Citation Nr: 18126714 Decision Date: 08/15/18 Archive Date: 08/15/18 DOCKET NO. 15-26 640 DATE: August 15, 2018 ORDER Whether new and material evidence has been submitted sufficient to reopen a claim for service connection for hepatitis C is granted. Whether new and material evidence has been submitted sufficient to reopen a claim for service connection for post-traumatic stress disorder (PTSD) is granted. REMANDED Entitlement to service connection for hepatitis C is remanded. Entitlement to service connection for PTSD is remanded. FINDINGS OF FACT 1. Service connection for hepatitis C was initially denied in an appealed rating decision dated in September 1999; this decision is final in the absence of a perfected appeal. 2. An application to reopen the previously disallowed claim for service connection for hepatitis C was denied in an April 2002 rating decision; this decision is final in the absence of a perfected appeal. 3. The evidence associated with the claims file since the April 2002 rating decision raises a reasonable possibility of substantiating the claim of entitlement to service connection for hepatitis C. 4. The September 1999 rating decision denying entitlement to service connection for PTSD is final in the absence of a perfected appeal. 5. The evidence associated with the claims file since the September 1999 rating decision raises a reasonable possibility of substantiating the claim of entitlement to service connection for PTSD. CONCLUSIONS OF LAW 1. The September 1999 and April 2002 rating decisions denying entitlement to service connection for hepatitis C are final. 38 U.S.C. § 7105 (c) (West 2016); 38 C.F.R. §§ 20.1103, 20.204 (2017). 2. Evidence received since the April 2002 rating decision is new and material and the previously denied claims for service connection for hepatitis C is reopened. 38 U.S.C. § 5108 (West 2016); 38 C.F.R. § 3.156 (a) (2017). 3. The September 1999 rating decision denying entitlement to service connection for PTSD is final. 38 U.S.C. § 7105 (c) (West 2016); 38 C.F.R. §§ 20.1103, 20.204 (2017). 4. Evidence received since the September 1999 rating decision is new and material and the previously denied claims for service connection for PTSD is reopened. 38 U.S.C. § 5108 (West 2016); 38 C.F.R. § 3.156 (a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence New and material evidence is still required to reopen the previously denied claims of entitlement to service connection for hepatitis C and PTSD. Therefore, the April 2002 rating decision is final. 38 U.S.C. § 7105 (West 2002); 38 C.F.R. § 3.105 (2008). The Board must initially determine whether there is new and material evidence to reopen the hepatitis C and PTSD issues before proceeding to adjudicate the underlying merits of the claims. If the Board finds that no new and material evidence has been provided, that is where the analysis must end. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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) (2017). The question of whether new and material evidence has been received sufficient to reopen the matter is a threshold question in any case involving a previously denied claim. Wakeford v. Brown, 8 Vet. App. 237, 239-40 (1995). The United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156 (a) as creating a low threshold, and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159 (c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” Shade v. Shinseki, 24 Vet. App. 110 (2010). See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). That is, a finally decided claim must be reopened where the claimant submits new and material evidence relative to a fact that was unestablished at the time of the prior final decision on the claim. Shade, 24 Vet. App. at 119. For the purpose of reopening a claim, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). The Board observes that a new etiological theory for service connection does not constitute a new claim. See Ashford v. Brown, 10 Vet. App. 120, 123 (1997). 1. Whether new and material evidence has been submitted sufficient to reopen a claim for service connection for hepatitis C The Veteran’s initial claim for service connection for hepatitis C was denied in a September 1999 rating decision as service treatment record did not show any treatment for hepatitis C during service. The Veteran was informed of this decision, but did file a notice of disagreement. Accordingly, the decision became final. Following a submission of a subsequent claim for service, in an April 2002 rating decision, the RO denied the Veteran’s claim for service connection for hepatitis C finding that new and material evidence had not been submitted to reopen the claim. The RO continued the denial on the basis that the Veteran had not submitted evidence which demonstrated that the claimed condition was incurred in or aggravated by service. The Veteran was informed of this decision by letter dated in April 2002. Although the Veteran filed a notice of disagreement in February 2013, within one year of notification of the April 2002 rating decision, and a Statement of the Case was issued in June 2003, the Veteran failed to perfect the appeal by filing a Form 9. Therefore, the April 2002 rating decision became final. 38 U.S.C. § 7104 (a); 38 C.F.R. §§ 20.1100 (a), 20.1104. This decision is the most recent final denial on the claim for service connection for hepatitis C. Here, the Board finds that new and material evidence within the meaning of 38 C.F.R. § 3.156 (a) has been received since the final April 2002 rating decision became final. Specifically, the Veteran submitted an April 2011 medical record which stated that the Veteran’s hepatitis C diagnosis had an infection duration of 40 to 41 years. Furthermore, the Veteran testified during his September 2017 Board hearing that he shared razors in service and was vaccinated in service with a vaccination gun which was used on multiple soldiers. This new evidence was neither cumulative nor redundant. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board finds that the additional medical evidence of record constitutes new and material evidence to reopen the claim for hepatitis C. In short, this evidence, if presumed credible, relates to an unestablished fact necessary to substantiate the hepatitis C claim and raises a reasonable possibility of substantiating the claim. Accordingly, the Board finds that new and material evidence has been presented to reopen the Veteran’s previously denied tinnitus claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. Whether new and material evidence has been submitted sufficient to reopen a claim for service connection for post-traumatic stress disorder (PTSD) In a September 1999 rating decision, the RO denied the Veteran’s claim for service connection for PTSD. The RO denied the Veterans claim on the basis that the Veteran did not complain of a nervous condition in service nor did the Veteran have a current diagnosis of PTSD. The Veteran was informed of this decision by letter dated in October 1999. As new and material evidence was not received within the one-year period following notification of the decision, and the Veteran did not initiate an appeal of the decision by filing a notice of disagreement, the decision became final. 38 U.S.C. § 7104 (a); 38 C.F.R. §§ 20.1100 (a), 20.1104. Here, the Board finds that new and material evidence within the meaning of 38 C.F.R. § 3.156 (a) has been received since the final September 1999 rating decision became final. Specifically, the Veteran submitted an August 2011 VA treatment record which diagnosed the Veteran with PTSD. Furthermore, the Veteran testified during his September 2017 Board hearing that he believes his PTSD was caused by an incident in service where he was threatened by a drill instructor. This new evidence was neither cumulative nor redundant. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board finds that the additional medical evidence of record constitutes new and material evidence to reopen the claim for PTSD. In short, this evidence, if presumed credible, relates to an unestablished fact necessary to substantiate the PTSD claim and raises a reasonable possibility of substantiating the claim. Accordingly, the Board finds that new and material evidence has been presented to reopen the Veteran’s previously denied tinnitus claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS FOR REMAND 1. Entitlement to service connection for hepatitis C is remanded. For service connection claims, VA is obliged to provide an examination or obtain a medical opinion in a claim when (1) the record contains competent evidence that the claimant has a current disability, (2) the record indicates that the disability or signs and symptoms of disability may be associated with active service, and (3) the record does not contain sufficient information to make a decision on the claim. See 38 U.S.C. § 5103A (d); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. The Veteran alleges he contracted hepatitis C during his active duty service. Specifically, the Veteran says his current diagnosis for hepatitis C is a result of contaminated air guns used to administer vaccinations and sharing razors with fellow soldiers. In light of these assertions, and the Veteran’s post-service treatment for hepatitis C, the Board finds the AOJ must provide a VA examination and medical opinion. 2. Entitlement to service connection for PTSD is remanded. As noted above, VA is obliged to provide an examination or obtain a medical opinion in a claim when (1) the record contains competent evidence that the claimant has a current disability, (2) the record indicates that the disability or signs and symptoms of disability may be associated with active service, and (3) the record does not contain sufficient information to make a decision on the claim. See 38 U.S.C. § 5103A (d); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. There are special considerations for PTSD claims predicated on a personal assault. The pertinent regulation, 38 C.F.R. § 3.304 (f)(5), provides that PTSD based on a personal assault in service permits evidence from sources other than the Veteran’s service records which may corroborate his or her account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. 38 C.F.R. § 3.304 (f)(5). Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance, substance abuse, episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. 38 C.F.R. § 3.304 (f)(5). VA will not deny a PTSD claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the Veteran’s service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. In addition, VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. 38 C.F.R. § 3.304 (f)(5). It is important to note that, for personal assault PTSD claims, an after-the-fact medical opinion may serve as the credible supporting evidence of the reported stressor. Patton v. West, 12 Vet. App. 272, 280 (1999). Additionally, a veteran’s failure to report an in-service sexual assault to military authorities may not be considered as relevant evidence tending to prove that a sexual assault did not occur. AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013). The Veteran was diagnosed with PTSD and he claims that his PTSD was caused through threats from a drill instructor. A VA examination is necessary to whether the Veteran’s PTSD was caused by his claimed in-service stressor. The matters are REMANDED for the following action: 1. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from VA or private health care providers. 2. Send the Veteran notice required for PTSD claims based on personal assaults, and allow time for a response. Then, attempt to corroborate the Veteran’s in-service stressor based on personal assault, including threats and harassment from his drill instructor. If more details are needed, contact the Veteran to request the information. 3. After any additional records are associated with the claims file, the AOJ should schedule the Veteran for a VA examination, to determine the etiology and severity of his hepatitis C disability. The electronic claims file must be provided to and reviewed by the examiner in conjunction with the examination. All necessary diagnostic testing and evaluation should be performed, and all findings set forth in detail. Based upon a review of the entirety of the claims file, the history presented by the Veteran, and the examination results, the examiner is requested to provide an opinion as to the following question: Is it at least as likely as not (i.e. a 50 percent probability or greater) that any diagnosed hepatitis C disability is related to the Veteran’s active military service, to include the Veteran’s contention that he contracted hepatitis C disease through sharing razors or air gun inoculations he received during service? The examiner is asked to specifically address the August 1999 medical record which found that the Veteran likely contracted hepatitis C around 1971 or 1972. If the examiner determines that s/he cannot provide an opinion on the issue at hand without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, s/he should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted regarding the etiology of the diagnosed disorder or whether additional testing or information could be obtained that would lead to a conclusive opinion. (The AOJ should ensure that any additional evidentiary development suggested by the examiner should be undertaken so that a definitive opinion can be obtained.) 4. The AOJ should schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any diagnosed PTSD. All tests and studies deemed necessary by the examiner must be performed. The examiner’s explanation should also take into account and address the symptoms, findings, and diagnoses expressed in the post-service VA treatment records. Based on a review of the claims file and clinical findings of the examination, the VA examiner is requested to determine whether the Veteran meets the criteria for a diagnosis of PTSD. After such findings have been made the VA examiner should address the following as relevant: a) If the examiner finds that the Veteran does not demonstrate a current diagnosis of PTSD, the examiner should address and explain the discrepancies with all previous diagnoses of PTSD. b) The examiner must opine whether the evidence of record, including the Veteran’s lay statements, and the Veteran’s service records, corroborate the claim that a personal assault occurred in service (38 C.F.R. § 3.304(f)(5)). If the examiner finds that evidence indicates that a personal assault occurred during the Veteran’s active service, the examiner must opine whether any PTSD is at least as likely as not (that is, a 50 percent or greater probability) related to the in-service personal assault. c) If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not (that is, a 50 percent or greater probability) related to an in-service injury, event, or disease, to include threats and harassment from his drill instructor. A supporting rationale for all opinions expressed must be provided. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Nelson, Associate Counsel