Citation Nr: 21064540 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 19-07 682 DATE: October 20, 2021 ORDER As new and material evidence has been received, the claim of entitlement to service connection for hepatitis C is reopened. Entitlement to service connection for hepatitis C is granted. Entitlement to service connection for lumbar spine degenerative disc disease and degenerative joint disease is granted. REMANDED Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total rating for compensation purposes based on individual unemployability due to service connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. A January 2001 rating decision denied service connection for hepatitis C. The Veteran did not submit a timely notice of disagreement and the January 2001 rating decision is final. 2. The additional evidence received since the January 2001 rating decision is new and material. 3. Hepatitic C originated during active service. 4. Lumbar spine degenerative disc disease and degenerative joint disease originated during active service. CONCLUSIONS OF LAW 1. The January 2001 rating decision that denied service connection for hepatitic C is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence to reopen the claim for service connection for hepatitis C has been presented. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for hepatitis C are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for lumbar spine degenerative disc disease and degenerative joint disease are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1966 to February 1968. He served in the Republic of Vietnam. Application to Reopen Service Connection for Hepatitis C Generally, absent the filing of a notice of disagreement within one year of the date of mailing of the notification of the initial review and determination of an appellant's claim and the subsequent filing of a timely substantive appeal, a rating determination is final and is not subject to revision upon the same factual basis except upon a finding of clear and unmistakable error. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 20.200, 20.300, 20.1103. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means 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. There is a low threshold to raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010); Evans v. Brown, 9 Vet. App. 273 (1996); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). In regards to pending legacy claims not under the modernized review system, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans' Appeals (Board) without consideration in that decision in accordance with the provisions of 38 C.F.R. § 20.1304(b)(1) will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). A January 2001 rating decision denied service connection for hepatitis C "as the evidence does not show that the Veteran's hepatitis C was contracted while on active duty." The Veteran was informed in writing of the adverse decision and his appellate rights. The Veteran did not submit a notice of disagreement with the decision. The evidence considered by the Agency of Original Jurisdiction in reaching the January 2001 rating decision consists of service treatment records, service personnel records, Department of Veterans Affairs (VA) clinical and examination records, private clinical documentation, and written statements from the Veteran. The service treatment records do not refer to hepatitis C. A September 2000 treatment record from T. Bader, M.D., states that the Veteran was initially diagnosed with hepatitis C in July 2000. The Veteran's risk factors for hepatitis C were noted to be prior blood transfusions received after a motorcycle accident and "exposure from body bag detail in Vietnam for one year." The report of a November 2000 VA examination states that the Veteran was initially diagnosed with hepatitis C in July 2000. The examiner concluded that "the most likely risk factor for contracting infection of hepatitis C in this case would be the history of intravenous drug abuse." New and material evidence pertaining to the issue of service connection for hepatitic C was not received by VA or constructively in its possession within one year of written notice to the Veteran of the January 2001 rating decision. Therefore, that decision became final. 38 C.F.R. § 3.156(b). Additional evidence received since the January 2001 rating decision includes VA examination and treatment records, private clinical documentation, and written statements from the Veteran. A March 2015 written statement from R. Iverson, Ph.D., the Veteran's treating psychologist, conveys that "although I am not a medical expert on the contraction of hepatitis C, from my over thirty years' experience as a forensic evaluator for the Superior Court, the assertion that [the Veteran] contracted hep C from intravenous heroin usage, which he denies, rather than during his extensive exposure to blood during combat, is not forensically supported." The Board finds that Dr. Iverson's March 2015 written statement to be of such significance that it raises a reasonable possibility of substantiating the claim for service connection for hepatitis C when considered with the evidence previously of record. The documentation addresses the reason of the previous denial as it shows that hepatitis C originated during active service. As new and material evidence has been received, the claim of entitlement to service connection for hepatitis C is reopened. The Board will now address the issue of service connection on the merits. The Veteran asserts that service connection for hepatitis C is warranted secondary to his combat related blood exposure in the Republic of Vietnam. Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The service treatment records do not refer to hepatitis C. The service personnel record indicate that the Veteran served with the Army in the Republic of Vietnam between September 1966 and August 1967. He was attached to a transportation company and his military occupation was light vehicle driver. An August 2000 written statement from Dr. Bader notes that he was the author of an "entire textbook on viral hepatitis entitled Viral Hepatitis: Practical Evaluation and Treatment." He noted that the Veteran had served in the Republic of Vietnam and related having been "in transportation and being in a body bag detail for one year where he was responsible for picking up bloody corpses." The doctor stated that "I believe that it was quite possible this was his source of acquiring hepatitis C" and "many authorities feel that cirrhosis takes 25 30 years (plus or minus 5 years) to develop and this suggests acquisition around 1968 being entirely possible." Clinical documentation from Dr. Bader dated in September 2000 conveys that the Veteran's hepatitic C risk factors included blood transfusion and exposure from body bag detail in Vietnam. The Veteran denied a history of intravenous drug use. The report of the December 2000 VA examination states that the Veteran was initially diagnosed with hepatitis C in July 2000. The examiner commented that: "the most likely risk factor for contracting infection of hepatitis C in this case would be the history of intravenous drug abuse;" "in that the risk of contracting hepatitis C from intravenous drug abuse exposure is approximately 40%.;" "this would represent the most likely risk factor in this case;" "if the Veteran did have a history of blood transfusions, the risk of contracting hepatitis C through this risk factor would be approximately 1% per unit of transfused blood;" and "had he received a two unit transfusion in the past then the risk of contracting hepatitis C through a blood transfusion would be approximately 2%." A February 2001 VA hepatology clinic evaluation relates that the Veteran reported that he had spent one year in the Republic of Vietnam on a "body bag detail." He denied intravenous drug use. The Veteran's hepatitis C risk factors were noted to be a blood transfusion, surgery, blood exposure on body bag detail, and air gun vaccinations. The treating VA physician commented that; "I can neither confirm nor deny that this patient's infection was or was not acquired during his military service;" "he has fibrosis consistent with a long term hepatitis C virus infection, but it is not possible to determine the nature of exposure;" and "he has multiple risk factors including a possible blood transfusion and surgeries prior to 1990, air gun vaccinations, blood exposures in battle field conditions, and a disputed history of intravenous drug abuse." In March 2015 the Veteran's private psychologist opined that it was more likely that the Veteran contracted hepatitis C during service when he had extensive exposure to blood. The evidence of record is in relative equipoise as to whether the diagnosed hepatitis C originated during active service. While the service documentation does not reflect that the Veteran's military duties encompassed handling dead bodies and VA examiners have attributed the onset of the claimed disability to post service intravenous drug abuse, the Veteran's private physician, a published author on viral hepatitis C, and other private care providers have concluded that the hepatitis C, which had a 25 to 30 year latency period, was incurred during active service. Resolving all reasonable doubt in the Veteran's favor, the Board concludes that service connection for hepatitis C is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Service Connection for a Recurrent Lumbar Spine Disability The Veteran asserts that service connection for a recurrent lumbar spine disability is warranted as lumbar spine trauma and an associated recurrent lumbar spine disability are documented in the service treatment records. The report of the July 1967 physical examination for service entrance reflects that no lumbar spine abnormalities were diagnosed or other noted. Therefore, the Veteran is entitled to the presumption of soundness. A veteran who served after December 31, 1946, is presumed to be in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious and manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in the examination reports are to be considered as noted. 38 U.S.C. §§ 1111, 1137; 38 C.F.R. § 3.304. The presumption of soundness attaches only where there has been an induction examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The provisions of 38 C.F.R. § 3.304(b) clarify that the term "noted" denotes "[o]nly such conditions as are recorded in the examination reports" and that "[h]istory of pre-service existence of conditions recorded at the time of the examination does not constitute a notation of such conditions." Crowe v. Brown, 7 Vet. App. 238, 245 (1994); See also Contant v. Principi, 17 Vet. App. 116 (2003). When no preexisting condition is noted upon entry into service, a veteran is presumed to have been found sound upon entry. The burden then falls on the Government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service. If this burden is met, then the veteran is not entitled to service connection benefits. However, if the Government fails to rebut the presumption of soundness under section 1111, the veteran's claim is one for service connection. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The service treatment records indicate that the Veteran complained of lumbar spine pain. A May 1967 treatment record states that the Veteran was involved in a motor vehicle accident in which his truck rolled over and he struck his head on the windshield. The Veteran was kept for a period of observation and diagnosed with a post traumatic headache. The report of the January 1968 physical examination for service separation relates that the Veteran reported "recurrent back pain secondary to an injury in Vietnam." On physical examination, the Veteran was found to exhibit a normal spine. The report of a September 2012 computerized tomography study from D. McAninch, M.D., conveys that the Veteran was diagnosed with lumbar spine spinal degenerative disc disease and degenerative joint disease. The report of a March 2014 spine examination conducted for VA states that the Veteran reported that he had injured his lumbar spine when "a tree branch fell on his mid back during" a firefight in the Republic of Vietnam in 1967. The Veteran was diagnosed with lumbar spine degenerative disc disease. The examiner concluded that "the Veteran's back condition is less likely as not incurred in or caused by injury in service." The doctor commented that "the Veteran's C-file noted no back complaints and exit examination showed no back problems." The examiner did not note or otherwise address either the May 1967 motor vehicle accident or the notation of "recurrent back pain secondary to an injury in Vietnam" in the report of the physical examination for service separation. Therefore, the Board finds that the examination report to be of limited probative value. An October 2017 VA spine evaluation concludes that "the Veteran's current low back condition is at least as likely as not partially due to the reports of recurrent back pain on the separation examination medical history." The examiner clarified that: "based on the accumulated evidence of record in conjunction with the evidence-based medical literature, the Veteran has an underlying condition of juvenile arthritis with symptoms including chronic back pain, and signs" and "given that the recurrent back pain noted at separation from service was most likely due to his juvenile arthritis condition (which pre-existed service), and given that his current back condition, 'thoracolumbar degenerative disc disease and herniated disc L4-5,' is partially due to his juvenile arthritis condition, the current back condition is partially related to the complaints of back pain in service." The Board is unable to identify the evidence used to diagnosis the Veteran with juvenile arthritis. Given this deficiency, the evaluation is of limited probative value. The Board finds that the record does not contain clear and unmistakable evidence showing that a recurrent lumbar spine disability both preexisted service entrance and was not aggravated by active service. Therefore, the Board finds that the presumption of soundness as to a recurrent lumbar spine disability has not been rebutted. The Veteran sustain trauma in a May 1967 motor vehicle accident. At service separation, the Veteran reported "recurrent back pain secondary to an injury in Vietnam." He has been diagnosed with lumbar spine degenerative disc disease and degenerative joint disease. Therefore, the Board finds the evidence is in at least equipoise as to whether the lumbar spine disability originated during active service. Resolving all reasonable doubt in the Veteran's favor, the Board concludes that service connection for lumbar spine degenerative disc disease and degenerative joint disease is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to a rating in excess of 50 percent for PTSD is remanded. The Veteran contends that a rating in excess of 50 percent for PTSD is warranted as the service connected disability is productive of significant symptoms affecting his social and occupational activities. An August 2018 VA mental health clinic treatment record states that the Veteran reported recurrent suicidal thoughts. VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The Veteran was last afforded a VA psychiatric examination in April 2018. In light of the clinical documentation noting an increase in the severity of the service connected psychiatric disability since that examination, the Board finds that further VA psychiatric evaluation is needed. Clinical documentation dated after January 2019 is not of record. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran's claims. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). 2. Entitlement to a TDIU. Entitlement to a TDIU requires an accurate assessment of the impairment associated with all of the service-connected disabilities. In light of the grant of service connection for both hepatitis C and lumbar spine degenerative disc disease and degenerative joint disease above and as the claim is inextricably intertwined with other issue being remanded, the claim for a TDIU must be remanded. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for each private healthcare provider who treated him for the service connected psychiatric disability. Make two requests for the authorized records from all identified healthcare providers unless it is clear after the first request that a second request would be futile. 2. Obtain any VA treatment records not of record, to include those pertaining to treatment after January 2019. 3. Schedule the Veteran for a VA psychiatric examination to ascertain the current severity of PTSD. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Opine as to the level of occupational and social impairment caused by the service connected psychiatric disability and describe the frequency and severity of symptoms resulting in those levels of impairment. (b) Opine as to the impact of PTSD on the Veteran's vocational pursuits and whether it is at least as likely as not (50 percent or greater probability) that the Veteran is unable to secure or follow a substantially gainful occupation due to the combined impact of his service-connected disabilities. If the Veteran is felt capable of work despite the service connected disabilities, the examiner should describe what type of work and what accommodations would be necessary due to the service connected disabilities. J. T. HUTCHESON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Smith, 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.