Citation Nr: 18125694 Decision Date: 08/10/18 Archive Date: 08/10/18 DOCKET NO. 15-25 707 DATE: August 10, 2018 ORDER Entitlement to an effective date earlier than December 13, 2007 for the award of service connection for hepatitis C is denied. REMANDED Entitlement to an increased rating greater than 10 percent for hepatitis C from October 8, 2013 is remanded. Entitlement to an increased rating greater than 50 percent for posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. A September 2006 rating decision denied entitlement to service connection for hepatitis C. The Veteran did not appeal; as such the decision became final. 2. VA received an informal petition to reopen his service connection claim for hepatitis C on December 13, 2007. The Board granted the claim, and the AOJ assigned the effective date from December 13, 2007. 3. Prior to the December 13, 2007 petition to reopen, there were no pending requests to reopen that remained unadjudicated, and no appeals or new and material evidence were submitted during the applicable appellate period. CONCLUSION OF LAW The criteria for an effective date earlier than December 13, 2007 for the award of service connection for hepatitis C have not been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1974 to February 1983 and January 1984 to September 1995. In an April 2014 decision review officer (DRO) decision, the Agency of Original Jurisdiction (AOJ) implemented the Board’s January 2014 decision to grant service connection for hepatitis C. The April 2014 DRO decision granted an earlier effective date of December 13, 2007 for hepatitis C, assigned a 20 percent evaluation from November 17, 2008, and a 10 percent evaluation from October 8, 2013. The Veteran appealed the effective date for the award of service connection and the 10 percent evaluation from October 8, 2013. When, as here, a Veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran contends that his symptoms attributable to hepatitis C have been present since 1995. Further, he argues that his hepatitis C award for service connection should also go back to 1995 because he was originally service-connected for a liver benign cyst/hemangioma effective October 1, 1995. The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on a claim for service connection and a claim reopened after final adjudication “shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.” 38 U.S.C. § 5110(a). The implementing regulation clarifies this to mean that the effective date of service connection and compensation based on a reopened claim will be the “[d]ate of receipt of claim or date entitlement arose, whichever is later.” 38 C.F.R. § 3.400. During the pendency of the appeal, the definition of what constitutes a valid claim has changed. For the purposes of this case, a claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p) (2014). The date of receipt shall be the date on which a claim, information, or evidence was received by VA. 38 C.F.R. § 3.1(r). A September 2006 rating decision denied service connection for hepatitis C. The Veteran did not appeal. Thus, the rating decision became final. The AOJ interpreted a December 13, 2007 statement from the Veteran as an informal petition to reopen his hepatitis C service connection claim. The claim was reopened in a September 2013 Board decision and granted in a January 2014 Board decision. The AOJ, in an April 2014 DRO decision, established the effective date for the award of service connection for hepatitis C as December 13, 2007, or the date the Veteran submitted his informal petition to reopen. As service connection was granted based on the reopening of a claim, the appropriate effective date can be no earlier than the date of his petition to reopen, which is December 13, 2007. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(q)(2); Washington v. Gober, 10 Vet. App. 391, 393 (1997). The Board finds there are no unadjudicated applications for service connection, unaddressed notices of disagreement (NODs), or new and material evidence prior to the Veteran’s December 13, 2007 petition to reopen. At no other time has the Veteran communicated intent to apply for, or reopen his previously denied claim of service connection for hepatitis C, and as such there are no other outstanding unadjudicated applications for service connection. 38 C.F.R. § 3.155(a) (2014). The Board notes that the Veteran did not appeal a January 2010 Board decision denying the Veteran’s claim of entitlement to a compensable disability rating for benign liver cyst and hemangioma. Further, the Veteran has not submitted or suggested competent evidence showing that his benign cyst/hemangioma is hepatitis C. As a result, the Board finds that entitlement to an effective date earlier than December 13, 2007 is denied. REASONS FOR REMAND In his June 2015 VA Form 9, the Veteran stated he recently “had liver surgery and scans on [his] ongoing condition.” See June 2015 VA Form 9. The April 2016 supplemental statement of the case (SSOC) lists medical records from VAMC Durham from May 14, 2015 through April 16, 2016 that were “electronically reviewed.” However, the evidentiary record does not contain such records. As such, the Board notes that there are identified, outstanding treatment records that should be obtained. See Sullivan v. McDonald, 815 F.3d 786, 793 (2016) (holding that 38 C.F.R. §3.159 (c)(3) extends the VA’s duty to assist in obtaining sufficiently identified VA medical records or records of examination or treatment at non-VA facilities by VA, regardless of their relevance). On remand, the AOJ should obtain the missing records and associate them with the claims file. Further, the Veteran last was evaluated for his PTSD in April 2014 and hepatitis C in October 2013. See April 2014 and October 2013 VA examination reports. In March 2018, the Veteran’s representative requested a remand for new examinations as “the ones of record are too old to adequately evaluate the disabilities.” See March 2018 Appellant Brief. Where a Veteran contends that a disability has worsened since his last VA examination, and the last examination is too remote to constitute a contemporaneous examination, a new examination is required. See 38 U.S.C. § 5103A(d) (2012); 38 C.F.R. § 3.159(c)(4) (2017); see also Snuffer v. Gober, 10 Vet. App. 400, 403-04 (1997); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). On remand, the AOJ should afford the Veteran new VA examinations to determine the current severity of his hepatitis C and PTSD. The matter is REMANDED for the following action: 1. Obtain any outstanding VA treatment records relevant to treatment the Veteran received for his hepatitis C and PTSD symptoms that are not already of record, including those from the Durham VAMC as of May 14, 2015. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified and the record clearly documented. 2. Schedule the Veteran for examinations to determine the current severity of his PTSD and hepatitis C. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the clinician. The examination must include a notation that this record review took place. (CONTINUED ON THE NEXT PAGE) 3. After the above has been completed to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Salazar, Associate Counsel