Citation Nr: 20079377 Decision Date: 12/16/20 Archive Date: 12/16/20 DOCKET NO. 12-05 078 DATE: December 16, 2020 ORDER New and material evidence having been received, entitlement to service connection for hepatitis C is reopened. REMANDED Entitlement to service connection for hepatitis C is remanded. Entitlement to service connection for a heart and bone disability, claimed as secondary to hepatitis C is remanded. Entitlement to service connection for a neck disability is remanded. Entitlement to service connection for a bilateral knee disability is remanded. Entitlement to an evaluation in excess of 10 percent prior to March 27, 2012, and in excess of 40 thereafter for a service connected back disability is remanded. FINDINGS OF FACT Evidence received since the December 2008 rating decision is new and material regarding the issues of service connection for hepatitis C, as it contains evidence not previously considered that has some tendency to help link the Veteran's current disabilities to his active military service. CONCLUSIONS OF LAW The criteria for reopening the Veteran's previously denied claim of service connection for hepatitis C, have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, had service in the United States Navy from October 1977 to October 1980 and in the United States Air Force from June 1982 to August 1985. In May 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ); a transcript of the hearing is associated with the claims file. In June 2018, the Board again remanded the claim to attempt to obtain potentially outstanding records. After review of the remand, the Board is satisfied that there has been substantial compliance with its requested actions and no further action is necessary to comply with the remand’s directives. Specifically, multiple attempts were made to obtain the requested records and medical facilities contacted indicated that no records were found. Therefore, the case is once again before the Board for appellate consideration of the issue on appeal. Stegall v. West, 11 Vet. App. 268 (1998). New and Material Evidence. The Veteran contends that he has a current diagnosis of hepatitis C that is the result of military service. Generally, a claim which has been denied in a final unappealed rating decision, or a rating decision that was appealed but was not perfected, may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c), (d)(3); 38 C.F.R. § 20.1103. If "new and material" evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). "[N]ew evidence" means evidence not previously submitted to agency decision makers which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial. 38 C.F.R. § 3.156(a). Materiality has two components, first, that the new evidence pertains to the reason for the prior final denial, and second, that the new evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When making a determination whether the submitted evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim, applying concepts derived from the duty to assist. Id. at 118. The Veteran seeks to reopen the previously denied claim for service connection for hepatitis C. The claim was initially considered and denied by the RO in a December 2008 rating decision. The Veteran did not initiate an appeal of the decision denying service connection for the hepatitis C, nor did he not submit any new and material evidence, including medical evidence, within the applicable one-year period. See 38 C.F.R. § 3.156(b); Jennings v. Mansfield, 509 F.3d 1362, 1368 (Fed. Cir. 2007). As such, the decision became final as to the evidence of record then and is not subject to revision on the same factual basis. 38 U.S.C. § 7105(b); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In January 2010, the Veteran filed to reopen the claim for entitlement to service connection for hepatitis C. The claim was subsequently considered and denied in an April 2010 rating decision. The Veteran filed a timely notice of disagreement with the April 2010 rating decision and this appeal followed. Since the December 2008 rating decision, additional evidence has been received in the form of VA treatment records, a VA examination, and lay evidence from the Veteran. The VA treatment records, VA examination, and testimony from the Veteran are new because they have not been previously submitted. This evidence is also material because it pertains to the basis for the prior denial, that is, a basis to relate the current hepatitis C to the Veteran's periods of active service and raises a reasonable possibility of substantiating the claims. Specifically, VA treatment records indicate that the Veteran had in-service risk factors for hepatitis C. Therefore, the Board finds that new and material evidence has been received to reopen service connection for hepatitis C. See 38 C.F.R. § 3.156(a). When making determinations as to whether new and material evidence has been presented, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992); Duran v. Brown, 7 Vet. App. 216 (1995). This new evidence raises a reasonable possibility of substantiating the claim; thus, this evidence is new and material and the requirements to reopen the claim under 38 C.F.R. § 3.156(a) have been satisfied. Accordingly, the Board has determined that new and material evidence has been received to reopen service connection for hepatitis C. REASONS FOR REMAND 1. Hepatitis C. The Veteran contends that service connection is warranted for hepatitis C. The Board notes that the Veteran is service connected for hepatitis B. However, VA treatment records appear to show a current diagnosis of hepatitis C and that the Veteran had risk factors associated with service. The Board notes the November 2008 VA examination that was for both hepatitis B and C. However, the examiner failed to fully discuss hepatitis C as separate from the hepatitis B diagnosis and also failed to address the Veteran’s in-service risk factors such as air gun injection. As such, a remand is necessary. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran's claims for entitlement to service connection for a heart and bone disability, claimed as secondary to hepatitis C are inextricably intertwined with the issue of entitlement to service connection for hepatitis C, which is being remanded for further adjudication. Therefore, a final decision on the issue of entitlement to service connection for heart and bone disabilities cannot be rendered at this time. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). 2. Bilateral Knee and Neck Conditions are Remanded. The Veteran contends that service connection is warranted for a neck and bilateral knee disabilities, to include as secondary to service-connected disabilities. Service treatment records are silent for complaints of, or treatment for, any neck or bilateral knee disabilities. However, during his May 2018 Board hearing, the Veteran indicated that he injured his neck and knees in service and self-medicated. Current treatment records show the Veteran has reported both neck and bilateral knee pain, though it is unclear what diagnosed disabilities may be associated with the reports. Under the VCAA, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). To date, the Veteran has not been provided with a VA examinations to determine the etiology of any current neck or bilateral knee disabilities, therefore, a remand is necessary. 3. Back Disability The Veteran contends the severity of the service-connected back disability has worsened beyond its assigned ratings. During the pendency of the appeal, the Veteran has continued to undergo treatment for the service-connected back disability. The Veteran last underwent VA examinations for the service-connected back disability in March 2018. However, during the May 2018 Board hearing, the Veteran indicated a potential worsening of the disability. While the passage of time alone does not warrant a new examination, given the extent of treatment the Veteran has received for the disabilities, and his complaints of worsening, the Board finds that a current examination is necessary. Palczewski v. Nicholson, 21 Vet. App. 174 (2007); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). The matters are REMANDED for the following action: 1. Contact the Veteran and his representative and ask them to provide sufficient information and necessary authorization in order to obtain copies of any outstanding records of treatment by non-VA health care providers including any inpatient treatment for the claims on appeal. The letter should invite the Veteran and his representative to submit any pertinent medical evidence in support of his claim. If the Veteran or his representative provides the necessary information and authorizations, obtain any outstanding clinical records and incorporate them into the electronic claims file. 2. Associate any outstanding VA treatment records with the electronic claims file. 3. After completion of the above specified development, schedule the Veteran for an examination to determine the etiology of any hepatitis C. The examiner must have the appropriate expertise and be provided access to the electronic claims file. The examiner must indicate review of the claims file in the examination report. Following a review of the claims file, the examiner should provide an opinion for the following questions: a) Does the Veteran have a current diagnosis of hepatitis C? b) If the Veteran does have a current diagnosis of hepatitis C. Is it at least as likely as not (i.e., there is a 50 percent or greater probability) that it was incurred during the Veteran's period of active military service? The VA examiner must discuss the Veteran’s in-service risk factors to include air gun vaccinations. 4. Schedule the Veteran for an examination to determine the nature and etiology of any cervical spine disabilities. The examiner should provide an opinion on the following: a) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's current cervical spine disability is directly related to service? b) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's current cervical spine disability is secondary to the Veteran's service-connected disabilities or permanently aggravated beyond its natural progression due to the service-connected disabilities? 5. Schedule the Veteran for an examination to determine the nature and etiology of any bilateral knee disabilities. The examiner should provide an opinion on the following: a) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's current bilateral knee disability is directly related to service? b) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's current bilateral knee disability is secondary to the Veteran's service-connected disabilities or permanently aggravated beyond its natural progression due to the service-connected disabilities? 6. Schedule the Veteran for a VA orthopedic examination to determine the current severity of his back disability. The entire claims file, including any newly obtained treatment records, must be reviewed by the examiner and all necessary tests should be conducted. The VA examiner must comment on any neurologic or bowel and bladder symptoms secondary to the service-connected back disability. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Teague, 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.