Citation Nr: 20011368 Decision Date: 02/11/20 Archive Date: 02/11/20 DOCKET NO. 14-10 057 DATE: February 11, 2020 ORDER A June 2010 rating decision contained clear and unmistakable error in requiring new and material evidence to reopen a claim of entitlement to service connection for a low back disability. A June 2010 rating decision contained clear and unmistakable error in declining to reopen a claim of entitlement to service connection for hepatitis C. Service connection for a low back disability secondary to a left leg disability is granted. Service connection for hepatitis C is granted. A total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. New and material evidence was received within one year of a February 2003 rating decision that denied service connection for a low back disability, and that decision did not become final. 2. There was clear and unmistakable error in a June 2010 rating decision that required new and material evidence to reopen a claim of entitlement to service connection for a low back disability secondary to a left femur disability; the Veteran’s low back disability is secondary to his service-connected left femur disability 3. There was clear and unmistakable error in a June 2010 rating decision that found new and material evidence had not been submitted to reopen a claim of entitlement to service connection for hepatitis C; hepatitis C was incurred during service. 4. The Veteran is unable to obtain or maintain gainful employment due to service-connected disabilities. CONCLUSIONS OF LAW 1. The June 2010 rating decision that required new and material evidence to reopen the Veteran’s claim of entitlement to service connection for a low back disability was clearly and unmistakably erroneous, and the criteria for service connection for a low back disability are met. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.105, 3.303, 3.310. 2. The June 2010 rating decision that declined to reopen and grant the Veteran’s claim of entitlement to service connection for hepatitis C was clearly and unmistakably erroneous, and the criteria for service connection for hepatitis C are met. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.105, 3.303. 3. The criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1986 to March 1990. This matter is before the Board following his appeal of a May 2009 rating decision. In July 2016, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The Board then remanded the appeal in September 2016 for additional development. 1. CUE – Low Back and Hepatitis Disabilities As an initial matter, the Board finds that in order to properly address the TDIU appeal currently before it, it must first address clear and unmistakable errors (CUE) in prior rating decisions related to service connection claims for a low back disability and hepatitis C, as both of those disabilities affect the Veteran’s ability to obtain and maintain substantially gainful employment. Pursuant to 38 U.S.C. § 5109A, “[r]eview to determine whether [CUE] exists in a case may be instituted by the Secretary on the Secretary’s own motion or upon request of the claimant.” See also 38 C.F.R. § 3.105. The Board finds persuasive Brent v. McDonald, 2015 U.S. App. Vet. Claims Lexis 1401 (Oct. 19, 2015), a non-precedential decision in which the Court of Appeals for Veterans Claims affirmed the Board when it referred RO CUE on its own motion. The Court has held that the Board does not lack jurisdiction over issues that were not explicitly discussed by the RO if the issues are related to the matter on appeal; rather, “[o]nce the Board has jurisdiction over a claim,... it has the authority to address all issues related to that claim, even those not previously decided by the RO.” Jarrell v. Nicholson, 20 Vet. App. 326, 332 (2006) (en banc); see also Bernard v. Brown, 4 Vet. App. 384 (1993) (addressing whether it was appropriate to address, for the first time, de novo entitlement to service connection after finding that new and material evidence had been submitted to reopen a previously denied claim for service connection). However, in Jarrell, Id., it was held that “[t]o exercise this authority with regard to questions or issues not previously addressed by the RO, the Board must secure a waiver from a claimant or otherwise determine that there would be no prejudice to the claimant by proceeding to adjudicate the question or issue.” Jarrell, Id. at 332. Here, the Board finds that there is no prejudice to the Veteran by adjudicating the issue of clear and unmistakable error in prior rating decisions, as the Veteran is being granted additional benefits by the Board’s actions, as discussed further below. A. Low Back Disability First, regarding the Veteran’s low back disability, the Board finds that, in issuing a June 2010 rating decision, it was CUE for the RO to treat as final a February 2003 rating decision that initially denied service connection for a low back disability on a secondary basis, and to require new and material evidence to reopen that claim. In that regard, the February 2003 rating decision denied service connection for the low back based on a December 2002 VA opinion in which the examiner concluded that the Veteran’s low back disability was not related to his service-connected left femur disability or service. While the Veteran did not appeal that decision, new and material evidence was constructively received within one year such that the finality of the February 2003 decision was abated. 38 C.F.R. § 3.156(b). Specifically, VA treatment records that were in VA’s constructive possession within a year of the February 2003 rating decision support a nexus between the Veteran’s service-connected left femur disability and his low back issues. For example, a May 2003 VA treatment record noted that the Veteran had low back pain of “a fairly chronic nature since leg fracture and rod placement…” and that he “was told he had a short leg, which was contributing to his back pain.” At that time, musculoskeletal dysfunction of the low back was assessed, and an orthopedic consultation was recommended to “re-evaluate the previous fracture area and mechanical disruption.” Thereafter, a January 2004 VA treatment note referenced the Veteran’s left femur fracture and pin placement, and included an assessment of chronic low back pain “likely secondary to mechanical causes from previous left-sided injury.” In February 2004, compensatory patterns in the pelvis were observed and, in March 2004, it was noted that a private examiner in 2002 gave thought to short leg syndrome with back tilt. Given that evidence probative of a link between the Veteran’s left femur disability and his low back was in VA’s constructive possession within a year of the February 2003 rating decision, the Board finds that the February 2003 rating decision did not become final, and the Veteran’s initial claim of entitlement to service connection for a low back disability remained pending. As such, the receipt of new and material evidence was not necessary to readjudicate the low back claim on the merits in June 2010. By imposing such requirements on the Veteran, the June 2010 rating was clearly and unmistakably erroneous. Moreover, given the evidence discussed above, the Board finds that, at the time of the June 2010 rating decision, service connection for a low back disability was warranted as secondary to the service-connected left femur disability. As discussed, the clinical evidence showed the Veteran to have low back problems as a result of his left femur disability, which resulted in a leg length discrepancy (or short leg syndrome), “mechanical disruption” or mechanical dysfunction, and compensatory patterns. Further, in addition to the various findings discussed above, in April 2010, a VA treating provider offered a positive opinion, based on his treatment of the Veteran, that the Veteran’s low back problems were related to his left femur disability. To the extent that there was a negative VA opinion dated in December 2002, the Board finds it not probative, as the rationale provided was wholly inadequate and appears to be based on an inaccurate or unestablished factual predicate. Specifically, the December 2002 examiner opined that the Veteran’s low back problems were not related to his service-connected left femur impairment because “[l]ow back pain is a very common entity in the general population especially if someone has had multiple car accidents as he has.” Interestingly, the Board notes that the record shows that the Veteran has been in two car accidents, one of which was in service. Thus, her rationale actually supports a direct albeit tenuous link between the Veteran’s low back problems and service. Regardless, the examiner did not offer any explanation as to why the Veteran’s clearly established left femur disability, which is shown to have resulted in an altered gait, atrophy of the left leg, and a leg length discrepancy, had no impact on his low back disability, but car accidents of which the examiner had no real knowledge concerning the details, did. Moreover, the examiner repeatedly noted that the Veteran’s left femur fracture “went on to heal” but failed to indicate on what basis s/he concluded that. In this regard, a post-service June 1990 VA examination noted the left femur was healing and that the Veteran was still being seen and followed. He was told his femur was healing well but that it would be at least another year before the rod would be removed. The Veteran was observed to walk with a limp favoring the left lower extremity and there was atrophy of left lower extremity. In October 1990, imaging showed a pattern of continued healing of the fracture and follow-up was recommended. Notably, there was no mention that the femur fracture was completely healed, nor is there medical evidence in the record dated after October 1990 but prior to the December 2002 examination that shows the left femur fracture to have fully healed. The examiner also appears to have ignored the Veteran’s early competent statements of chronic back pain ever since the leg fracture and rod placement. Given the foregoing deficiencies, the Board finds the December 2002 VA opinion to be lacking in probative value. Thus, in this instance, the positive evidence in support of a nexus between the Veteran’s left femur disability and his low back disability outweighs the single, flawed negative VA opinion. Accordingly, the Board finds that secondary service connection is warranted for a low back disability as secondary to a left femur disability. B. Hepatitis Turning to hepatitis, the Board finds that, in issuing a June 2010 rating decision, it was CUE for the RO to find that new and material evidence had not been received to reopen a claim of entitlement to service connection received in March 2010. In this regard, the Veteran’s initial hepatitis service connection claim was denied in a July 1990 based on lack of evidence showing a current disability. Following an application to reopen, a subsequent May 2005 rating decision confirmed and continued the July 1990 denial on the merits, presumably based on a lack of evidence of nexus, as a current disability and in-service incurrence were both conceded in the rating decision. The next application to reopen a claim of entitlement to service connection for hepatitis was received in March 2010, and then denied by a June 2010 rating decision based on a lack of new and material evidence. However, the Board observes that submitted in conjunction with the March 2010 application to reopen was an April 2010 nexus opinion by a treating VA physician linking the Veteran’s hepatitis to his military service. For the purposes of evaluating a request to reopen a previously denied claim, the credibility of new evidence will be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, as the April 2010 nexus opinion provided by a physician was new, and its credibility presumed, the opinion was undebatably sufficient to reopen the Veteran’s claim in June 2010, even if the RO found the opinion to be “not compelling evidence.” As such, it was CUE for the RO to decline to reopen the hepatitis service connection claim in June 2010, following receipt of the April 2010 opinion. Furthermore, having found that the hepatitis claim should have been reopened by the June 2010 rating decision, the Board also finds that service connection should have been granted, as the criteria for service connection for hepatitis were met. In that regard, the record, including VA treatment notes, in June 2010 showed (1) a current and severe hepatitis C disability; (2) in-service incurrence of hepatitis as noted on separation examination; and (3) an April 2010 positive nexus opinion linking the Veteran’s hepatitis to his service. Indeed, the Veteran’s February 1990 separation examination notes a history of hepatitis, cirrhosis, and jaundice in service, and it appears that the Veteran underwent liver function tests (LFT) and hepatitis A and B screening panels in conjunction with the examination. The LFTs were elevated, but the hepatitis results do not appear in the record. Nevertheless, the Veteran competently reported during a July 1990 VA examination that he was found to have hepatitis three years prior. The VA examiner also noted “Hepatitis” on the exam report, and the Veteran’s reports of abnormalities having been found during a blood donation three years prior, and on liver function testing in March 1990. Liver function tests completed in June 1990, presumably in conjunction with the July 1990 VA examination, also revealed elevated LFTs, and it is unclear whether any hepatitis screening was completed. The examiner diagnosed history of hepatic dysfunction secondary to alcohol abuse. Parenthetically, the Board observes that elsewhere it was noted that the Veteran’s elevated LFTs were “likely d/t hepatitis C,” such as during VA treatment in December 2003. Nevertheless, the record shows that the Veteran received private treatment for hepatitis post service and was found to have advanced liver disease as early as January 2003, at which time a transplant was considered. By 2004, he was found to have end state liver disease from hepatitis C. Importantly, during his post-service treatment, the Veteran consistently linked the onset of his hepatitis to his service. In May 2003, the Veteran indicated, regarding a hepatitis C risk assessment, it was “done in 1990 through Navy” and that he was in the care of infectious disease provider. In July 2004, the Veteran reported he was diagnosed with hepatitis in service during bloodwork. In September 2006, he again reported being diagnosed with hepatitis in 1990, and reported a history of a tattoo and a “blood brothers” pact with several friends in service. In August 2011, he again reported a diagnosis of hepatitis in the early 1990s, and in December 2011, he reported that he had known about his hepatitis since he finished his military service. The foregoing evidence supports that the onset of the Veteran’s hepatitis was in service, and that it continued post service to the present. And, as all the criteria are met, the Board finds that service connection for hepatitis C is warranted. 2. Entitlement to a TDIU Having determined that service connection is warranted for a low back disability and hepatitis C, the Board finds that the Veteran’s service-connected disabilities render him unemployable and that a TDIU is warranted. A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either: a) one disability that is rated at least 60 percent disabling, or b) two or more disabilities that amount to a combined disability rating of at least 70 percent and one of which is rated at least 40 percent disabling. 38 C.F.R. § 4.16(a). Here, the Veteran meets the schedular criteria for a TDIU for the period from February 12, 2014, based on his 40 percent rating for the left hip and combined disability rating of 70 percent during that period. For the period prior to February 12, 2014, the schedular criteria are not met currently, but extraschedular consideration by the Director of Pension and Compensation Services has been accomplished and, given the Board’s grants herein, the schedular criteria may be met after implementation. In any event, the remaining issue is whether the Veteran’s service-connected disabilities have precluded him from securing and following a substantially gainful occupation. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The central question is whether the Veteran’s service-connected disabilities alone were of sufficient severity to produce unemployability, taking into consideration the Veteran’s education, training, and special work experience, but not his age or impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The record reflects that the Veteran has a high school education with perhaps some college, and he worked after service primarily as a machinist, an electrical assembler, or doing construction/manufacturing work. He last worked in January 2009. The Veteran contends that he is unable to work in any position because of pain related to his various orthopedic disabilities, and because of his severe liver diseases, including hepatitis C and cirrhosis of the liver. The record shows that in April 2010, a VA provider opined that the Veteran’s chronic back and leg pain and hepatitis C rendered him disabled and unlikely to be able to sustain gainful employment. That opinion is supported by Social Security Administration (SSA) disability records, which show a January 2011 determination of disability due to the Veteran’s low back disability, disabilities affecting his lower extremities (including his left femur disability and hip disabilities), and chronic liver disease. Interestingly, an SSA examiner found that the Veteran would be unable to perform even sedentary work. While acknowledging that some nonservice-connected disabilities were considered by SSA, the SSA decision discusses mostly service-connected disabilities, which weighs in favor of the Veteran’s TDIU claim. Also supportive of the April 2010 opinion are various VA examinations documenting impairment in the Veteran’s occupational functioning. For example, a May 2009 VA contract examiner found that, due to the Veteran’s back and leg pain, he could not stand for more than 15 minutes at a time or walk more than 2 blocks without experiencing pain. It was noted he had to quit his job as an electrical technician because the pain in his back and legs limited his activities and precluded him from doing his job. An April 2014 VA contract examiner noted that, due to his hip conditions, the Veteran had limitations in bending, pushing, pulling, lifting, and carrying, and could not stand or walk for very long without pain. A December 2014 examiner found that the Veteran’s hip disabilities would preclude occupations with moderate to high physical activities, and noted similar physical limitations due to the Veteran’s hip disabilities, including an inability to perform frequent climbing, stooping, kneeling, or crouching, and decreased standing and ambulation abilities. Indeed, even without considering the back disability or liver issues, a March 2017 VA examiner found that the Veteran would likely require re-training to find gainful employment in a primarily sedentary position based on a review of his skills, as his work history required prolonged standing combined with sitting and lifting. Given the nature of the Veteran’s service-connected disabilities, as well as his education and work history, the Board finds that the Veteran is entitled to a TDIU, even during any such periods that the schedular criteria for a TDIU were not met (if any, after implementation of the service connection grants herein). While acknowledging that an extraschedular TDIU was denied by the Director of Compensation Service in August 2017, the Board finds that the Veteran’s work history is limited to occupations that are no longer reasonably available to him because of his service-connected disabilities, and have not been available to him throughout the entirety of the appeal period. The competent lay and medical evidence establishes that the Veteran is incapable of performing the required duties of an electrical assembler, a machinist, or in construction and manufacturing, because of his service-connected orthopedic disabilities, along with his severe liver disease (hepatitis C and cirrhosis). The Board finds that the opinions of the VA provider in April 2010, and the VA examiners in May 2009, April 2014, and March 2017 regarding the impact of the Veteran’s service-connected disabilities on his ability to work are entitled to probative weight. Given that the Veteran worked in positions requiring significant physical activity, and because he has no other relevant training, experience, or education beyond a high school diploma, it is unlikely that the Veteran would be able to secure meaningful and gainful employment outside his past experience. The Board finds that the evidence is at least in equipoise with respect to whether the Veteran’s service-connected disabilities render him unable to secure or follow a substantially gainful occupation. 38 U.S.C. § 5107(b). Accordingly, the Board finds that a TDIU is warranted. S. C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Fagan 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.