Citation Nr: 20008489 Decision Date: 01/31/20 Archive Date: 01/31/20 DOCKET NO. 16-13 581 DATE: January 31, 2020 ORDER New and material evidence having been received, the previously denied claim of entitlement to service connection for Hepatitis C is reopened. Entitlement to service connection for an acquired psychiatric disorder, diagnosed as posttraumatic stress disorder (PTSD), is granted. REMANDED Entitlement to service connection for Hepatitis C is remanded. FINDINGS OF FACT 1. A March 2010 rating decision, inter alia, denied service connection for Hepatitis C. The Veteran was duly notified of the decision and his appellate rights, but did not appeal, nor was new and material evidence received within the applicable period. 2. Evidence received since the final March 2010 rating decision denying service connection for Hepatitis C relates to an unestablished fact necessary to substantiate the claims and, presuming its credibility, raises a reasonable possibility of substantiating the claim. 3. The evidence is in relative equipoise as to whether the Veteran’s current psychiatric disability, diagnosed as PTSD, was causally related to his active service. CONCLUSIONS OF LAW 1. The March 2010 rating decision denying service connection for Hepatitis C is final. 38 U.S.C. § 7105(c) (2006); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2009). 2. New and material evidence has been received to warrant reopening of the previously denied claim of service connection for Hepatitis C. 38 U.S.C. §§ 5107, 5108 (2018); 38 C.F.R. § 3.156 (2019). 3. The criteria for entitlement to service connection for PTSD have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304, 4.125. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from July 1969 to July 1971, including service in the Republic of Vietnam. He died in December 2016. The appellant is his surviving spouse and has been substituted as the claimant. This matter comes before the Board of Veterans’ Appeals (Board) from an August 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which, inter alia, denied service connection for PTSD and denied the application to reopen the previously denied claim of service connection for hepatitis C. The appellant filed a timely Notice of Disagreement (NOD), received in August 2014. A Statement of the Case (SOC) was issued in March 2016. A timely substantive appeal was received in March 2016. The appellant was afforded a hearing by videoconference before the undersigned in July 2019. A transcript is of record. New and Material Evidence In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. See 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. 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. For claims such as this one, filed on or after August 29, 2001, 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. 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) (in determining whether evidence is new and material, the credibility of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). 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; but see Villalobos v. Principi, 3 Vet. App. 450 (1992) (evidence that is unfavorable to a claimant is not new and material). A March 2010 rating decision, inter alia, denied service connection for Hepatitis C because there was no nexus between a current disability and an in-service event, injury, or disease. The Veteran was duly notified of the decision and his appellate rights in March 2010, but did not appeal, nor was new and material evidence received within the applicable period. Thus, the decision is final and not subject to revision on the same factual basis. 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; 38 C.F.R. § 3.156. The Board has therefore reviewed the entire record, with particular attention to the additional evidence received since the last final rating decision in March 2010. The additional evidence received since the final March 2010 rating decision includes statements from the Veteran, the appellant, the representative, and additional medical records. In May 2016 written arguments, the Veteran’s then-representative referenced June 1986 findings of the Center for Disease Control (CDC) that there was a high correlation between auto gun injectors and hepatitis infection as well as a January 1988 strong recommendation of the Department of Defense (DoD) Epidemiology Board that these injectors not be used due to the risk of blood-borne disorders. Finally, he referenced a June 2004 VA Fast Letter which stated that it was biologically plausible for hepatitis C to be transmitted via air gun injections. This evidence is new, as the evidence of record at the time of the last final decision did not include evidence that there was a correlation between auto gun injectors and hepatitis infection, and a DoD recommendation that such not be used. Further, this additional evidence, when presumed credible, relates to an unestablished fact necessary to substantiate the claim and triggers VA’s duty to provide a medical examination or obtain a medical opinion. 38 C.F.R. § 3.159 (c)(4); 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 previously denied claim of service connection for Hepatitis C is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Although the record is sufficient to warrant reopening of the claim, it is not sufficient to allow the grant of the benefits sought. Once a claim is reopened, the statutory duty to assist is triggered. See 38 U.S.C. § 5103. For reasons explained below, additional development is necessary before the Board may proceed with a decision on the merits. Service Connection PTSD The Board finds that the evidence is in relative equipoise as to whether the Veteran had a diagnosis of PTSD based on a corroborated in-service stressor under DSM-IV and DSM-5 criteria. As noted supra, the Veteran served in the Republic of Vietnam. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). VA amended 38 C.F.R. § 4.125(a) to indicate that a diagnosis of a mental disorder, to include PTSD, must conform to the standards set in the Diagnostic and Statistical Manual of Mental Disorders, 5th edition (DSM-5). See 38 C.F.R. § 4.125; 79 Fed. Reg. 45,093, 45,094-096 (Aug. 4, 2014); 80 Fed. Reg. 14,308 (Mar. 19, 2015) (final) (providing that for claims that were initially certified for appeal to the Board, the Court of Appeals for Veterans Claims (CAVC), or the U.S. Court of Appeals for the Federal Circuit prior to August 4, 2014, DSM-IV will apply. For all applications for benefits received by VA or pending before the AOJ on or after August 4, 2014, DSM-5 will apply). As this matter was first certified to the Board in May 2016, DSM-5 applies. The Veteran’s June 1971 separation examination was essentially normal. Psychiatric examination was normal. On his June 1971 Report of Medical History, the Veteran endorsed depression or excessive worry and nervous trouble. It was noted that he was in the process of divorcing his then-wife. Service treatment records are otherwise negative for pertinent complaints or observations regarding a psychiatric disability. The Veteran was afforded a VA psychiatric examination in July 2013. The claims file was reviewed. Following examination, the VA examiner stated that the Veteran did not have a diagnosis of PTSD, or any other acquired psychiatric disorder, based upon DSM-IV criteria. The Veteran reported three in-service stressors. The first was an ambush during which three of his friends were wounded and he had to carry them to safety. Part of their sergeant’s face was gone and his body was filled with shrapnel. The Veteran found his little finger when cleaning the tank the next day. Second, the Veteran reported that he had to remove the boots of a wounded soldier with shrapnel in his legs. Third, the Veteran reported that every night mortars, rockets, and machine guns would be fired by the enemy and tanks would be driven. The Veteran was scared and always slept with his M-16. The VA examiner noted that all three reported stressors met Criterion A, in that each would be adequate to support a diagnosis of PTSD, and that each was related to the Veteran’s fear of hostile military or terrorist activity. The VA examiner indicated that the Veteran met Criteria B and D, but did not fully meet Criterion C. In his August 2014 NOD, the Veteran reported that he experiences nightmares about his in-service stressors. In his March 2016 substantive appeal, the Veteran expressed displeasure with the July 2013 VA examination as the examiner did not appear to understand what he was talking about, and interrupted him several times. The Veteran reported that he did not like to be around large numbers of people, including family, he is suspicious of others, he has trouble sleeping, and he has short-term memory loss. During the July 2019 Board hearing, the appellant testified that, when she first began dating the Veteran, she observed that he never wanted to discuss his military service. He always had to have his back to a wall and had to know where all the exits were when they went out. The appellant described the Veteran as paranoid and recalled that he did not like to be in crowds, even if all were family members. The Veteran refused to attend funerals. He would suddenly get angry over nothing, including when the appellant did his laundry for him. The appellant observed that the Veteran experienced long bouts of sadness, during which he would not leave the house or get out of his pajamas. The Veteran would experience interrupted sleep and flailed around while during nightmares; and he kept a gun under his mattress. The Veteran also exhibited exaggerated startle response following noises and would check locks multiple times. The appellant’s representative expressed displeasure with the VA examiner’s apparent oversight of the Veteran’s complaints of depression and anxiety in his service treatment records. A private medical opinion from a psychologist was received in October 2019. As the Veteran was unfortunately deceased by this time, the psychologist performed a thorough review of the claims file and interviewed the appellant. The private psychologist opined that the Veteran met full criteria for a diagnosis of PTSD under both DSM-IV and DSM-5 criteria. The psychologist observed that the VA examiner determined that the Veteran’s stressors met Criterion A with respect to exposure to traumatic events while serving in Vietnam and he experienced recurrent and distressing recollections and dreams, which met Criterion B. The VA examiner also opined that the Veteran met Criterion D. Although the VA examiner stated that the Veteran did not meet Criterion C as he only practices avoidance, the private psychologist noted that the evidence of record, including the appellant’s testimony, established that the Veteran also was detached and estranged from others, had a sense of a foreshortened future, and practiced avoidance. The private psychologist also observed that the Veteran endorsed depression and excessive worry at the time of his June 1971 separation examination. Thus, the private psychologist opined that the Veteran met all criteria for a diagnosis of PTSD under both DSM-IV and DSM-5 criteria, based upon a confirmed in-service stressor related to hostile military or terrorist activity. The Board affords minimal probative weight to the determination of the July 2013 VA examiner that the Veteran did not fully meet Criterion C with respect to PTSD. The Veteran and the appellant consistently reported that the Veteran was detached and estranged from others, had a sense of a foreshortened future, and practiced avoidance. Moreover, having had the appellant’s demeanor at a hearing, and absent anything in the record that would impugn the appellant’s credibility on the matter, the Board finds her credible in that regard. Further, the July 2013 VA examiner used DSM-IV criteria, and, as noted supra, DSM-5 applies to this claim. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Conversely, the Board affords greater probative weight to the opinion of the October 2019 private examiner, because such is based on a review of the claims file, consideration of the relevant medical history, and the opinion was accompanied by a detailed rationale and is consistent with the evidence of record. Id. As set forth above, under the benefit-of-the-doubt rule, for the appellant to prevail, there need not be a preponderance of the evidence in his favor, but only an approximate balance of the positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for the benefit to be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Given the evidence set forth above, such a conclusion certainly cannot be made in this case. Under these circumstances, the record is sufficient to award service connection for PTSD. REASONS FOR REMAND The Board finds that a medical opinion should be obtained as to the nature and etiology of the Veteran’s Hepatitis C. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matter is REMANDED for the following action: Obtain a medical opinion from an appropriate clinician as to the nature and etiology of the now-deceased Veteran’s Hepatitis C. The claims file must be made available to the examiner rendering the requested opinion. After reviewing the claims file, the clinician should opine as to the following: Is it at least as likely as not that the Veteran’s Hepatitis C had its onset in service or is otherwise related to the appellant’s active service, to include (a) inoculations by air gun, during which the Veteran observed blood of another soldier on the air gun get onto his arm, and (b) exposure to comrades’ blood while the Veteran tended to the wounded? In providing the requested opinions, the clinician should review the relevant evidence of record, to include (a) the February 2010 VA examination report which diagnoses Hepatitis C and states that the Veteran’s tattoo and multiple sex partners were of low risk for development of Hepatitis C; (b) the Veteran’s March 2013 statement, where he reported receiving received multiple inoculations with an air gun in December 1969 which was not cleaned or sterilized between uses, with one soldier a few places in line ahead of him bleeding after his inoculations and his blood was still on the gun when it was the Veteran’s turn and some came off onto his arm; and the Veteran’s reports of getting the blood of other soldiers on him while administering first aid to the wounded; (c) the representative’s May 2016 statement that the Center for Disease Control (CDC) found a high correlation between auto gun injectors and hepatitis infection in June 1986, the Department of Defense (DoD) Epidemiology Board strongly recommended these injectors not be used due to the risk of blood-borne disorders in January 1988, and a June 2004 VA Fast Letter was referenced, which stated that it was biologically plausible for hepatitis C to be transmitted via air gun injections; and (d) the appellant’s July 2019 hearing testimony that the Veteran was not an intravenous drug user and had not undergone a blood transfusion. The examiner is informed that the Veteran was, and the appellant is, competent to report symptoms and observations. If there is a medical reason to doubt the history as reported, the examiner should so state. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Behlen, 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.