. This evidence was not before adjudicators when the Veteran's claim was last denied in March 2011, and it is not cumulative or redundant of the evidence of record at the time of that decision. It also relates to an unestablished fact necessary to substantiate the claim for service connection for hepatitis C, and raises a reasonable possibility of substantiating the claim. Accordingly, the claim is reopened. III. Service Connection The Veteran contends that he is entitled to service connection for DMII as a result of his active duty service, or in the alternative, secondary to hepatitis C. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131 (West 2012); 38 C.F.R. § 3.303(a) (2017). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Secondary service connection may be granted for a disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). Secondary service connection is also possible for the increase in severity of a nonservice connected disability that is caused (aggravated) by a service connected disability. 38 C.F.R. § 3.310(b). The current disability requirement is satisfied when a claimant has a disability proximate to the time of filing the claim or during the pendency of that claim, even if the disability has since resolved. Romanowsky v. Shinseki, 26 Vet. App. 303 (2013). As will be discussed below, the issue of entitlement to service connection for DMII is being denied due to the absence of a current diagnosis of DMII. Therefore, the Board will address the element of service connection that is missing, i.e., evidence of a current disability. 38 C.F.R. § 3.303. Service treatment records (STRs) reveal no complaint, finding, or diagnosis related to DMII. The Veteran provided statements that a VA physician found him to be pre-diabetic, but that he no longer takes medication for diabetes. Post-service treatment records from March 2012 revealed diabetic nephropathy changes, and a past diagnosis of borderline diabetes with a provisional diagnosis of diabetes without complications, type II or unspecified type. Subsequent to diabetic teleretinal imaging, the examiner noted a diagnosis of diabetes is not applicable. In December 2013, a VA physician noted a pre-diabetes diagnosis, and the Veteran began metformin due to him being more prone to become diabetic in the future. To date, there are no current diabetes disabilities in the evidence of record. The existence of a current disability is the basis of the first element of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997). In the absence of evidence of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The record evidence must show that the Veteran currently has the disability for which benefits are being claimed. There is no competent evidence of a diagnosis of DMII. Although the Veteran attests that he has diabetes, he has not submitted any medical evidence showing a current diagnosis. In light of the absence of a presently existing diagnosis of DMII, service connection for DMII is denied. 38 C.F.R. § 3.303. The Board finds that, as the record currently exists, the preponderance of the evidence is against the Veteran's claim; therefore, the benefit of the doubt provision does not apply, and the claim has to be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. ORDER As new and material evidence has been received, the previously denied claim of entitlement to service connection for hepatitis C is reopened. Entitlement to service connection for DMII is denied. REMAND Having reviewed the record evidence, the Board finds that additional development is necessary before the remaining claims can be adjudicated on the merits, to include the recently reopened claim of entitlement to service connection for hepatitis C. VA's duty to assist includes scheduling a VA examination when necessary. VA will provide a medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service or establishing that certain diseases manifested during an applicable presumptive period for which the veteran qualifies; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability; but there is insufficient competent medical evidence on file for VA to make a decision on the claim. See 38 U.S.C. § 5103A (d)(2) (West 2012); 38 C.F.R. § 3.159(c)(4)(i) (2017). The Veteran testified that his hepatitis C, left shoulder, right hip and kidney disabilities are all related to service. STRs reveal no complaints, findings, or diagnoses related to these disabilities. The evidence of record notes current diagnoses of hepatitis C, moderate acromioclavicular joint osteoarthritis in the left shoulder, an old healed fracture deformity of bilateral inferior pubic rami and possible trochanteric bursitis in the right hip, and bilateral renal cysts. In a March 2017 hearing, the Veteran testified that, in service, either air gun inoculations or his exposure to multiple sexual partners were risk factors related to his currently diagnosed hepatitis C. He also testified that his military occupational specialty was that of a cook, and it required heavy lifting of pots and pans, which may have led to his current left shoulder disability. Additionally, he noted that his right hip disability is the result of overcompensation for his service-connected right knee disability. Lastly, he contends that a VA physician indicated that his current kidney disability is likely related to his hepatitis C. The Veteran was afforded VA examination in August 2013, which noted no current diagnosis for a hip condition or hepatitis C. As previously noted, the current disability requirement is satisfied when a claimant has a disability proximate to the time of filing the claim or during the pendency of that claim, even if the disability has since resolved. Romanowsky v. Shinseki, 26 Vet. App. 303 (2013). As the Veteran has been diagnosed with both conditions during the pendency of his claim, he must be afforded additional VA examination to determine whether any of his current disabilities are related to his active service. In regards to the Veteran's right knee disability, during the March 2017 hearing, he testified that his right knee symptomatology had gotten worse since his last VA examination in August 2013. As this suggests a worsening of a right knee disability, a remand for a new VA examination is warranted. See Snuffer v. Gober, 10 Vet. App. 400 (1997). Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran an opportunity to identify any outstanding medical treatment records relevant to his claimed disabilities. After obtaining necessary authorization from the Veteran, all outstanding records should be obtained. 2. After obtaining any outstanding records, the Veteran should be afforded a new VA examination by an appropriate medical professional, to assess the nature of his hepatitis C. The examiner shall note in the report that the entire electronic claims file has been reviewed, to include this Remand. Following a review of the claims file, the examiner should offer the following opinion: a) Does the Veteran have a current diagnosis of hepatitis C, or hepatitis C residuals? b) If so, is it at least as likely as not (50 percent probability or greater) that his currently diagnosed hepatitis C had its onset in, or is otherwise related to any incident of his military service, to include having several unprotected sexual encounters with women, or through air gun inoculation? 3. After completion of directive 1, the Veteran should be afforded a new VA examination by an appropriate medical professional, to assess the nature of his left shoulder disability. The examiner shall note in the report that the entire electronic claims file has been reviewed, to include this Remand. Following a review of the claims file, the examiner should offer the following opinion: a) Does the Veteran have a current left shoulder disability? Please consider a December 2011 X-ray that revealed a diagnosis of moderate left acromioclavicular joint osteoarthritis. Provide a discussion as to whether this is representative of an injury or other cause. Describe how a conclusion that such a finding is osteoarthritis as opposed to traumatic arthritis. b) If so, is it at least as likely as not (50 percent probability or greater) that his currently diagnosed left shoulder disability had its onset in, or is otherwise related to any incident of his military service, to include lifting heavy pots and pans that held at least 100 gallons of liquid-based foods, such as soup? 4. After completion of directives 1 and 2, the Veteran should be afforded a VA examination by an appropriate medical professional, to assess the nature of his kidney disability. The examiner shall note in the report that the entire electronic claims file has been reviewed, to include this Remand. Following a review of the claims file, the examiner should offer the following opinion: a) Does the Veteran have a current kidney disability? Please consider a January 2012 diagnosis of mild acute kidney injury, and the Veteran's testimony that he had surgery to remove bilateral renal cysts. b) If so, is it at least as likely as not (50 percent probability or greater) that any kidney disability had its onset in, or is otherwise related to any incident of his military service, to include having several unprotected sexual encounters with women, or through air gun inoculation? c) Notwithstanding the answer to section b), is it at least as likely as not (50 percent probability or greater) that the Veteran's currently diagnosed kidney disability was caused by or aggravated beyond its natural progression by hepatitis C? Please note that the examiner must address both causation and aggravation. 5. After completion of directive 1, the Veteran should be afforded an updated VA examination to determine the current nature and severity of his service-connected right knee disability. Following a review of the claims file, the examiner should address the following: a) The examiner should identify any symptoms that the Veteran currently manifests or has manifested that are attributable to his service-connected right knee disability. All appropriate testing, including range of motion, should be performed. b) The examiner is asked to describe whether pain significantly limits functional ability during flare-ups and after repetitive use, and if so, the examiner must estimate range of motion in degrees during those times. If the examination does not take place during a flare or after repetitive use, the examiner must glean information regarding the severity, frequency, duration and functional loss manifestations during such times from the Veteran, medical records, and other available sources to provide the requested estimations. Efforts to obtain such information must be documented. If there is no pain and/or no limitation of function, such facts must be noted in the report. c) The examination should also record the results of range of motion testing for pain on BOTH active and passive motion AND in weight-bearing and nonweight-bearing. 6. After completion of directives 1 and 5, the Veteran should be afforded a new VA examination by an appropriate medical professional, to assess his right hip and thigh disability. The examiner shall note in the report that the entire electronic claims file has been reviewed, to include this Remand. Following a review of the claims file, the examiner should offer the following opinion: a) Does the Veteran have a current right hip and/or thigh disability? Please consider a May 2011 diagnosis of trochanteric bursitis, and a July 2011 hip X-ray revealing a healed fracture deformity of bilateral inferior pubic rami. b) If so, is it at least as likely as not (50 percent probability or greater) that any right hip and/or thigh disability had its onset in, or is otherwise related to any incident of his military service? c) Notwithstanding the answer to section b), is it at least as likely as not (50 percent probability or greater) that the Veteran's currently diagnosed right hip and/or thigh disability was caused by or aggravated beyond its natural progression by his service-connected right knee disability? Please note that the examiner must address both causation and aggravation. Also, consider the Veteran's testimony that he believes he is overcompensating for his right knee through the use of his right hip and thigh. All opinions must be supported by a clear rationale and reasoning behind the opinion. There must be a reasoned medical explanation connecting the expert's observations and conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304. If it is not possible to provide the requested opinions without resorting to speculation, the examiner should state why speculation would be required in this case. Any missing evidence that would enable the examiner to provide the opinion should be identified. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically considered in formulating any opinions. If the examiner rejects the Veteran's reports, he or she must provide the medical rationale for doing so. The absence of treatment records is not a legally sufficient reason for rejecting the Veteran's reports, unless the existence of such records would be medically expected. 7. After completing the above actions, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a Supplemental Statement of the Case. The Veteran has the right to submit additional evidence and argument on the 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. §§ 5109B, 7112 (West 2012). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs