Citation Nr: 21069321 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 16-58 852A DATE: November 18, 2021 ORDER New and material evidence not having been received, the application to reopen the claim of entitlement to service connection for infectious hepatitis is denied. Service connection for syphilis is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. FINDINGS OF FACT 1. In a final rating decision issued in August 1970, the Agency of Original Jurisdiction (AOJ) denied service connection for infectious hepatitis. 2. Evidence added to the record since the final August 1970 denial, and associated December 1970 statement of the case, is cumulative and redundant of the evidence of record at the time of the decision and does not raise a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for infectious hepatitis. 3. At no time during the pendency of the claim does the Veteran have a current disability of syphilis, and the record does not contain a recent diagnosis of disability prior to the Veteran's filing of a claim. CONCLUSIONS OF LAW 1. The August 1970 rating decision that denied service connection for infectious hepatitis is final. 38 U.S.C. § 4005(c) (1970); 38 C.F.R. § §§ 3.104, 19.118, 19.153 (1970). 2. New and material evidence has not been received to reopen a claim of entitlement to service connection for infectious hepatitis. 38 U.S.C. § 5108; 38 C.F.R § 3.156(a). 3. The criteria for service connection for syphilis have not been met. 38 U.S.C. 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1968 to March 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. In this regard, the Board notes that an August 2013 provisional rating decision found that new and material evidence had not been received to reopen such previously denied claim and denied service connection for an acquired psychiatric disorder. Such was made final by way of the June 2014 rating decision, which the Veteran appealed. Thus, as the August 2013 rating decision was provisional and the Veteran appealed the June 2014 rating decision, the claim for service connection for an acquired psychiatric disorder will be reviewed on a de novo basis. In July 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. At such time, the Veteran submitted additional evidence and waived AOJ consideration of the evidence associated with the record since the issuance of the October 2016 statement of the case. 38 C.F.R. § 20.1305(c). 1. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for infectious hepatitis. By way of background, VA received the Veteran's original claim for service connection for infectious hepatitis in March 1970. In an August 1970 rating decision, the AOJ noted that, while his service treatment records (STRs) showed that he was hospitalized in August 1968 for infectious hepatitis, his liver function returned to normal in October 1968 and a May 1970 VA examination showed no residuals of such infection. In this regard, the Veteran's STRs reveal that, from August 1968 to October 1968, he was hospitalized for infectious hepatitis. He also reported in his November 1969 Report of Medical History completed at the time of separation that he had or was then having stomach, liver, or intestinal trouble as he had hepatitis in service and continued to have occasional right upper quadrant pains. However, his contemporaneous Report of Medical Examination and May 1970 VA examination revealed that he had a normal clinical evaluation. Thus, the AOJ concluded that, as infectious hepatitis was not found on the last examination, service connection for such disorder was not warranted. In August 1970, the Veteran was advised of the decision and his appellate rights, and entered a notice of disagreement with the denial in November 1970. However, following the issuance of a December 1970 statement of the case, which continued the denial of service connection for infectious hepatitis on the same basis, the Veteran did not file a timely substantive appeal of the issue. Furthermore, no new and material evidence was physically or constructively received within the remainder of the appeal period, and no relevant service department records have since been received. Therefore, the August 1970 rating decision is final. 38 U.S.C. § 4005(c) (1970); 38 C.F.R. §§ 3.104, 19.118, 19.153 (1970). Generally, a claim which has been denied in an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 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. New evidence means existing evidence not previously submitted to agency decisionmakers. 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. 38 C.F.R. § 3.156(a). New evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence received since the final August 1970 rating decision includes lay statements from the Veteran, his family members, and his friends indicating he had infectious hepatitis during his military service, which are duplicative of the evidence previously of record reflecting in-service treatment for such disease. Additionally, while the Veteran has reported that he has symptoms indicative of a hepatitis infection, to include lethargy, flu-like symptoms, and abdominal pain, such statements are likewise duplicative of those previously of record detailing his argument that he continued to have a hepatitis infection. Furthermore, while VA treatment records have also been received since the prior final denial, such are negative for any complaints, treatment, or diagnosis referable to infectious hepatitis, or residuals thereof. Rather, such reflect a history of hepatitis in 1968 that was eradicated. In this regard, at the July 2021 Board hearing, the Veteran testified that, while he was treated for symptoms in the 1980's and 1990's from physicians whose records are unavailable, he has not had a diagnosis of hepatitis or an active infection in the last 10 years. Consequently, such newly received evidence still fails to show a current infectious hepatitis disability, or residuals thereof, related to the Veteran's military service. Therefore, evidence added to the record since the final August 1970 denial, and associated December 1970 statement of the case, is cumulative and redundant of the evidence of record at the time of the decision and does not raise a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for infectious hepatitis. Therefore, new and material evidence has not been received to reopen the claim, and his appeal must be denied. 2. Entitlement to service connection for syphilis. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Pertinent to a claim for service connection, such a determination requires a finding of a current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Under applicable regulation, the term "disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995); Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (the term "disability" as used in 38 U.S.C. § 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability," and held that "pain alone can serve as a functional impairment and therefore qualify as a disability"). In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the United States Court of Appeals for Veterans Claims (Court) held that the requirement of the existence of a current disability is satisfied when a claimant has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. However, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a claimant filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. The Veteran is seeking service connection for syphilis. In this regard, his STRs reveal that, in November 1968, he was seen for a bump on the head of his penis for the past 4 days. However, examination revealed no abnormalities, and he had no dysuria on discharge. Thus, the clinician noted that no treatment was necessary. His STRs are otherwise negative for any complaints, treatment, or diagnoses that may be indicative of the presence of syphilis. Furthermore, the Veteran has not reported that he has a current diagnosis of syphilis, or persistent or recurrent symptoms thereof, and no post-service treatment records demonstrating such a diagnosis, or relevant complaints thereof, are on file. Additionally, during the July 2021 Board hearing, the Veteran testified that he was last treated for syphilis 15 years ago, which is well prior to the receipt of his current claim in October 2013, and he had no current symptoms that he believed were indicative of syphilis. Consequently, the Board finds that at no time during the pendency of the claim did the Veteran have a current disability of syphilis, and the record does not contain a recent diagnosis of disability prior to the filing of a claim. See McClain, supra; Romanowsky, supra. Therefore, service connection for such disorder is not warranted. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim for service connection for syphilis. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 3. Entitlement to service connection for an acquired psychiatric disorder. The Veteran contends he has an acquired psychiatric disorder that is directly related to his military service, to include as a result of witnessing a soldier who was returning from Vietnam die while he was hospitalized with infectious hepatitis from August 1968 to October 1968, being sucker punched by another soldier in September 1969, and having multiple childhood friends die while serving in Vietnam. In the alternative, the Veteran alleges that his acquired psychiatric disorder is secondary to his infectious hepatitis and/or syphilis. However, as the Board herein determined that service connection for such disorders is not warranted, he lacks legal grounds to establish entitlement to service connection for an acquired psychiatric disorder as secondary to infectious hepatitis and/or syphilis. See Sabonis v. Brown, 6 Vet. App. 426 (1994). In this regard, as indicated previously, the Veteran's STRs reflect that he was hospitalized for infectious hepatitis from August 1968 to October 1968, and he was hit in the left eye by another soldier resulting in a diagnosis of undisplaced fracture of the left zygomatico-maxillary complex in September 1969. Additionally, his post-service VA treatment records, to include those dated in September 2016, indicate that he has been diagnosed with an acquired psychiatric disorder, to include generalized anxiety disorder (GAD) and unspecified mood disorder. Further, a January 2014 letter from the Veteran's VA clinical social worker indicated that he had treated him since February 2011 and he had symptoms of bipolar disorder. Thus, in light of the Veteran's reported in-service events that he argues led to his acquired psychiatric disorder, two of which are corroborated by his STRs, and a current diagnosis of an acquired psychiatric disorder, the Board finds that a remand is warranted to afford him a VA examination to determine the nature and etiology of his acquired psychiatric disorder. The matter is REMANDED for the following action: Schedule the Veteran for a VA examination to determine the nature and etiology of his acquired psychiatric disorder. The record, to include a copy of this Remand, must be made available to the examiner, and any indicated evaluations, studies, and tests should be conducted. Thereafter, the examiner should address the following inquiries: (A) Identify all of the Veteran's acquired psychiatric disorders that meet, or have met, the DSM-5 diagnostic criteria at any time since December 2011, or in close proximity thereto, to include GAD, unspecified mood disorder, and/or bipolar disorder as evidenced by his treatment records. (B) For each currently diagnosed acquired psychiatric disorder, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disorder had its onset in, or is otherwise related to the Veteran's military service, to include witnessing another soldier returning from Vietnam die in the hospital while he was hospitalized from August 1968 to October 1968, being sucker punched in the eye by another servicemember in September 1969, and/or his childhood friends dying while serving in Vietnam. In rendering his or her opinion, the examiner is advised that the sole basis of a negative opinion cannot be the fact that the Veteran's STRs are silent as to any acquired psychiatric disorder or complaints thereof. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Clark 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.