Citation Nr: 20003565 Decision Date: 01/16/20 Archive Date: 01/15/20 DOCKET NO. 17-26 925 DATE: January 16, 2020 ORDER 1. The appeal to reopen a claim of service connection for residuals for hepatitis is granted. 2. The appeal to reopen a claim of service connection for a left knee disability is granted. 3. The appeal to reopen a claim of service connection for a right knee disability is granted. REMANDED 4. Entitlement to service connection for residuals of hepatitis is remanded. 5. Entitlement to service connection for a left knee disability is remanded. 6. Entitlement to service connection for a right knee disability is remanded. 7. Entitlement to service connection for hypertension is remanded. 8. Entitlement to service connection for a heart disability is remanded. FINDINGS OF FACT 1. A July 2011 Board decision denied the Veteran reopening of a claim of service connection for residuals of hepatitis, finding that the new evidence did not show that he had any current residuals of his hepatitis treatment in service. 2. Evidence received since the July 2011 Board decision includes an October 2019 private medical opinion indicating that the Veteran has current residuals of hepatitis that include cirrhosis and liver cancer; relates to an unestablished fact necessary to substantiate the claim of service connection for residuals of hepatitis; and (considered with evidence previously of record) raises a reasonable possibility of substantiating such claim. 3. An unappealed May 2003 rating decision continued to deny the Veteran reopening a claim of service connection for a left knee disability and continued to deny service connection for a right knee disability, finding essentially the evidence did not show that such disabilities are shown to be etiologically related to his service and his knee complaints therein. 4. Evidence received since May 2003 tends to support that a bilateral knee disability was incurred during service and has continued since; relates to an unestablished fact necessary to substantiate claims of service connection for right and left knee disabilities; and together with evidence previously in the record raises a reasonable possibility of substantiating such claim. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the claim of service connection for residuals for hepatitis may be reopened. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. § 3.156. 2. 3. New and material evidence has been received, and the claims of service connection for left and right knee disabilities may be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from January 1978 to January 1981. These matters are before the Board of Veterans’ Appeals (Board) on appeal of September 2014, July 2015, and April 2017 Department of Veterans Affairs (VA) rating decisions. In October 2019, a videoconference hearing was held before the undersigned; a transcript is in the record. The appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). New and Material Evidence Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. §§ 7104, 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is received. 38 U.S.C. § 5108. “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). When determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). The United States Court of Appeals for Veterans Claims (CAVC) has held that the requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold requirement. The CAVC interpreted the language of 38 C.F.R. § 3.156 (a) and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding opening”. See Shade v. Shinseki, 24 Vet. App. 110 (2010). 1. The appeal to reopen a claim of service connection for residuals for hepatitis is granted. An unappealed July 2011 Board decision denied the Veteran reopening a claim of service connection for residuals for hepatitis, finding that essentially that such disability was not shown. That decision is final. 38 U.S.C. § 7104. New and material evidence to reopen the claim is required before it may be considered de novo. 38 U.S.C. §§ 5108, 7104. Because service connection for residuals of hepatitis was previously denied based on a finding that such disability was not shown, for evidence to pertain to an unestablished fact necessary to substantiate the claim and be new and material, it would have to be evidence received since the Board decision that tends to show that the Veteran has residuals of hepatitis (that may be related to his service). Evidence received since July 2011 includes an October 2019 statement by a private provider indicating the Veteran has cirrhosis and liver cancer as residuals of hepatitis contracted in service. Such evidence directly addresses an unestablished fact necessary to substantiate the claim; considering that the Veteran had hepatitis in service and the “low threshold” standard for reopening endorsed by the CAVC in Shade, it raises a reasonable possibility of substantiating the claim of service connection for hepatitis. Accordingly, the Board finds that the evidence received since the prior final Board decision is both new and material, and that the claim of service connection for residuals of hepatitis may be reopened. 2. 3. The appeals to reopen claims of service connection for left and right knee disabilities are granted. Some discussion of the procedural and medical history in this case is deemed necessary. A November 1984 Board decision denied service connection for a bilateral knee disability, finding that such disability was not shown. Thereafter, a May 2003 rating decision continued the denial of service connection for both knees, finding that there was no new and material evidence to reopen the claims and that such disabilities were not related to service. He did not appeal the May 2003 rating decision or submit new and material evidence within the following year, and it, in turn, became final. 38 U.S.C. § 7105. For evidence to relate to an unestablished fact necessary to substantiate the claims, and be new and material, it would have to be evidence received since the May 2003 rating decision that tends to show the Veteran’s left and right knee disabilities are etiologically related to his service. Evidence added to the record since May 2003 includes a report of an October 1984 quadrennial Reserves examination, which noted minor range of motion limitations (suggesting a musculoskeletal disability) and that he had had bilateral knee pain since 1980. There was no opinion addressing the etiology of any existing bilateral knee disability prior to the claims being denied in unappealed rating decisions in September 1993, March 1998, and May 2003. More recently, an October 2019 statement by a private provider indicates that the Veteran continues to experience bilateral knee pain which he treats with analgesics. Such evidence directly addresses a basis for the prior denial of these claims; pertains to an unestablished fact necessary to substantiate the claims; and, considering the knee complaints in service and the “low threshold” standard for reopening endorsed by the CAVC in Shade, raises a reasonable possibility of substantiating the claims. Accordingly, the Board finds that the evidence received since the May 2003 rating decision is new and material and the claims of service connection for left and right knee disabilities may be reopened. REASONS FOR REMAND 4. Entitlement to service connection for residuals of hepatitis. While the new evidence received is sufficient to reopen this claim, it is insufficient to grant the benefit on de novo review; the Board finds that further development is needed for VA to fulfil its duty to assist the Veteran in the development of evidence to substantiate this claim. His STRs show he was treated for an unspecified type of viral hepatitis. In the October 2019 statement, a private provider states the Veteran “apparently has developed hepatocellular carcinoma (HCC) as his hepatitis had progressed to cirrhosis and then to cancer.” The opinion does not include adequate rationale. At the October 2019 hearing, the Veteran testified he has received VA treatment for this disability. The most recent VA treatment records in the file are from June 2018; thus, updated treatment records (which are constructively of record and may contain pertinent information) are outstanding, and must be secured. Additionally, a March 2018 VA treatment record notes an ultrasound of the liver did not show any concerning lesions; there was mild to moderate inflammation in the liver but not cirrhosis. The Veteran has not been afforded a VA examination to determine the nature and etiology of the Veteran’s current liver disabilities (reported to include HCC and cirrhosis), to include whether they are residuals of his hepatitis in service. Considering his contentions and the state of the evidence of record, an examination to secure an advisory medical opinion in this matter in necessary. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 5. 6. Entitlement to service connection for right and left knee disabilities. The Veteran contends he has current left and right knee disabilities that are due to knee injuries in service. His service treatment records (STRs) show he was seen multiple times in service for knee complaints. On October 1980 service separation examination, the lower extremities were normal on clinical examination. In an October 1980 report of medical history, he reported he was in fair health “due to trouble with his knees”, endorsed having cramps in his legs, and denied ever having a trick or locked knee. On July 1983 VA examination, diagnostic testing found no osseous, joint, or soft tissue abnormality; a right or left knee disability was not diagnosed. In an August 1984 report of medical history, it was noted that the Veteran had a history of joint problems (chronic tendonitis), but had little to no decreased range of motion. On August 1984 quadrennial Reserves examination, the provider noted in the summary of defects that “No significant (only minor ROM limitation) problem noted.” A handwritten note (with a stamp dated September 24, 1984) states the physician did not identify the nature of the joint problem or which joint was involved. In an October 1984 report of medical history, the Veteran endorsed having a trick or locked knee; it was noted the Veteran had knee pain, all the time since 1980 in the right knee and occasionally in the left knee. There was no medical opinion regarding the etiology of any existing knee disability. On August 2015 VA examination, the examiner opined that the Veteran did not have a recognized [knee] problem while in service but also stated that he had several possible diagnoses associated with his knee complaints in service. The opinion is inconsistent and also does not address the postservice service examination notations concerning potential ongoing knee disabilities. The October 2019 private opinion states (without rationale) that the Veteran current knee condition is at least as likely as not manifested in service and has continued since. As the record does not include an adequate examination and opinion regarding the nature and etiology of the Veteran’s knee disabilities, another orthopedic examination to obtain a fully adequate medical opinion regarding the nature and likely etiology of his knee disabilities is necessary. 6. 7. Entitlement to service connection for hypertension and a heart disability. The Veteran alleges hypertension and a heart disability manifested between 1988 and 1990 when he was called up from the Reserves to be deployed to Saudi Arabia. He alleges that hypertension and an irregular heart beat were diagnosed, examination and he was discharged when he could not pass the medical examination. His service personnel records show he was discharged from the United States Army Reserves on May 16, 1988. Further (exhaustive) development to locate and secure complete medical records from his Reserve service is necessary. In June 2015 and January 2019, the Board remanded an issue of nonservice-connected pension to seek verification of the Veteran’s claimed service from 1990 to 1991. A September 2018 VA memorandum found he had no active military service from January 1, 1990 through December 31, 1991 and a January 2016 Memorandum Agreement shows that the Department of the Army has delegated verification of his service to the NPRC. The matters are REMANDED for the following: 1. Arrange for exhaustive development to locate, and secure for the record, any of the Veteran’s outstanding STRs (specifically relating to any medical examination he was afforded prior to his discharge from the Reserves). He should be asked to submit any STRs in his possession (if he does not submit any, the assumption being that he has none). The search should encompass all storage facilities where such records may have been retired (and any facilities where the records may have been transported for scanning into his electronic file). If any records are unavailable because they have been irretrievably lost or destroyed, it should be so certified (with the scope of the search described in detail), and the Veteran should be so notified. Secure for the record updated (to the present, all outstanding) complete clinical records of VA evaluations and treatment the Veteran has received for the disabilities on appeal. 2. Then, arrange for the Veteran to be examined by an appropriate clinician to determine whether he has any current disability that is a residual of the hepatitis for which he was treated in service. The Veteran’s record (in particular the October 2019 private provider’s statement) must be reviewed by the examiner, and any tests or studies indicated should be completed. The examiner should: (a.) Identify (by diagnosis) all liver disability (pathology/disease) found or shown by the record. Specifically, confirm the private provider’s diagnoses of cirrhosis and liver cancer and identify any other liver disability found or shown. (b.) Identify the likely etiology for each current liver disability diagnosed. Is it at least as likely as not (a 50 percent or greater probability) that the diagnosed disability was incurred in service/is a progression of the hepatitis treated therein? All opinions must include rationale. The rationale must include comment on (expression of agreement or disagreement with) the opinion by the October 2019 provider. If an opinion sought cannot be provided without resort to speculation, the examiner should so indicate, explaining WHY that is so (e.g., whether an opinion is beyond what any medical practitioner might be able to provide, based on the evidence of record and current medical knowledge). 3. Also arrange for an orthopedic examination of the Veteran to determine the nature and likely etiology of his left and right knee disabilities. The Veteran’s record must be reviewed by the examiner. The examiner should: (a.) Identify (by diagnosis) each left and right knee disability entity found. (b.) Identify the likely etiology for each left and right knee disability diagnosed. Specifically, is it at least as likely as not (a 50% or greater probability) that it is related directly to the Veteran’s service/was incurred therein (to include as due to complaints therein). (c.) If a diagnosed left knee or right knee disability is determined to be unrelated to service, identify the etiology considered to be more likely (and explain why that is so). All opinions must include rationale, to include comment on (expression of agreement or disagreement with) the October 2019 opinion by a private provider. 4. Arrange for any further development indicated in the matters of service connection for hypertension and a heart disability (e.g. an advisory medical opinion if any Reserve medical records received pursuant to the development sought above show or suggest such disabilities were incurred in service or were manifested to a compensable degree within a year following separation from service). GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Naumovich, Associate Counsel 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.