Citation Nr: 19194673 Decision Date: 12/17/19 Archive Date: 12/17/19 DOCKET NO. 17-59 220 DATE: December 17, 2019 ORDER New and material evidence having been received, the application to reopen the claim of service connection for hepatitis C or infectious hepatitis is granted. REMANDED Entitlement to service connection for hepatitis, including hepatitis C or infectious hepatitis, is remanded. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. Service connection for hepatitis C was last denied by the Regional Office (RO) in a July 2015 rating action. The Veteran was notified of this action and of his appellate rights, but did not file a timely appeal. 2. Since the July 2015 decision denying service connection for hepatitis C, the additional evidence, not previously considered, relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW The additional evidence submitted subsequent to the July 2015 decision of the RO, which last denied service connection for hepatitis C, is new and material; thus, the claim for service connection for this disability is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from March 1968 to April 1971. In August 2019, a video conference board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran’s claims file. Regarding the claim for TDIU, as will be discussed in greater detail below, the evidence in this case raises the question of whether the Veteran is unemployable as a result of his PTSD. The Board thus finds that entitlement to a TDIU has been raised by the record and has re-characterized the issue on appeal to include entitlement to a TDIU. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Whether new and material evidence has been received to reopen the claim of service connection for hepatitis C or infectious hepatitis Service connection for infectious hepatitis was first denied by the RO in an April 1994 rating decision. The Veteran applied to reopen this claim on several occasions, including in July 2015. The Veteran did not submit a timely appeal to any of these determinations. The last decision denial on any basis is to be finalized Evans v. Brown 9 Vet. App. 273 (1996). In such cases, it must first be determined whether or not new and material evidence has been received such that the claim may now be reopened. 38 U.S.C. §§ 5108, 7105; Manio v. Derwinski, 1 Vet. App. 140 (1991). A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. 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). Evidence of record prior to the July 2015 decision included the Veteran’s service treatment records (STRs), which show he was treated for hepatitis in April 1969; and postservice treatment records, which show he was hospitalized in August 1995 at which time there was no diagnosis of hepatitis, but some liver function studies were elevated and stated to be an indicator of an alcoholic past. In February 2001 a VA evaluation noted that the Veteran had tested negative for hepatitis C in 1995 and 1997, but did have a positive antibody to hepatitis B surface antigen and core antigen in 1997. The diagnosis was status post hepatitis A and B infection, asymptomatic, with normal liver function tests. The July 2015 rating decision confirmed and continued the denial of service connection for hepatitis C on the basis that the disorder had not been manifested. Evidence received subsequent to the July 2015 rating decision includes a February 2016 VA examination report. At that time, the diagnosis was hepatitis C that began in April 1969. For the purpose of determining whether evidence is new and material to reopen a claim, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board finds the February 2016 VA examination constitutes new and material evidence such that the claim may be reopened. To this extent, the appeal is allowed. REASONS FOR REMAND Entitlement to service connection for hepatitis, including hepatitis C and infectious hepatitis, is remanded. Having decided that the claim is reopened the Board must now consider all the evidence on file. Review of the record shows that the VA examination that provided a basis for the reopening of the claim may have been based on the Veteran’s unsubstantiated history of hepatitis C. As such, it is insufficient for rating purposes. The record also shows that the Veteran was treated for hepatitis in service and may have residuals of this infection. Thus another, more comprehensive examination is warranted. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Entitlement to a rating in excess of 50 percent for PTSD is remanded. Although the Veteran was most recently provided a VA examination for his PTSD in September 2018, VA outpatient treatment records as well as the Veteran’s testimony at the August 2019 Board hearing show that since then he has been undergoing anger management therapy for symptoms associated with his PTSD. During the hearing, his representative asserted that the need for anger management therapy indicated a worsening of the Veteran’s PTSD symptoms. Under these circumstances, an additional examination to ascertain the extent of the disability is warranted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Entitlement to a TDIU is remanded. Consideration of entitlement to a TDIU is dependent upon the impact of the Veteran’s service-connected disabilities on his ability to obtain or retain substantially gainful employment. Accordingly, the matter of a TDIU is inextricably intertwined with the Veteran’s increased rating claim remanded herein. Harris v. Derwinski, 1 Vet. App. 180 (1991). Remand of the inextricably intertwined TDIU claim is, thus, also required. The matters are REMANDED for the following actions: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any hepatitis or residuals of hepatitis. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including hepatitis diagnosed while the Veteran was on active duty. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected PTSD. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to PTSD alone. 3. Complete any appropriate notice requirements for the claim for TDIU, undertake any additional development (if deemed necessary), and adjudicate the claim of entitlement to TDIU. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joseph P. Gervasio The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.