Citation Nr: 18128965 Decision Date: 08/23/18 Archive Date: 08/23/18 DOCKET NO. 14-38 454 DATE: August 23, 2018 ORDER New and material evidence having been received, the application to reopen the previously denied claim of entitlement to service connection hepatitis C is granted. REMANDED Entitlement to service connection for hepatitis C is remanded. Entitlement to service connection for a traumatic brain injury (TBI) is remanded. Entitlement to an initial rating in excess of 20 percent for disc disease and new bone formation causing narrowing of the left exit foramina at L4-L5 with chronic low back pain with radiculopathy is remanded. Entitlement to an initial rating in excess of 20 percent for right lumbar radiculopathy is remanded. Entitlement to an effective date prior to August 9, 2011 for the award of a separate compensable rating for right lumbar radiculopathy is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities is remanded. FINDINGS OF FACT 1. In a September 2007 rating decision, the RO denied service connection for hepatitis C. The Veteran filed a timely notice of disagreement in September 2008; however, in correspondence received in January 2009, the appellant indicated that he wanted to withdraw his pending appeal. 2. The evidence received since the final September 2007 rating decision denying service connection for hepatitis C includes evidence that relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim of service connection for hepatitis C. CONCLUSIONS OF LAW 1. The September 2007 rating decision denying the claim of service connection for hepatitis C is final. 38 U.S.C. § 4004(b) (2002); 38 C.F.R. § 19.104 (2007). 2. New and material evidence has been received to warrant reopening of the claim of service connection for hepatitis C. 38 U.S.C. §§ 5107, 5108 (2014); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from February 1980 to February 1983 and from March 1994 to February 1985. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from January 2009, June 2011, and January 2012 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) located in Boston, Massachusetts. The Veteran testified before the undersigned at a Board videoconference hearing in March 2018. A transcript of the hearing is of record. The Board notes that during the March 2018 Board hearing, the appellant provided testimony for the issue of entitlement to service connection for posttraumatic stress disorder (PTSD). However, that issue is not currently on appeal. In this regard, in a May 2009 rating decision, the RO denied service connection for PTSD. The appellant filed a timely notice of disagreement in December 2009. A statement of the case was issued on October 13, 2010. In pertinent part, the statement of the case informed the Veteran that his substantive appeal must be filed within 60 days from the date of the statement of the case, or within the remainder, if any, of the one-year period from the date of the letter notifying him of the action that he appealed, which was issued in May 2009. The Veteran’s substantive appeal (VA Form 9) was received by the RO on December 30, 2010. In correspondence dated in January 2011, the RO informed that Veteran that his substantive appeal was untimely. In so finding, it was noted that the appellant had until December 13, 2010 to file a substantive appeal. The evidence available to the Board does not show that the appellant appealed this determination. As such, the issue of entitlement to service connection for PTSD is not on appeal and will not be addressed at this time. 1. Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection hepatitis C In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105 (2014); 38 C.F.R. § 20.1100, 20.1103 (2017). Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. 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 (2017). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). 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 threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See 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, to include by triggering the Secretary’s duty to assist. Id. at 118. Analysis The Veteran’s claim of service connection for hepatitis C was initially denied in a September 2007 rating decision because service treatment records did not show that the Veteran was diagnosed with hepatitis C during military service. Further, there was no medical evidence showing that the appellant was diagnosed with hepatitis C to a compensable degree within one year of separation from military service. Lastly, there was no medical evidence showing that the appellant’s current hepatitis C is related to military service. The Veteran was notified of the decision and his appellate rights in a September 2007 letter. He filed a notice of disagreement in September 2008. However, in correspondence received in January 2009, prior to the issuance of a statement of the case, the appellant requested that his appeal be withdrawn. Thus, the RO’s September 2007 rating decision is final and not subject to revision on the same factual basis. See 38 U.S.C. § 7105(c) (2002); 38 C.F.R. §§ 3.104, 20.1103 (2007). The Veteran now seeks to reopen the previously denied claim of service connection for hepatitis C. As noted above, despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108 (2014); 38 C.F.R. § 3.156 (2017). The evidence of record at the time of the September 2007 rating decision included service treatment records and the report of a February 2007 VA examination confirming a diagnosis of hepatitis C. The additional evidence received since the final September 2007 rating decision includes a transcript of the May 2018 Board hearing, which included arguments from the Veteran’s attorney. Specifically, the appellant’s attorney contended that the Veteran had numerous exposures to hepatitis C pathogens during military service to include exposure to and contact with blood during his military occupational specialty as a medic. He also contended that the disease could be due to tattoos obtained during military service or intravenous drug use. The Board has carefully considered the record, with particular attention to the additional evidence received since the final September 2007 rating decision. After considering this additional evidence, the Board concludes that it is new and material warranting reopening of the claim of service connection for hepatitis C. In this regard, the previous claim was denied because there was no evidence that the Veteran’s hepatitis C was diagnosed during active service and there was no evidence the diagnosed disease was otherwise related to military service. Further, the claimed disability was not diagnosed to a compensable degree within one year of release from military service. As detailed herein, the evidence subsequent to the September 2007 rating decision includes lay statements which suggests that the Veteran’s hepatitis C is due to blood exposure during military service and tattoos obtained during active service. Such statements were no previously of record. The Board finds that this evidence, when presumed credible, relates to an unestablished fact necessary to substantiate the claim and would trigger VA’s duty to provide a medical examination to determine the etiology of the appellant’s hepatitis C. 38 C.F.R. § 3.159(c)(4) (2017); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Under these circumstances, the Board finds that new and material evidence has been presented. Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Accordingly, the Board finds that the Veteran’s previously denied claim of service connection for hepatitis C is reopened. 38 U.S.C. § 5108 (2014); 38 C.F.R. § 3.156 (2017). Although the record is sufficient to warrant reopening of the claim, it is not sufficient to allow the grant of the benefit sought. For reasons explained below, additional development is necessary before the Board may proceed with a decision on the merits. REASONS FOR REMAND 1. Entitlement to service connection for hepatitis C is remanded. The Veteran asserts that service connection for hepatitis is warranted. In testimony during the March 2018 Board videoconference hearing, the Veteran’s attorney asserted that the appellant had numerous hepatitis C pathogens. He noted that the Veteran was a medic during his military occupational service and often came into contact with blood. He also had had tattoos which could have caused the disease. Additionally, the appellant had had a history of intravenous drug abuse. The Veteran’s attorney noted that he was provided a VA examination at which time hepatitis C was assessed, however a medical opinion was not provided. The Board observes that the Veteran was provided a VA examination in February 2007. Hepatitis C was diagnosed, but as stated by the Veteran’s attorney, a medical opinion was not provided. Thus, it is insufficient to adjudicate the appellant’s service connection claim. In light of the hepatitis C pathogens identified by the Veteran’s attorney, the Board finds that a VA examination and etiological opinion must be obtained on remand. 2. Entitlement to service connection for a traumatic brain injury (TBI) is remanded. The Veteran asserts that service connection is warranted for a traumatic brain injury. He contends that the disability is due to an in-service motor vehicle accident. Service treatment records show that the appellant was involved in a motor vehicle accident in February 1982. He suffered an abrasion to the head but denied loss of consciousness. In testimony provided during the March 2018 Board videoconference hearing, the appellant reported that he has suffered dizziness and headaches since the in-service head injury. He denied being treated for the reported symptoms. However, he indicated that he “tried to deal with them on his own.” The Board observes that the Veteran has not been provided a VA examination in conjunction with his traumatic brain injury claim. However, as the evidence demonstrates that the Veteran was treated for an abrasion to the head following a motor vehicle accident during service, the Veteran reporting that he has continued to have symptoms since service; the Board finds that a VA examination should be provided on remand. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 3. Entitlement to an initial rating in excess of 20 percent for disc disease and new bone formation causing narrowing of the left exit foramina at L4-L5 with chronic low back pain with radiculopathy is remanded. In testimony provided during the March 2018 Board videoconference hearing, the Veteran’s representative reported that the Veteran’s lumbar spine disability had worsened since his last VA examination. It was noted that the Veteran had a MRI in August 2016 which showed a significant worsening of the appellant’s lumbar spine disability. The appellant also asserted that is disability had increased in severity. The Veteran was last examined for his service-connected lumbar spine disability in August 2011. The Board finds that based on the foregoing, an additional examination should be provided on remand to ascertain the severity of the Veteran’s service-connected lumbar disability. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown 6 Vet. App. 377 (1994). As detailed above, the appellant’s attorney reported that the Veteran had an MRI of his lumbar spine in August 2016. However, the most recent medical records are dated in October 2010. On remand, outstanding medical records must be obtained. 4. Entitlement to an initial rating in excess of 20 percent for right lumbar radiculopathy is remanded. In testimony provided during the March 2018 Board videoconference hearing, the appellant reported that he had flare-ups of radicular pain. He indicated that the pain radiated all the way to his toes. Such testimony suggests that the appellant’s right lumbar radiculopathy may have increased in severity since the most recent VA examination in August 2011. In this regard, at the time of the August 2011 VA examination, reflex and sensory examinations were normal. Additionally, symptoms of pain radiating into the toes was not reported. In light of the appellant’s current representations regarding his radicular symptoms, an additional VA examination must be provided on remand. Snuffer, supra. 5. Entitlement to an effective date prior to August 9, 2011 for the award of a separate compensable rating for right lumbar radiculopathy is remanded. The Veteran asserts that an effective date prior to August 9, 2011 is warranted for the award of a separate rating for his right lumbar radiculopathy. In testimony provided during the March 2018 Board videoconference hearing, the Veteran’s attorney contended that the effective date should be the date the appellant’s back injury occurred. While the Veteran’s attorney identified medical records noting radicular symptoms dating back to 2008, he did not provide a specific effective date. The Board observes that there is no evidence of record that can be construed as a formal or informal claim of service connection for right lumbar radiculopathy. Neither the appellant nor his attorney have asserted otherwise. Thus, the effective date is based on the date that entitlement arose. The Veteran was provided a VA spine examination in August 2011. At that time, he reported that he began receiving injections in the spine 5 years prior to the examination. However, the evidence of record does not reflect such treatment. The Board observes that records dated in September 2008 reveal chronic low back pain with radiculopathy. While sporadic VA treatment records dated from 2008 to 2010 are of record, such records primarily reflect treatment for the Veteran’s nonservice-connected psychiatric condition. Records noting additional treatment for the appellant’s lumbar spine disability and any associated disability, to include right lumbar radiculopathy have not been obtained. Thus, the Board finds that the earlier effective date claim must be remanded to obtain medical records that may be available for the period prior to August 9, 2011. 6. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities is remanded. The Board notes that the issue of entitlement to a TDIU has been raised by the record. In this regard, at the time of the March 2018 Board videoconference hearing, the Veteran indicated that he had not been able to work for eight years due to his back pain. A claim for a total rating based on individual unemployability, either expressly raised by the appellant or reasonably raised by the record, is not a separate “claim” for benefits, but rather, is part and parcel of the claim for an increased rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The RO has not yet considered this issue in the first instance. Id. Therefore, the AOJ should develop a claim for TDIU. The matters are REMANDED for the following action: 1. Provide all required notice in response to the TDIU claim, to include providing and requesting the Veteran to complete and return the appropriate form to claim entitlement to a TDIU. 2. Obtain outstanding VA and private medical records for the Veteran’s hepatitis C, traumatic brain injury, lumbar spine disability, and right lumbar radiculopathy. Specifically, records from 2006 to the present must be obtained. 3. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his hepatitis C. Access to records in the Veteran’s electronic claims file should be made available to the examiner for review in connection with his or her opinion. The examiner is to provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s hepatitis C was incurred in service or is otherwise causally related to his active service or any incident therein. The examiner should provide a rationale for all opinions rendered, including reference to the pertinent evidence of record. In rendering the requested opinion, the examiner must discuss the lay assertions of record regarding exposure to hepatitis C pathogens, to include exposure to blood as a medic during military service, tattoos, and intravenous drug use. 4. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his traumatic brain injury. Access to records in the Veteran’s electronic claims file should be made available to the examiner for review in connection with his or her opinion. The examiner should identify all residuals of a traumatic brain injury found on examination and diagnosed since February 2010. Thereafter, the examiner is to provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s traumatic brain injury was incurred in service or is otherwise causally related to his active service or any incident therein, to include the in-service motor vehicle accident. The examiner should provide a rationale for all opinions rendered, including reference to the pertinent evidence of record. In rendering the requested opinion, the examiner must discuss the Veteran’s assertion regarding continuity of symptoms since the in-service motor vehicle accident. 5. Schedule the Veteran for a VA examination to ascertain the current severity and manifestations of his service-connected lumbar spine disability and right lumbar radiculopathy. Access to records in the Veteran’s electronic claims file should be made available to the examiner for review. The examination report should include range of motion in degrees for the Veteran’s lumbar spine. The examiner should comment on any weakened movement, excess fatigability, incoordination, flare-ups, or pain. These determinations should be expressed in terms of the degree of additional range-of-motion loss due to weakened movement, excess fatigability, incoordination, flare-ups, or pain, if possible. If no flare-ups are reported, the examiner must still estimate the degree of functional loss due to those reported at the prior examinations. The Court has recently held that an inability to observe a flare-up is an insufficient basis to decline to estimate its functional effects. If the examiner cannot provide the above-requested opinion without resorting to speculation, he or she should state whether all procurable medical evidence had been considered, to specifically include the Veteran’s description as to the severity, frequency, duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of medical community or the limits of the examiner’s medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. The examiner should identify any evidence of neurological manifestations of the Veteran’s lumbar spine disability. The examiner should describe the impairment as mild, moderate, moderately severe, or severe incomplete paralysis, or complete paralysis. 6. The AOJ should consider whether the Veteran is entitled to TDIU under the provisions of 38 C.F.R. § 4.16, based on impairment attributable to his service-connected disabilities, in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009). In so doing, the AOJ may decide to pursue further development of the Veteran’s employment history or to obtain additional medical evidence or medical opinion, as is deemed necessary. 7. If the benefits sought on appeal are not granted, a supplemental statement of the case should be furnished to the Veteran and his representative and they should be afforded the requisite opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs