Citation Nr: A20018326 Decision Date: 12/10/20 Archive Date: 12/10/20 DOCKET NO. 200115-54519 DATE: December 10, 2020 ORDER A readjudication of the claim of entitlement to service connection for hepatitis C is granted. A readjudication of the claim of entitlement to service connection for cirrhosis of the liver is granted. A readjudication of the claim of entitlement to service connection for asbestosis is granted. REMANDED The claim of entitlement to service connection for hepatitis C is remanded. The claim of entitlement to service connection for cirrhosis is remanded. The claim of entitlement to service connection for asbestosis is remanded. FINDINGS OF FACT 1. New and relevant evidence has been received with regard to the claim of entitlement to service connection for hepatitis C. 2. New and relevant evidence has been received with regard to the claim of entitlement to service connection for cirrhosis. 3. New and relevant evidence has been received with regard to the claim of entitlement to service connection for asbestosis. CONCLUSIONS OF LAW 1. The criteria for readjudication of the claim of entitlement to service connection for hepatitis C have been met. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156, 3.2501. 2. The criteria for readjudication of the claim of entitlement to service connection for cirrhosis have been met. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156, 3.2501. 3. The criteria for readjudication of the claim of entitlement to service connection for asbestosis have been met. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156, 3.2501. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1973 to August 1977. This matter comes to the Board of Veterans’ Appeals (Board) on appeal of a decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). In a January 2020 notice of disagreement (NOD), the Veteran requested direct Board review of the decision pursuant to the Appeals Modernization Act (AMA). The AMA provides a new framework for review of adverse decisions. New and Relevant Evidence The Veteran claims that he incurred asbestosis and hepatitis during service, and then developed cirrhosis as the result of the hepatitis. The RO denied the asbestosis claim in an unappealed August 2003 rating decision. The RO denied the hepatitis and cirrhosis claims in an April 2008 rating decision against which the Veteran filed a NOD. He did not appeal the decision to the Board following issuance of a September 2008 statement of the case. The rating decisions are final, therefore. See 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 20.302, 20.1103. VA will readjudicate a claim if new and relevant evidenced is presented or secured. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. “Relevant evidence” is evidence that tends to prove or disprove a matter in issue. 38 C.F.R. § 3.2501. The Board finds that new and relevant evidence has been received since the August 2003 and April 2008 decisions. Since these decisions volumes of additional evidence pertaining to the claims have been added to the claims file. For example, the record contains VA compensation examination reports addressing the claims, as well as private medical evidence detailing treatment of the underlying disorders in recent years. As the record contains new and relevant evidence, a readjudication of the claims is warranted. REASONS FOR REMAND Before readjudicating the claims on appeal, additional development should be conducted. The evidence shows that the Veteran was treated for hepatitis during service, that he may have developed cirrhosis of the liver as the result of hepatitis, and that he served aboard two U.S. navy ships. This evidence indicates that he may have incurred hepatitis C and cirrhosis in service, and that he may have been exposed to asbestos on ships. See VA Adjudication Procedure Manual, M21-1, Part IV, Subpart ii, Chapter 1, Section I-3 (M21). The matters are REMANDED for the following action: 1. Schedule an examination to determine the nature and etiology of hepatitis C. After reviewing the claims file, interviewing the Veteran, and examining him, the examiner should answer the following questions: (a). Is it at least as likely as not (i.e., probability of 50 percent or greater) that hepatitis C had its onset during service or is related to a disease, event, or injury during service? In answering this question, discuss the service treatment records (STRs) documenting treatment of hepatitis in 1974-75. The record contains two VA compensation examination reports addressing this claim. The first report, dated in March 2007, states that hepatitis C is likely unrelated to service. In support, the examiner concluded that the in-service hepatitis was type A rather than C. The report did not indicate whether the Veteran now has hepatitis A. The second report is dated in April 2018. This examiner also found hepatitis C likely unrelated to service. But the examiner did not explain the finding or address the treatment of hepatitis during service. The report did not indicate whether the Veteran now has hepatitis A. (b). Does the Veteran now have hepatitis A? If not, does the absence of hepatitis A strengthen the likelihood that the in-service hepatitis was hepatitis C? (c). If you find that the in-service hepatitis was likely hepatitis A, how can such a conclusion be drawn given the fact that testing for hepatitis C was not available in 1974-75? 2. Schedule an examination to determine the nature and etiology of cirrhosis. After reviewing the claims file, interviewing the Veteran, and examining him, the examiner should answer the following questions: (a). Is it at least as likely as not that cirrhosis had its onset during service or is related to a disease, event, or injury during service? In answering this question, address the in-service treatment of hepatitis. (b). If the answer to (a) is negative, is it at least as likely as not that cirrhosis manifested to a compensable degree within the first year of discharge from service in 1977? (c). If the answers to (a) and (b) are negative, and you find that current hepatitis C as likely as not had its onset during service, is it at least as likely as not that cirrhosis is due to or caused by hepatitis C? (d). If the answers to (a) through (c) are negative, and you find that current hepatitis C as likely as not had its onset during service, is it at least as likely as not that cirrhosis has been aggravated (i.e., permanently or temporarily worsened beyond the natural progress) by hepatitis C? If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the disorder found prior to aggravation; and (2) the increased manifestations which, in the examiner’s opinion, are proximately due to the service-connected disorder(s). Please explain in detail any opinion provided and the supporting rationale. The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. In rendering the requested opinion, the examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a basis (e.g., credibility) to doubt the history provided by the Veteran, the examiner should indicate this in the examination report and provide a rationale for that determination. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. After conducting development pursuant to the M21, schedule an examination to determine the nature and etiology of any lung disorder. After reviewing the claims file, interviewing the Veteran, and examining him, the examiner should answer the following questions: (a). What lung disorder(s) has the Veteran been diagnosed with since his claim to reopen service connection in March 2018? In answering this question, note that certain private evidence indicates that the Veteran has chronic obstructive pulmonary disease (COPD) while an asbestosis diagnosis is noted in an April 2018 VA report. This report does not indicate, however, how the diagnosis was determined. (b). Is it at least as likely as not (i.e., probability of 50 percent or higher) that any diagnosed lung disorder had its onset during service or is related to an in-service disease, event, or injury? In answering (b), consider and discuss the Veteran’s service aboard naval vessels and any relevant findings generated by the RO’s development pursuant to M21. Please explain in detail any opinion provided and the supporting rationale. The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. In rendering the requested opinion, the examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a basis (e.g., credibility) to doubt the history provided by the Veteran, the examiner should indicate this in the examination report and provide a rationale for that determination. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. Then readjudicate the claims of entitlement to service connection for hepatitis C, cirrhosis, and asbestosis. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christopher McEntee, 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.