Citation Nr: 20024029 Decision Date: 04/08/20 Archive Date: 04/08/20 DOCKET NO. 13-31 241 DATE: April 8, 2020 ORDER 1. The appeal to reopen a claim of service connection for hepatitis C is granted. 2. Entitlement to service connection for hepatitis C (on de novo review) is denied. 3. Entitlement to a compensable rating for hemorrhoids is denied. FINDINGS OF FACT 1. An unappealed April 2005 rating decision denied the Veteran service connection for hepatitis C finding essentially a current diagnosis of hepatitis C was not shown. 2. Evidence received since the April 2005 rating decision shows a current diagnosis of hepatitis C; relates to an unestablished fact necessary to substantiate the claim of service connection for hepatitis C; and raises a reasonable possibility of substantiating such claim. 3. Hepatitis C was not manifested in, and is not shown to be etiologically related to, the Veteran’s service. 4. The Veteran’s hemorrhoids are not shown to have been more than mild or moderate; large or thrombotic, or irreducible, hemorrhoids, with excessive redundant tissue, evidencing frequent recurrences, are not shown. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the claim of service connection for hepatitis C may be reopened. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156(a). 2. Service connection for hepatitis is not warranted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304. 3. A compensable rating for hemorrhoids is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.114, Code 7336. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from September 1972 to December 1974. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a February 2013 rating decision. In September 2017, a Travel Board hearing was held before the undersigned; a transcript is in the record. In November 2017 the case was remanded for further development. [Entitlement to service connection for bilateral hearing loss was also on appeal. An October 2019 rating decision granted service connection for bilateral hearing loss, rated 0 percent, effective October 26, 2010.] Although the Regional Office (RO) implicitly reopened the claim of service connection for hepatitis C (by deciding it on the merits in the February 2013 rating decision), whether new and material evidence has been received to reopen the claim must be addressed in the first instance by the Board because that issue goes to the Board’s jurisdiction to reach the underlying claim and adjudicate it de novo. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). 1. The appeal to reopen a claim of service connection for hepatitis C is granted. 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. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. New and material evidence is defined by regulation. New evidence means evidence not previously submitted to agency decision-makers. Material evidence is 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 establishing the claim. See 38 C.F.R. § 3.156(a). The U.S. Court of Appeals for Veterans Claims (CAVC) has held that the phrase ‘raises a reasonable possibility of establishing the claim’ must be viewed as enabling rather than precluding reopening. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For the purpose of reopening a claim, the credibility of newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). An April 2005 rating decision denied service connection for hepatitis C finding essentially that such disease was not currently shown. He was informed of, and did not appeal, that decision, or submit new and material evidence within a year following, and it is final. 38 U.S.C. § 7105. The evidence of record at the time of the April 2005 rating decision included the Veteran’s service treatment records (STRs), VA treatment records (from May to July 1990), and his lay statements. Evidence received since the April 2005 rating decision includes VA treatment records (to include an examination) and the Veteran’s lay statements. On August 2011 liver diseases examination, hepatitis C was diagnosed with an onset date of January 2002. As service connection for hepatitis C was previously denied on the basis that the Veteran did not have a current hepatitis C disability, for evidence to be new and material in the matter, it would have to be evidence not previously of record that tends to show has hepatitis C. The August 2011 liver examination found the Veteran has hepatitis C. Such evidence relates to an unestablished fact necessary to substantiate the claim of service connection for hepatitis C and raises a reasonable possibility of substantiating the claim (particularly considering the low threshold standard for reopening endorsed by CAVC in Shade, supra). Therefore, the additional evidence received is both new and material, and the claim of service connection for hepatitis C, may be reopened. 38 U.S.C. § 5108. 2. Entitlement to service connection for hepatitis C on de novo review is denied. At the outset the Board notes that the Veteran is not prejudiced by the Board’s proceeding to de novo review of the claim (without referring the claim to the RO for consideration upon reopening) because the RO has already done so and arranged for an examination; remand for RO consideration would serve no useful purpose. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To substantiate a claim of service connection, there must be evidence of (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A disease first diagnosed after discharge may be service connected if all the evidence establishes that it was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran’s service treatment records (STRs) note that he sought treatment for hepatitis during service. An October 1973 STR notes that he reported dark orange urine but no pain on urination and dull pain in the area of his liver. A November 1973 STR notes that the Veteran complained of malaise, anorexia, headache, nausea and vomiting, reported dark urine and yellow eyes, and had indicated that several soldiers in his barracks had hepatitis. At discharge from the medical treatment facility he had no complaints but was provided a temporary 21-day profile. An additional November 1973 STR notes that the hepatitis was probably viral. On November 1974 service separation examination, all systems were normal on clinical evaluation. In his November 1974 report of medical history, the Veteran reported that he was treated for hepatitis. An August 1989 VA treatment record notes that the Veteran reported 8 years of heroin usage and 2 years of cocaine usage. A March 2003 VA treatment record notes that a liver test showed hepatitis C with a high viral load, greater than 850,000. A June 2009 VA treatment record notes that the Veteran’s hepatitis C was asymptomatic. An April 2011 VA treatment record notes a diagnosis of hepatitis C and that the Veteran was not currently interested in treatment. On August 2011 liver examination, the Veteran reported that he was fatigued, but not currently undergoing treatment for hepatitis C. He related that after separation from service, he was treated for alcohol, cocaine, and IV drug use at VA. Hepatitis C was diagnosed with an onset date in approximately January 2002. The examiner opined that the Veteran’s hepatitis C was less likely than not related to the hepatitis he had in service. He explained that the hepatitis the Veteran had in service was most likely an acute viral hepatitis A which usually resolves completely without going on to develop into a chronic liver condition. He indicated that the most likely etiology for his hepatitis C was his post service IV drug use because hepatitis C is usually transmitted via blood and IV drug use, and there are no records of any abnormal liver function tests or treatment for hepatitis postservice until 2002. A February 2013 liver biopsy revealed mild to moderate portal and lobular hepatitis with focal peri-portal fibrosis, consistent with a clinical history of hepatitis C virus infection. At the September 2017 Board hearing, the Veteran testified that he sought treatment for hepatitis C from VA in 1974-1975. November 2019 correspondence notes that a search was conducted, and that no records [pertaining to the Veteran] from 1974 to 1975 from Coatesville VAMC or Lebanon VAMC were found. A November 2019 addendum [to the August 2011] opinion notes that the provider reviewed the Veteran’s file and any records added since the August 2011 examination, and that it was still his opinion that the diagnosis of hepatitis C was less likely as not related to the hepatitis that the Veteran had during his service. He explained that the diagnosis in the 1973 discharge summary was hepatitis A antigen positive, a May 1990 SGOT was normal and abnormal LFTs only began to appear after hepatitis C and B were diagnosed and drug consumption began to be documented in the Veteran’s records. It is not in dispute that the Veteran has hepatitis C. It is also not in dispute that he was seen for hepatitis during service. However, the probative (medical, as it is a medical question), evidence in the matter indicates that the hepatitis treated in service was a hepatitis A, which resolved without residuals. The Veteran’s postservice treatment records do not show a positive hepatitis C test or abnormal liver function until 2002 (approximately 27 years after service). The record does not show or suggest that the Veteran's current hepatitis C is, or may be, due to an event or risk factor in service. Whether a current hepatitis is etiologically related to remote service/a risk factor noted therein is a medical question. It requires medical expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Veteran does not profess to have any medical expertise in infectious diseases or their etiology, and does not cite to supporting medical opinion or treatise. The August 2011 VA examiner (with November 2019 addendum) opined that the Veteran’s current hepatitis C is less likely than not related to an injury, disease, event, or risk factor in service. The examiner is a medical professional with appropriate relevant expertise and the opinion is probative evidence in this matter; it reflects familiarity with accurate medical history and includes rationale that cites to supporting factual data (that the hepatitis the Veteran suffered in service was acute and resolved completely without developing into a chronic liver condition, and identified a more likely etiology for the hepatitis C, namely postservice IV drug usage). While the Board has no reason to question the Veteran’s sincerity in his belief that his hepatitis C is related the hepatitis he had in service. But, because he is a layperson and lacks the requisite expertise (and does not cite to supporting factual data, treatise evidence, or medical opinion), his opinion in the matter is not competent (and probative) evidence in the matter. Because there is no competent medical evidence to the contrary, the Board finds the VA examiner’s opinion persuasive. Considering the foregoing, the Board finds that the preponderance of the evidence is against this claim, and that the appeal seeking service connection for hepatitis C must be denied. 3. A compensable rating for hemorrhoids is denied. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Pertinent general policy considerations include: interpreting examination reports in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 ; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the appeal is from the initial rating assigned with the award of service connection, (as with the instant rating for hemorrhoids) separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran’s hemorrhoids are rated under Code 7336, which provides for a 0 percent rating for mild or moderate external or internal hemorrhoids. A 10 percent rating is warranted for large or thrombotic external or internal hemorrhoids, irreducible, with excessive redundant tissue, evidencing frequent recurrences. A (maximum) 20 percent rating is warranted for external or internal hemorrhoids with persistent bleeding and with secondary anemia, or with fissures. 38 C.F.R. § 4.114. A September 2011 VA treatment record notes a prescription for hemorrhoidal suppositories. On May 2012 VA rectum and anus examination, the Veteran reported that he used topical steroid Anusol cream for his hemorrhoids. On examination it was noted that the hemorrhoids were mild or moderate in severity, and no external hemorrhoids, anal fissures, or other abnormalities were shown. A December 2016 VA treatment record notes that on examination, the Veteran’s sphincter tone was normal, and no external hemorrhoids were noted. A January 2017 VA treatment record notes that the Veteran denied active bleeding (from his hemorrhoids) but noted a history of hemorrhoids, intermittent constipation, and diarrhea. At the September 2017 VA Travel Board hearing, the Veteran testified that his hemorrhoids had worsened in severity. On October 2019 VA anus and rectum examination, the Veteran reported occasional flare ups of hemorrhoids, that they were currently not active, and that he used over-the-counter medication for treatment when needed. On examination, no external hemorrhoids, anal fissures, or other abnormalities were noted. Any hemorrhoids were determined to be mild or moderate. The examiner opined that the Veteran’s hemorrhoids had no functional impact. The evidence outlined above shows that the symptoms of the Veteran’s hemorrhoids do not exceed the criteria for a 0 percent rating under Code 7336. Although he reported a history of occasional bleeding and use of topical creams to treat the hemorrhoids, no examination or instance of treatment of record found him to have large or thrombotic, or irreducible hemorrhoids, with excessive redundant tissue, evidencing frequent recurrences, or persistent bleeding with anemia, or with fissures. The preponderance of the evidence (including the Veteran’s self-reports of symptoms and impairment on examinations) is against a finding of more than mild or moderate hemorrhoids; a compensable rating is not warranted. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Bayles, 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.