Citation Nr: 18116135 Decision Date: 07/05/18 Archive Date: 07/05/18 DOCKET NO. 16-28 949 DATE: July 5, 2018 ORDER New and material evidence having been received, the claim for service connection for hepatitis is reopened, and to this extent the appeal is granted. New and material evidence having been received, the claim for service connection for an acquired psychiatric disability is reopened, and to this extent the appeal is granted. REMANDED Entitlement to service connection for hepatitis is remanded. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), major depressive disorder, generalized anxiety disorder, and a nervous condition is remanded. FINDINGS OF FACT 1. In a January 2013 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for hepatitis; the Veteran did not appeal the decision and new and material evidence was not received within the one- year appeal period. 2. Evidence associated with the record since the January 2013 decision relates to unestablished facts and raises a reasonable possibility of substantiating the claim of entitlement to service connection for hepatitis. 3. In a December 1972 rating decision, the RO denied service connection for an acquired psychiatric disability; the Veteran did not appeal the decision and new and material evidence was not received within the one- year appeal period. 4. In a July 2009 rating decision, the RO denied a claim to reopen a service connection for an acquired psychiatric disability; the Veteran did not appeal the decision and new and material evidence was not received within the one- year appeal period. 5. Evidence associated with the record since the July 2009 decision relates to unestablished facts and raises a reasonable possibility of substantiating the claim of entitlement to service connection for an acquired psychiatric disability. CONCLUSIONS OF LAW 1. The portion of the January 2013 rating decision denying service connection for hepatitis is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.201, 20.302, 20.1103. 2. New and material evidence has been received and the claim seeking service connection for hepatitis is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 3. The portion of the December 1972 rating decision denying service connection for an acquired psychiatric disability is final. 38 U.S.C. § 4005 (c) (1970); 38 C.F.R. §§ 19.118, 19.153 (1972); currently 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 20.201, 20.302. 4. The portion of the July 2009 rating decision denying a claim to reopen service connection for an acquired psychiatric disorder is final. 38 U.S.C. § 7105 (2002); 38 C.F.R. §§ 20.201, 20.302, 20.1103 (2009). 5. New and material evidence has been received and the claim seeking service connection for an acquired psychiatric disorder is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1971 to March 1971. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a December 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran originally requested a hearing before the Board. In September 2017, VA received in writing from the Veteran’s attorney that the Veteran withdrew that request. 38 C.F.R. 20.704(e). The Veteran has filed several claims for a mental health disability which have been certified to the Board. Some of these claims are original service connection claims and others relate to prior claims, which as discussed below, have been denied in rating decisions that are now final and the issue before the Board is whether there is new and material evidence to reopen the claim for service connection. In a similar manner, the Veteran has filed a prior claim for hepatitis that was denied in a now final rating decision but also has a current original service connection claim for hepatitis C. The Board notes that the Veteran, as a lay person, filed his claims for service connection for the various mental health disabilities and for hepatitis C. Multiple medical diagnoses that differ from the claimed condition do not necessarily represent a separate claim, and what constitutes a claim cannot be limited by a lay Veteran’s assertion of his condition in his application, but must be construed based on the reasonable expectations of the non-expert claimant and the evidence developed in processing the claim. Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009). When determining the scope of an issue on appeal, the Board is required to consider the claimant’s description of the claim, the symptoms the claimant describes, and the information the claimant submits in support of that claim. Brokowski v. Shinseki, 23 Vet. App. 79 (2009). Therefore, the Board finds that the Veteran’s mental health claims should be stated as one broadly characterized claim that includes the psychiatric symptoms for which he seeks service connection. The Board has also applied the same reasoning to all claims involving hepatitis C. Because finality had attached to the previous rating decisions for an acquired psychiatric disorder and for hepatitis, the Board has jurisdictional responsibility to consider whether it is proper for a claim to be reopened, and what the RO determined in this regard is irrelevant. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). For this reason, the Board will first address whether the claims should be reopened. 1. Whether new and material evidence has been submitted to reopen a claim for service connection for hepatitis. 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. 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 credibility of the evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for reopening is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The Board notes it appears the RO re-opened the claim for service connection for hepatitis and denied the claim de novo. Nevertheless, as noted above, the Board has jurisdictional responsibility to consider whether it is proper for a claim to be reopened, and what the RO determined in this regard is irrelevant. Jackson, 265 F.3d at 1369. The RO denied the Veteran’s claim of service connection for hepatitis in a January 2013 rating decision, finding that there was no evidence it occurred in or was caused by service. The Veteran was provided notice of this decision and his appellate rights but did not appeal the decision or submit new and material evidence within one year of the decision. Therefore, the decision is final. See 38 C.F.R. §§ 3.156, 20.302, 20.1103. The evidence received since the January 2013 rating decision includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156 (2017). For example, in January 2014 (just after the January 2013 rating decision became final), one of the Veteran’s VA medical providers wrote a letter explaining that the Veteran had risk factors from service for hepatitis C such as vaccinations by an air gun and shared razor. This new evidence addresses the reason for the previous denial; that is, an event in service with a nexus opinion establishing the event or events resulted in the Veteran’s hepatitis C diagnosis, and raises a reasonable possibility of substantiating the claim. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claim is reopened and will be considered on the merits. 2. Whether new and material evidence has been submitted to reopen a claim for service connection for an acquired psychiatric disability. The Board notes the RO re-opened the claim for service connection for an acquired psychiatric disability, but the Board has jurisdictional responsibility to consider whether it is proper for a claim to be reopened, and what the RO determined in this regard is irrelevant. Jackson, supra. The RO denied the Veteran’s claim of service connection for an acquired psychiatric disorder in a December 1972 rating decision, finding that the Veteran instead had a constitutional or developmental abnormality. The Veteran was provided notice of this decision and his appellate rights but did not appeal the decision or submit new and material evidence within one year of the decision. Therefore, the decision is final. 38 C.F.R. § 19.118, 19.153 (1972); currently 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2017). The RO denied the Veteran’s claim to reopen the claim of service connection for an acquired psychiatric disorder in a July 2009 rating decision, finding that the Veteran had not submitted new and material evidence. The Veteran was provided notice of this decision and his appellate rights but did not appeal the decision or submit new and material evidence within one year of the decision. Therefore, the decision is final. 38 C.F.R. §§ 3.156, 20.302, 20.1103 The evidence received since the July 2009 rating decision includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156. For example, the Veteran has received serval mental health diagnoses, such as PTSD, generalized anxiety disorder, and major depressive disorder. In December 2016, a private psychologist linked the Veteran’s current mental health symptoms to service. This new evidence addresses the reason for the previous denial; that is, the diagnosis of an acquired psychiatric disorder and a nexus to service, and raises a reasonable possibility of substantiating the claim. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claim is reopened and will be considered on the merits. REASONS FOR REMAND 1. Service connection for hepatitis C is remanded. In January 2014, one of the Veteran’s medical providers at VA wrote a letter explaining that the Veteran had transmission risk factors for hepatitis C from service such as vaccinations by an air gun and shared razor. From this history and the timing of the risk factors, the VA medical provider concluded it is at least as likely as not that he contracted hepatitis C from service. The provider admitted, however, that the Veteran had additional, post service risk factors for hepatitis C, namely he had been an intravenous drug and intranasal cocaine user. In addition, the medical records in the file also indicate the Veteran’s past employment as a sanitation worker also may have played a role. The VA medical provider, however, did not discuss the various risk factors and why she concluded the in- service risk factors are just as likely a source of the Veteran’s hepatitis C as the non-service risk factors. The Veteran also received a VA examination in August 2014 and the examiner concluded it was less likely than not the Veteran developed hepatitis C as a result of service. The examiner, however, gave a very cryptic rationale that there were no pertinent service treatment records, and the time gap between service and the diagnosis did not establish a longitudinal trend. To the extent the examiner decided the diagnosis of hepatitis C occurred too long after service, this reasoning conflicts with the VA medical provider who concluded the time period between service and diagnosis supported service connection. The examiner also did not discuss the evidence of air gun vaccinations and a shared razor as well as any other of the Veteran’s risk factors. In addition, the Veteran subsequently submitted an article that reports how hepatitis can initially manifest as cold symptoms and the service treatment records do show treatment for cold symptoms in January 1971. Accordingly, the Board finds the examination is inadequate and a new VA examination must be provided to the Veteran. See 38 U.S.C. § 5103A (d) (West 2002); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). 2. Service connection for an acquired psychiatric disability. The Board’s review of the record demonstrates that there are apparently available medical records that have not been associated with the file. For instance, in various treatment records, the Veteran reports treatment sometime in the 1990s for his mental health symptoms. The records from this treatment have not been associated with the file. Nevertheless, in the written argument submitted by the Veteran’s attorney, specific references are made to treatment occurring in December 1993 with some facts as to the Veteran’s history or treatment. In addition, the Veteran has sought mental health treatment more recently at McIntosh Trail Community Services. Some of the records are in the file, but not all of them. A private psychologist, Dr. J Baxendale, provided an evaluation and opinions in a December 2016 report in which he indicated reviewing approximately 17 documents of treatment from McIntosh with the latest document relating to July 2015 treatment. Many of the McIntosh treatment notes and assessments he reviewed, especially after 2012, are not in the file. The Board has determined that both the 1993 treatment records and all the McIntosh Trail treatment records are relevant and there is a reasonable possibility that the records could help substantiate the claim. See Golz v. Shinseki, 590 F.3d 1317, 1322 (Fed. Cir. 2010) (discussing records from the Social Security Administration). Therefore, upon remand, the RO should ask the Veteran to submit these records or authorize VA to obtain the records on his behalf as well as any other private medical treatment that relate to the Veteran’s claims. VA has a duty to obtain any records generated by VA facilities that may have an impact on the adjudication of a claim as such records are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The Veteran states that shortly after separation in 1971, he sought treatment at the VA Medical Center (VAMC) in Miami Florida. They would not treat him at that time because he was not service connected for any disability. Even if there ultimately was no treatment, the Veteran’s attempt at seeking treatment at the VAMC may be documented. The only treatment records from the Miami VAMC are in electronic form regarding January 2013 treatment. It does not preclude, however, paper documents dating from approximately 1971, which may now be stored in an archive facility. No attempt to obtain any such documentation has been obtained. A remand is required to attempt to obtain the records. Ongoing VA medical records should also be obtained. See 38 U.S.C. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). The Veteran has recently asserted that while in service, he was not only physically assaulted, but he was almost sexually assaulted as well. It does not appear the Veteran has provided notice of proving service connection for an acquired psychiatric disorder based upon sexual or physical assault. The Board has therefore determined that full notice under 38 C.F.R. § 3.304 (f) should be given. There has not been a VA examination to determine whether the Veteran has an acquired psychiatric disability related to incidents noted in the service treatment records or service generally. Once the records development is completed, a VA medical examination and accompanying medical opinion is needed to ascertain whether mental health disabilities are present and to ascertain any relationship to service. 38 C.F.R. § 3.159; see also McLendon v. Nicholson, 20 Vet. App. 79, 86 (2006). The matters are REMANDED for the following actions: 1. Ask the Veteran to identify all outstanding treatment records relevant to his acquired psychiatric disability and hepatitis C claim. All properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. The letter should specifically ask the Veteran to submit or authorize VA to obtain records from the December 1993 mental health treatment and hospitalization and a complete set of records from the McIntosh Trail Community Services. 2. Provide the Veteran with a PTSD personal assault stressor letter describing the types of evidence he may submit under 38 C.F.R. § 3.304 (f)(5). 3. The RO should obtain all VA medical records, electronic or paper, from the Miami, Florida VAMC and associated outpatient clinics from 1971 to the present, not already of record. The RO is specifically directed to request not only electronic notes, but to contact the appropriate custodian to ascertain whether there are paper records that relate to the Veteran. All attempts to obtain these records should be documented in the file. Any negative replies must be in writing, and associated with the file. In addition, obtain all VAMC treatment records from November 2015 to the present. 4. After records development is completed, the Veteran should be afforded a VA examination to determine whether the Veteran’s hepatitis C is possibly related to service. The claim file should be made available to the examiner. All necessary tests should be conducted and the results reported. The examiner should elicit a full history from the Veteran and consider the lay statements of record. It is noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. Following review of the claims file and examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the current hepatitis C disability is related to an in-service injury, event, or disease. In offering the opinion, the physician is asked to consider the following risk factors, as well as any other risk factors as determined by the physician: air gun inoculations, shared razors, intravenous drug and intranasal cocaine use, and post-service employment in sanitation. If feasible, the examiner is asked to discuss the clinical significance of each and the likely role, if any, each factor played in causing the Veteran to contract hepatitis C. The examiner is asked to comment on the medical article, apparently directed at lay persons, that the initial onset of hepatitis can manifest itself as symptoms of a cold and the service treatment of cold symptoms in January and February 1971. A rationale for all opinions expressed should be provided as the Board is precluded from making any medical findings. 5. After records development is completed, the Veteran should be afforded a VA mental health examination to determine the nature of any acquired psychiatric disability to include PTSD, major depressive disorder, generalized anxiety disorder, and a nervous condition, and to obtain an opinion as to whether such is possibly related to service. The claim file should be made available to the examiner. All necessary tests should be conducted and the results reported. The examiner should elicit a full history from the Veteran and consider the lay statements of record. It is noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. Following review of the claims file and examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current acquired psychiatric disability is related to an in-service injury, event, or disease. (Continued on the next page)   A rationale for all opinions expressed should be provided as the Board is precluded from making any medical findings. 6. Readjudicate the claims on appeal. If either of the benefits sought remain denied, issue a Supplemental Statement of the Case to the Veteran and his attorney and provide an appropriate period for response. L. Chu Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Russell Veldenz, Counsel