Citation Nr: 20024856 Decision Date: 04/10/20 Archive Date: 04/10/20 DOCKET NO. 20-03 349 DATE: April 10, 2020 ORDER New and material evidence having been received; the claim of entitlement to service connection for Hepatitis C is reopened. The appeal is granted to that extent only. Entitlement to an initial rating in excess of 10 percent for epilepsy, status-post head injury is denied. REMANDED Entitlement to service connection for Hepatitis C is remanded. Entitlement to service connection for diabetes mellitus, type 2 (DM II) is remanded. Entitlement to service connection for hypertension (claimed as high blood pressure) is remanded. Entitlement to service connection for coronary artery disease (CAD) (claimed as heart disease) is remanded. Entitlement to an effective date prior to July 21, 2017; for the grant of service connection for epilepsy is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. In an April 2003 rating decision, service connection for Hepatitis C was denied. The Veteran did not file an appeal and no new and material evidence was received within a year. As such, the April 2003 rating decision denying service connection for Hepatitis C became final. 2. The evidence received since the April 2003 rating decision is not cumulative or redundant of evidence previously of record and raises a reasonable possibility of substantiating the claim of entitlement to service connection for Hepatitis C. 3. The Veteran’s epilepsy is stable, and he has not had a seizure in two years. CONCLUSIONS OF LAW 1. The April 2003 rating decision, which denied service connection for Hepatitis C is final. 38 U.S.C. §§ 7105; 38 C.F.R. § 20.1103. 2. New and material evidence having been received, service connection for Hepatitis C is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 3. The criteria for entitlement to an initial rating in excess of 10 percent for epilepsy, status post head injury have not been met. 38 U.S.C. § 1155, 5107(b); 38 C.F.R. § 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8910. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May to August 1973. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board expanded the appeal to include the matter of the Veteran’s entitlement to a TDIU as part and parcel to the initial higher rating claim for epilepsy under Rice v. Shinseki, 22 Vet. App. 447 (2009), as raised by the Veteran’s attorney in the October 2018 notice of disagreement. 1. New and material evidence having been received; the claim of entitlement to service connection for Hepatitis C is reopened. Pursuant to 38 U.S.C. § 7104 (b), a decision by the Board may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered. As well, a claim that has been denied in a final unappealed rating decision by the RO may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (c). The exception to this rule is described under 38 U.S.C. § 5108, which provides that “if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.” Therefore, once a rating decision has been issued, absent the submission of new and material evidence, the claim cannot be reopened or adjudicated by VA. 38 U.S.C. §§ 5108, 7104(b); 38 C.F.R. § 3.156, 20.1105; see Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) (reopening after a prior Board denial). New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as 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 (a). The Board will generally presume the credibility of the evidence in determining whether evidence is new and material. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Significantly, however, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). In deciding whether new and material evidence has been submitted the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). 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). Here, the Board finds that new and material evidence has been received to reopen the previously denied claim. The claim was denied in an April 2003 rating decision. The agency of original jurisdiction (AOJ) denied the Veteran’s claim because the evidence submitted failed to show the Veteran had any treatment or diagnosis of Hepatitis C in service or any risk factors for Hepatitis in service. The Veteran was provided with notification of the April 2003 rating decision and his appellate rights. The Veteran did not file an appeal and no new and material evidence was received during the one year appeal period following the notice of the decision (see 38 C.F.R. § 3.156(b)), and no additional service records have been received at any time pertinent to the previously disallowed claim for service connection for Hepatitis C, warranting re-adjudication of the claim (see 38 C.F.R. § 3.156(c)). Thus, the April 2003 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Subsequent to the April 2003 rating decision, the Veteran has submitted additional evidence and arguments that if presumed credible for purposes of reopening, show that he has a current diagnosis of Hepatitis C that is related to service. Specifically, the Veteran has asserted that his Hepatitis C was caused by immunizations that were administered by the use of jet injectors during service. In the October 2018 notice of disagreement, the Veteran, through his attorney, submitted and cited several medical treatises and other materials discussing the relationship between immunization with jet injectors and Hepatitis C. Accordingly, this evidence is sufficient to reopen the previously denied claim. See 38 C.F.R. § 3.156 (a). 2. Entitlement to an initial rating in excess of 10 percent for epilepsy, status- post head injury. The Veteran contends that he is entitled to a higher rating than what is currently reflected. The Veteran filed a claim to reopen his claim of service connection for epilepsy on July 21, 2017. In the March 2018 rating decision on appeal, the AOJ granted service connection and assigned an initial 10 percent rating effective the date of claim to reopen. Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. While the Veteran’s entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, in connection with a claim for an initial rating or increased rating, staged rating is appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Epilepsy, whether grand mal under Diagnostic Code 8910 or petit mal under Diagnostic Code 8911, is rated under the General Rating Formula for Major and Minor Epileptic Seizures. 38 C.F.R. § 4.124a. Under the General Rating Formula for Major and Minor Epileptic Seizures, a 10 percent rating is assigned for a confirmed diagnosis of epilepsy with a history of seizures. A 20 percent rating is warranted for 1 major seizure in the last 2 years or at least 2 minor seizures in the last 6 months. A 40 percent rating is assigned for 1 major seizure in the last 6 months or 2 major seizures in the last year; or averaging at least 5 to 8 minor seizures weekly. A 60 percent rating is warranted for averaging at least 1 major seizure in 4 months over the last year; or 9 to 10 minor seizures per week. An 80 percent rating is assigned for averaging at least 1 major seizure in 3 months over the last year; or more than 10 minor seizures weekly. A 100 percent rating is warranted for averaging at least 1 major seizure per month over the last year. 38 C.F.R. § 4.124a, Diagnostic Code 8910, 8911. A major seizure is characterized by the generalized tonic-clonic convulsion with unconsciousness. A minor seizure consists of a brief interruption in consciousness or conscious control associated with staring or rhythmic blinking of the eyes or nodding of the head (pure petit mal), or sudden jerking movements of the arms, trunk, or head (myoclonic type) or sudden loss of postural control (akinetic type). 38 C.F.R. § 4.124a, Diagnostic Code 8910, Note (1), (2). The General Rating Formula for Major and Minor Epileptic Seizures provides that there will be no distinction between diurnal and nocturnal major seizures. 38 C.F.R. § 4.124a, Note (3). In March 2018, the Veteran was afforded a VA examination for seizure disorder. The examiner noted that the Veteran did not require medication or any other treatment to control his epilepsy. The Veteran had witnessed seizures from the 1970s until the 1980s. The examiner noted the Veteran had a confirmed diagnosis of epilepsy with a history of seizures. Symptoms attributable to seizure disorder activity were noted as generalized tonic-clonic convulsion, brief interruption in consciousness or conscious control, and episodes of abnormalities of memory. The Veteran did not have any minor seizures or minor psychomotor seizures or any major seizures or major psychomotor seizures within the preceding 2 years. The Veteran had no history of epilepsy associated with non-psychotic organic brain syndrome or with a psychotic disorder. Based on the evidence above, the Board finds that the Veteran’s epilepsy reflected symptomatology more nearly approximating a 10 percent rating. The March 2018 VA examination reveals there has been no change in the Veteran’s symptomatology. The Veteran has not exhibited symptoms warranting a 20 percent rating. There has been no seizure activity in the last 2 years. The Board recognizes the Veteran’s contentions that his epilepsy disorder has worsened, however the competent medical evidence of record outweighs any lay assertions. A seizure diagnosis is a pathological process that requires medical expertise and training relating to the functioning of the brain, therefore the March 2018 VA examination report completed by a person with medical training and education carries the more probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). In sum, the Board finds that the preponderance of the evidence is against the claim of entitlement to an initial rating in excess of 10 percent for the Veteran’s epilepsy disability. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable, and the claim must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 1. Entitlement to service connection for Hepatitis C is remanded. Here, the Veteran has asserted his Hepatitis C was caused by immunizations that were administered using jet injectors during service. Review of the Veteran’s service treatment records (STRs) note his blood was tested for hemoglobin levels and tuberculosis. In the October 2018 notice of disagreement, the Veteran, through his attorney, submitted and cited several medical treatises and other materials discussing the relationship between immunization with jet injectors and Hepatitis C. Moreover, as the Veteran has a current diagnosis of Hepatitis C since at least 1997 and the Veteran has submitted evidence that this disability may be associated with service, a VA examination with respect to this claim is necessary to determine the nature and etiology of the Veteran’s Hepatitis C. 2. Entitlement to service connection for DM II, hypertension and CAD is remanded. Finally, the Veteran has asserted that these conditions are caused or aggravated by his Hepatitis C. As a decision on the remanded issue of entitlement to service connection for Hepatitis C could significantly impact a decision on these issues, the issues are inextricably intertwined. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180 (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on a veteran’s claim for the second issue). A remand of the claims for service connection for DM II, hypertension, and CAD is required. 3. Entitlement to an effective date prior to July 21, 2017; for the grant of service connection for epilepsy is remanded. In regard to this issue, the Veteran submitted a notice of disagreement (NOD) in October 2018, but VA has not issued a statement of the case (SOC). In these circumstances, the Board must remand for issuance of an SOC. 38 C.F.R. § 19.31, 19.37; see Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). 4. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. As for the TDIU claim, the Board notes that, inasmuch as resolution of the service connection claims, as well as the claim for an earlier effective date for epilepsy may well have a bearing on the claim for a TDIU, the claims are inextricably intertwined and should be considered together. As Board action on the claim for a TDIU would be premature, at this juncture, this matter is being remanded, as well. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his Hepatitis C. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the Veteran’s being administered vaccinations with use of jet injectors during service. The examiner should address the contentions in the October 2018 notice of disagreement and the articles, citations to sources, and VA materials discussing the relationship between jet injectors and Hepatitis C. If it is determined that the Veteran’s Hepatitis is related to service, then the examiner should opine whether the Veteran’s DM II, hypertension and CAD are at least as likely as not proximately due to Hepatitis C or aggravated beyond its natural progression by his Hepatitis C. (Continued on the next page)   2. Send the Veteran and his representative a SOC that addresses the issue of entitlement to an effective date prior to July 21, 2017; for the grant of service connection for epilepsy. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration. 3. Then, the record should again be reviewed. If any benefit sought on appeal remains denied, the Veteran and his attorney should be furnished with a supplemental statement of the case and be given the opportunity to respond. Sarah Campbell Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. McDuffie, 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.