Citation Nr: 19190732 Decision Date: 12/03/19 Archive Date: 12/03/19 DOCKET NO. 14-35 322A DATE: December 3, 2019 ORDER Whether new and material evidence has been submitted sufficient to reopen the claim for entitlement to service connection for Hepatitis C is granted. REMANDED Entitlement to service connection for Hepatitis C is remanded. Entitlement to a compensable rating for erectile dysfunction is remanded. FINDING OF FACT 1. The claim for service connection for Hepatitis C was denied in a July 2006 rating decision that was not appealed. 2. The evidence received since the July 2006 rating decisions includes evidence that is not cumulative or redundant of the evidence previously of record and is sufficient, when considered by itself or with previous evidence of record, to raise a reasonable possibility of substantiating the claims for service connection for Hepatitis C. CONCLUSION OF LAW 1. As new and material evidence has been received since the issuance of the aforementioned final decisions, the criteria for reopening the claims for service connection for Hepatitis C is met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1969 to September 1974. This matter comes before the Board from an October 2011 rating decision. The Veteran appeared before the undersigned Veterans Law Judge at a Board hearing in October 2016. The transcript is in the record. 1. Whether new and material evidence has been submitted sufficient to reopen the claim for entitlement to service connection for Hepatitis C Generally, a claim that has been denied in an unappealed Board or rating decision may not thereafter be reopened and allowed. 38 C.F.R. §§ 20.1100, 20.1103. The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of the AOJ’s actions, the Board has a legal duty under 38 U.S.C. § 5108 to address the question of whether new and material evidence has been received to reopen the claim for service connection. This matter goes to the Board’s jurisdiction to reach the underlying claim and adjudicate the claim on a de novo basis. See Barnett v. Brown, 83 F. 3d 1380, 1383 (Fed. Cir. 1996). The regulation does not require new and material evidence as to each previously unproven element of a claim and creates a low threshold for reopening claims. 38 C.F.R. § 3.156 (a); Shade v. Shinseki, 24 Vet. App. 110 (2010). In a July 2006 rating decision, the RO denied the Veteran’s claim of entitlement to service connection for his claim Hepatitis C on the basis of no nexus. The Veteran was notified of this decision and his appellate rights in July 2006 and submitted a timely notice of disagreement in August 2006. However, in correspondence received in November 2009, the Veteran withdrew the claim for service connection for Hepatitis C. The July 2006 rating decision became final. At the time of the July 2006 rating decision evidence associated with the record included service treatment records (STRs), personnel records, VA medical records, and lay statements. However, there was no nexus correlating the Veteran’s Hepatitis C with an in-service event. Since the July 2006 rating decision, additional evidence has been associated with the record, including an August 2014 VA examination and testimony at an October 2016 Board hearing. The August 2014 VA examination opined that the Veteran’s Hepatitis C is likely related to getting a tattoo from a non-professional tattoo artist and drug abuse. At the October 2016 Board hearing the Veteran testified that he abused drugs in-service and after and his drug use is related to his post-traumatic stress disorder. Additionally, the Veteran testified that in-service he had unprotected sex in service that led to venereal disease symptoms. The aforementioned evidence is new in that is has not previously been reviewed. The Board finds that evidence is also material. Based on a review of the new evidence, the Board finds that the new and material evidence criteria under 38 C.F.R. § 3.156 (a) have been satisfied, and the claims for service connection for Hepatitis C are reopened. REASONS FOR REMAND 1. Entitlement to service connection for Hepatitis C The Veteran contends that his currently diagnosed Hepatitis C is related to his military service. He cites to several experiences (risk factors) in service that he believes caused him to contract Hepatitis C. Specifically, he identifies performing mouth to mouth resuscitation and getting blood in his mouth, engaging in unprotected sex leading to venereal disease, and drug use related to his service-connected post-traumatic stress disorder (PTSD). An August 2014 VA examination concluded that it was less likely that the Veteran’s hepatitis C was due his receiving a gunshot wound to the calf in service due to the fact that he did not require a transfusion. That examiner suggested that the more likely cause was the Veteran’s use of drugs but expressed some reservations. A VA expert opinion opined in July 2019 that determined that it was less likely that the Veteran’s hepatitis C was contracted as a resulted of performing mouth to mouth resuscitation and getting blood in his mouth or engaging in unprotected sex leading to venereal disease when compared to his use of non-injecting drugs. A July 2010 VA examination briefly addressed the Veteran’s drug use and his PTSD, but did not proffer an opinion as to whether the Veteran self-medicated the symptoms of his PTSD through drug use, to include drug use which may have exposed the Veteran to Hepatitis C. While service connection for drug abuse is barred on a direct basis, the law does allow for service connection to established on a secondary basis. Such could then serve as a mechanism for creating a basis for service connection for hepatitis C. In view of the foregoing, an VA examination is warranted to fully address the Veteran’s contention that his drug use was to treat his PTSD symptopms and that this exposed him to Hepatitis C. Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). 2. Entitlement to a compensable rating for erectile dysfunction The Veteran contends that he is entitled to a compensable rating for his service-connected erectile dysfunction because he has compensable penile deformity. It is noted that the Veteran is in receipt of special monthly compensation based on loss of use of a creative organ based on permanent loss of erectile power. The Veteran testified before the decision review officer (DRO) and at the Board hearing that he has deformity of the penis that merits compensation. He stated that he had been diagnosed as having Peyronie’s disease (an abnormal curvature of the penis), and that a physician had related it to his erectile dysfunction and/or diabetes mellitus. When he was last examined in August 2014, the examiner indicated that a physical examination of the penis was not conducted. A remand is required to obtain a new examination which examines the full extent and severity of the Veteran’s service-connected erectile dysfunction. Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s hepatitic C. Specifically, the examiner must provide an opinion as to whether it is as likely as not that the Veteran’s hepatitis C was caused or aggravated by his now service connected PTSD or symptoms related thereto. In rendering this opinion, the VA examiner must specifically comment on the Veteran’s previous drug use as a means of self-medicating for his PTSD. Rationale must be provided for any opinion provided. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected erectile dysfunction. 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 specify as to whether the Veteran has a deformity of the penis; and, if so, the relationship of that deformity to the Veteran’s service connected disabilities, e.g. diabetes mellitus. If any deformity of the penis is not due to the Veteran’s service connected disabilities, such be clearly stated with supporting rationale. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals 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.