Citation Nr: 21069630 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 18-06 303 DATE: November 19, 2021 ORDER Entitlement to a compensable evaluation for pancreatitis is denied. New and material evidence having been received, the petition to reopen the previously denied claim of entitlement to service connection for Hepatitis C is granted. REMANDED Entitlement to service connection for Hepatitis C as secondary to pancreatitis is remanded. Entitlement to service connection for diabetes mellitus as secondary to pancreatitis is remanded. Entitlement to service connection for erectile dysfunction as secondary to diabetes mellitus is remanded. Entitlement to service connection for an eye condition as secondary to diabetes mellitus is remanded. FINDINGS OF FACT 1. The Veteran's service-connected pancreatitis is resolved and is not manifested by at least one recurring attack of typical severe abdominal pain confirmed as resulting from pancreatitis by appropriate laboratory and clinical studies in any twelve month period at any time during the pendency of the appeal. 2. In a June 2010 rating decision, the Veteran's claim of entitlement to service connection for Hepatitis C was denied. The Veteran did not perfect an appeal of the decision, and it became final. 3. New and material evidence was received after the final rating decision. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for pancreatitis have not been met at any time during the pendency of the appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.114, Diagnostic Code 7347. 2. The June 2010 rating decision denying the Veteran's claim of entitlement to service connection for Hepatitis C are final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 3. As new and material evidence has been submitted, the criteria for reopening the claim of service connection for Hepatitis C are met. 38 U.S.C. § 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1970 to April 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. Increased Rating Criteria Disability evaluations are determined by applying the criteria set forth in the Schedule for Rating Disabilities to the Veteran's current symptomatology. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. 1. Entitlement to a compensable evaluation for pancreatitis In June 2014, the Veteran filed an increased rating claim, seeking a compensable disability rating for his service-connected pancreatitis. At the July 2021 Board hearing, the Veteran testified that he has stomach pains once or twice each week, and he drinks milk to help treat the pain. His pancreatitis is rated as noncompensable under 38 C.F.R. § 4.114, Diagnostic Code 7347, which provides that where there are frequently recurrent disabling attacks of abdominal pain with few pain free intermissions and with steatorrhea, malabsorption, diarrhea and severe malnutrition, a 100 percent rating is warranted. Frequent attacks of abdominal pain, loss of normal body weight, and other findings showing continuing pancreatic insufficiency between acute attacks warrants a 60 percent rating. Moderately severe pancreatitis with at least 4-7 typical attacks of abdominal pain per year with good remission between attacks warrants a 30 percent rating. At least one recurring attack of typical severe abdominal pain in the past year warrants a 10 percent rating. Abdominal pain must be confirmed as resulting from pancreatitis by appropriate laboratory and clinical studies. 38 C.F.R. § 4.114, Note 1. With the above criteria in mind, the Board finds that the Veteran's pancreatitis has not been manifested by at least one recurring attack or typical severe abdominal pain in the past year and therefore, a higher 10 percent rating is not warranted.' During an October 2014 VA examination, the Veteran was noted to have been diagnosed with pancreatitis around 1971 or 1972, but it has since resolved. The VA examiner stated that there were no medical records at the time documenting pancreatitis. Further, the Veteran denied having any other episodes of pancreatitis. Private medical records from July 2014 indicate the Veteran denied having abdominal pain or stomach cramps. VA treatment notes from October 2014 show the Veteran denied having any abdominal pain. During a follow up visit for Hepatitis C in February 2015, the Veteran reported having stomach aches. However, there is no indication that the Veteran nor the treating physician associated his stomach aches with any pancreatitis residuals. He again denied experiencing abdominal pain in December 2015 and November 2016. The Veteran was afforded another VA examination in February 2018, and it was again noted that his pancreatitis was resolved without residuals. The Veteran reported that during the last five years, his stomach aches have caused him to wake up during the early morning hours, and resolve after an hour once he gets out of bed. He noted he had not sought medical treatment for his stomach aches. The VA examiner determined there were no signs and symptoms associated with a pancreas condition. The VA examiner also stated that the Veteran does not currently have pancreatitis, and his current abdominal pain symptoms are not typical of pancreatitis. In sum, the preponderance of the evidence is against finding that the Veteran currently has pancreatitis and/or residuals of pancreatitis to warrant a compensable rating. The Board acknowledges the Veteran's reports of experiencing stomach pains, which he believes are a symptom of pancreatitis. However, the Veteran does not have the requisite medical knowledge or background to determine the source of his abdominal pain. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007. The Board affords more probative weight to the February 2018 VA examiner's assessment and the objective medical evidence of record, which fails to show the Veteran has had pancreatitis since the 1970s, or that his current stomach aches are associated with the service-connected condition. Accordingly, the Board finds that a compensable disability rating is not warranted at any time during the period under consideration for the Veteran's service-connected pancreatitis. Reopening Previously Denied Claim Criteria A finally adjudicated claim may be reopened if the claimant submits new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 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. 38 C.F.R. § 3.156 (a). The provisions of 38 C.F.R. § 3.156 (a) create a low threshold, with the phrase "raise a reasonable possibility of substantiating the claim" enabling rather than precluding reopening and not constituting a third requirement that must be met before the claim is reopened. Shade v. Shinseki, 24 Vet. App. 110 (2010). 2. The petition to reopen the previously denied claim of entitlement to service connection for Hepatitis C The claim of service connection for Hepatitis C was denied in a June 2010 rating decision. The Veteran did not initiate an appeal or submit new and material evidence within one year of the decision, and it became final. 38 C.F.R. § 3.156 (b). In June 2014, the Veteran petitioned to reopen the previously denied claim. Evidence submitted since the final rating decision includes VA and private medical treatment notes, VA examination reports, private medical assessments, lay statements, and testimony from the July 2021 Board hearing. Given that the threshold for substantiating a claim to reopen is low, the evidence associated with the claims file since the prior denial, when considered by itself or in connection with evidence previously assembled, relates to an unestablished fact necessary to substantiate the claims for service connection and raises a reasonable possibility of substantiating the claims. Thus, the claim of entitlement to service connection for Hepatitis C is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS FOR REMAND 1. Entitlement to service connection for Hepatitis C as secondary to pancreatitis is remanded. The Veteran asserts that he is entitled to service connection for Hepatitis C as secondary to service-connected pancreatitis. The Board finds that additional development is required to determine whether the Veteran has current residuals of Hepatitis C and whether he had an active Hepatitis C diagnosis at any point during the appeal period. The record shows the Veteran learned of his Hepatitis C diagnosis in 1987 when he was notified by the American Red Cross. It is not clear from the available records when he actually contracted the virus. VA treatment notes indicate he did not receive treatment until 2015 and that the condition may now be resolved. Additionally, no VA medical opinion has been obtained regarding the etiology of the Veteran's Hepatitis C and whether it was the result of or aggravated by his service-connected pancreatitis. Therefore, remand is required. 2. Entitlement to service connection for diabetes mellitus as secondary to pancreatitis is remanded. During the July 2021 Board hearing, the Veteran identified relevant outstanding private treatment records. Specifically, he testified that his private physician determined that his diabetes mellitus developed due to his service-connected pancreatitis. As those records have not been associated with the record, remand is required to allow VA to obtain authorization and request these records. 3. Entitlement to service connection for erectile dysfunction as secondary to diabetes mellitus is remanded. 4. Entitlement to service connection for an eye condition as secondary to diabetes mellitus is remanded. Finally, because a decision on the remanded issue of service connection for diabetes mellitus could significantly impact a decision on the issues of service connectiuon for erectile dysfunction and an eye condition, the issues are inextricably intertwined. A remand of the claims is required. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for the private physician who indicated his diabetes mellitus is related to his service-connected pancreatitis. Make two requests for the authorized records from the identified physician unless it is clear after the first request that a second request would be futile. 2. Afford the Veteran a VA examination to determine whether he has a current diagnosis of Hepatitis C or, if the condition has resolved, state when the condition resolved. Additionally, identify whether the Veteran has any Hepatitis C residuals. 3. For any current Hepatitis C disability or residuals found to be diagnosed, the examiner should provide the following opinions: (a.) Is Hepatitis C and/or residuals of Hepatitis C at least as likely as not proximately due to service-connected disability pancreatitis? (b.) Is Hepatitis C and/or residuals of Hepatitis C at least as likely as not aggravated, i.e., worsened beyond its natural progression, by service-connected pancreatitis? (c.) A complete rationale for all opinions must be provided. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Miller, 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.