Citation Nr: 21070224 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 18-51 435 DATE: November 23, 2021 ORDER New and material evidence having been received, the claim for entitlement to service connection for hepatitis C is reopened. Service connection for hepatitis C is denied. REMANDED Entitlement to service connection for gastroesophageal reflux disorder (GERD) as a result of exposure to herbicide agents or as secondary to service-connected post-traumatic stress disorder (PTSD) is remanded. Entitlement to service connection for irritable bowel syndrome (IBS) as a result of exposure to herbicide agents or as secondary to service-connected PTSD is remanded. Entitlement to a compensable rating for herpes progenitalis is remanded. FINDINGS OF FACT 1. In unappealed June 1971 and December 1975 rating decisions, service connection for hepatitis was denied. 2. A lay statement added to the record since the prior final denials relates to unestablished facts necessary to substantiate the claim. 3. The preponderance of the evidence is against a finding that the Veteran has a current disability resulting from an in-service diagnosis of infectious hepatitis. CONCLUSIONS OF LAW 1. New and material evidence has been received sufficient to reopen the Veteran's claim for entitlement to service connection for hepatitis C. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for service connection for hepatitis C have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5103, 5103a, 5107; 38 C.F.R. §§ 3.102, 3.103, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Air Force from October 1967 to May 1971. These matters come before the Board of Veterans Appeals (Board) on appeal from April 2018 and June 2018 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). A July 2019 Board decision denied the hepatitis C claim to reopen. The Veteran appealed to the Court of Appeals for Veterans Claims (Court) which, pursuant to a December 2020 Memorandum Decision, set aside and remanded the claim. The denial of an increased rating claim for PTSD was affirmed by the Court and is not currently before the Board. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). New and Material Evidence Generally, a claim which has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). An 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 VA Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence means evidence not previously submitted. Material evidence means existing evidence that by itself or when considered with previous evidence 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 final decision, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). If the evidence is new, but not material, the inquiry ends, and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." The Court further held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). As a final matter before turning to the specific facts of the Veteran's case, the Board notes that it has considered the applicability of 38 C.F.R. § 3.156(b), which provides that when new and material evidence is received prior to the expiration of the appeal period it will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. In the instant case, no new and material evidence was submitted within the relevant appeal periods. Accordingly, 38 C.F.R. § 3.156(b) is not applicable. See Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). The Veteran's original claim for service connection for hepatitis was submitted in May 1971. His service treatment records (STRs) included normal pre-induction and service entrance examinations. Records reflected that he was hospitalized for 36 days from October 1970 to December 1970 for infectious hepatitis. The last notation regarding hepatitis symptomology occurred in January 1971. The May 1971 separation examination did not reflect any current residuals of hepatitis or other defects. In a June 1971 rating decision, the RO denied service connection on the basis that while the STRs showed that the Veteran was treated for the condition in service, it had resolved by discharge. The Veteran did not appeal the decision or submit any new and material evidence within the one-year appeal period. As such, the June 1971 decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 3.104, 20.302, 20.1103. In October 1973, the Veteran filed a claim to reopen the hepatitis claim, and in support, submitted a September 1973 laboratory report which he asserted revealed that he had a liver abnormality. No other treatment records reflecting a current liver abnormality or hepatitis were added to the record. A VA examination was scheduled, however the Veteran failed to report. In a December 1975 decision, the RO denied the claim. The Veteran did not appeal the decision or submit any new and material evidence within the one-year appeal period. As such, the December 1975 decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 3.104, 20.302, 20.1103. In November 2017, the Veteran filed a claim to reopen the hepatitis claim which was again denied by the RO in a June 2018 rating decision. Evidence added to the record since the December 1975 decision included a statement by the Veteran in which he reasserted that he contracted and was hospitalized for hepatitis C while in the Republic of Vietnam (Vietnam) but that he did not have any post-service treatment for hepatitis C and thought that he had been cured during service. He stated, however, that shortly after separation, he attempted to donate blood but was denied because he was told that the virus was in his blood. He also submitted an article stating that veterans are at a greater risk of being infected with hepatitis C virus than the general population and discussing the risk factors for developing the virus, including blood-to-blood contact from military training and combat. Additional evidence added to the record since the prior final decision included a May 2018 VA examination and VA treatment records. New and material evidence having been received, the claim for entitlement to service connection for hepatitis C is reopened. The Board finds that the Veteran's November 2017 statement describing a post-service positive result for hepatitis while attempting to donate blood represents new and material evidence that relates to unestablished facts necessary to substantiate the claim. The prior final rating decisions determined that although infectious hepatitis was diagnosed during service, there was no evidence of an ongoing condition at separation. The Veteran's description of the blood donation incident suggests ongoing symptomology since the in-service diagnosis. As noted above, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. at 513. As such, the Board finds that evidence added to the record since the last final denial relates to unestablished facts necessary to substantiate his claim. Accordingly, the service connection claim is therefore reopened. Service Connection Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 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). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d at 1376-77. When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1376-77. VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As noted above, the Veteran's STRs reflected a hospitalization for 36 days from October 1970 to December 1970 for infectious hepatitis. The last notation regarding hepatitis symptomology occurred in January 1971. The May 1971 separation examination did not reflect any current residuals of hepatitis or other defects. In November 2017, the Veteran described an incident in which he attempted to donate blood shortly after separation and was denied due to the hepatitis virus being present in his blood. A VA examination was conducted in May 2018. The Veteran had no signs or symptoms attributable to chronic or infectious liver disease. He told the examiner that the symptoms of his in-service hepatitis had resolved and he had not required ongoing medical care since separation. The examiner stated that it was conceded that the Veteran had an episode of acute infectious hepatitis during active duty. He had characteristic symptoms, including jaundice. It was not specific to any of the likely viral organisms of hepatitis A, B, or C. Blood work testing was conducted. The examiner explained that a reactive hepatitis A Igg test indicated that the Veteran had had hepatitis A at some time in the past. Hepatitis A is "fecal-oral" and is transmitted primarily by contaminated food. It therefore was a candidate for the cause of the Veteran's episode of acute infectious hepatitis during active duty. The examiner continued that hepatitis A does not have a chronic state in the fashion of hepatitis B or C and it resolves without sequelae. As such, the Veteran would not have experienced an ongoing health condition from the acute episode. The pattern of the hepatitis B testing indicated that the Veteran had had hepatitis B infection at some time in the past. Therefore, hepatitis B was a candidate for the cause of the Veteran's episode of acute infectious hepatitis during active duty. The non-reactive antigen test, however, indicated that the infection resolved and had not developed into a chronic infection. The Veteran did not have chronic hepatitis B. As such, he would not have experienced an ongoing health condition from the acute episode in service. Additionally, there was no evidence upon testing of a hepatitis C infection in the past or the present. Therefore, it was very unlikely that the Veteran had a hepatitis C infection at any time. As such, it was very unlikely that hepatitis C was the cause of the in-service episode of acute infectious hepatitis. The blood testing for liver function showed no abnormalities. There was no evidence by history or by testing of liver injury or liver dysfunction caused by the episode of acute infectious hepatitis. This was consistent with the history given by the Veteran and blood testing results. The examiner determined that it was not possible to establish whether the organism that caused his in-service episode of acute infectious hepatitis was hepatitis A or B. It was possible, however, to say that it was very unlikely that hepatitis C was the cause of the episode. It was also possible to establish that the episode was acute and resolved without sequelae. This was true for both hepatitis A and B. Independent of the specific causal organism, the episode was not the cause of an ongoing, chronic liver disease disability. In summary, the Veteran did not have an ongoing chronic disability condition due to or caused by the episode of acute infectious hepatitis during active duty. VA treatment records did not reflect any current diagnosis of hepatitis or other liver disease. Service connection for hepatitis C is denied. Based on the foregoing, the Board finds that service connection for hepatitis C is not warranted. The Veteran was diagnosed with infectious hepatitis during active service and he described a positive indication of the virus in his blood shortly post-service. However, blood testing has established that he has not had hepatitis C either in the past or currently. As such, with no clinical evidence of hepatitis C, service connection cannot be granted for a current disability at any point during the appeal period. The Board has also considered whether another hepatitis virus warrants service connection. As noted by the VA examiner, blood testing results indicated that the Veteran had hepatitis A and B at some point in the past. However, hepatitis A does not cause chronic conditions and resolves without sequelae. As such, if it was the cause of his in-service infectious hepatitis, it would not result in a current disability. Further, the non-reactive antigen test for hepatitis B indicated that the infection resolved and had not developed into a chronic infection. As such, service connection cannot be granted for a current hepatitis B disability at any point during the appeal period. The Board also notes that there was no evidence in the record of liver abnormality or dysfunction or other residuals resulting from the in-service incident of infectious hepatitis. Indeed, the only residuals noted were that the Veteran is now immune from both hepatitis A and B viruses. Accordingly, the Board finds that there is no evidence of a chronic hepatitis or liver condition resulting from the diagnosis of infectious hepatitis in service. Therefore, the preponderance of the evidence is against a finding of service connection. REASONS FOR REMAND 1. Entitlement to service connection for GERD as a result of exposure to herbicide agents or as secondary to service-connected PTSD is remanded. 2. Entitlement to service connection for IBS as a result of exposure to herbicide agents or as secondary to service-connected PTSD is remanded. The Veteran originally claimed service connection for IBS and GERD as due to his herbicide agent exposure in Vietnam. In a July 2020 statement, the Veteran's representative contended that these disorders were caused or aggravated by his service-connected PTSD. In support, several articles and treatises were submitted suggesting connections between the conditions. The Veteran has not been afforded a VA examination regarding his claims. The Board finds that the low threshold to trigger a VA examination has been met. See McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006). Upon remand, a VA examination and opinion should be sought which considers all theories of entitlement raised by the record. 3. Entitlement to a compensable rating for herpes progenitalis is remanded. The Veteran underwent a VA examination in March 2018. Upon physical observation, there were no visible skin conditions and the examiner determined that the diagnosis of herpes progenitalis was not active. However, the Veteran described intermittent outbreaks over the years that seemed to be brought on by hot weather and irritation. The examiner did not obtain any information regarding the frequency, severity, duration, or affected body area during these flare-ups. The Board finds that a new examination is needed to attempt to determine the extent and severity of the service-connected disability during outbreak periods. To the extent possible, an examination should be conducted during hot weather. If that is not possible, or if an outbreak is not occurring at the time of the examination, the examiner should elicit information from the Veteran to determine the extent of the disability during such exacerbations. The matters are REMANDED for the following action: 1. Associate with the claims file outstanding VA treatment records, to include records since February 2020. 2. Schedule the Veteran for a VA examination to assess the nature and etiology of his claimed GERD and IBS. The claims file should be made available to the clinician for review of the case. The examiner is asked to provide a response to the following: (a.) Whether the Veteran has current diagnoses of IBS and GERD. (b.) Whether it is at least as likely as not that the claimed IBS and GERD are the result of his active service, to include presumed exposure to herbicide agents. In so rendering the opinion, the clinician is reminded that the fact that IBS and GERD are not on the presumptive list of conditions due to herbicide agent exposure cannot by itself be the sole basis for a negative nexus opinion. Rather, the clinician should consider the Veteran's specific military history, medical history, risk factors, and any other circumstances deemed relevant by the clinician in rendering an opinion. See Polovick v. Shinseki, 23 Vet. App. 48, 52-53 (2009). (c.) Whether it is at least as likely as not that the claimed IBS and GERD were proximately caused or aggravated (i.e., worsened beyond natural progression) by service-connected PTSD. The examiner is specifically asked to address the articles and treatises submitted by the Veteran in support of his claims. The VA examiner is cautioned that the term "aggravated," as used in 38 C.F.R. § 3.310(b), does not require that there be "permanent worsening" of the nonservice-connected disability. Instead, secondary service connection is warranted for "any incremental increase in disability and any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence." See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). The clinician is advised that the Veteran is competent to report his symptoms and history, and such reports should be acknowledged and considered in formulating any opinion. If medical literature is relied upon in rendering this determination, the clinician should identify and specifically cite each reference material used. All opinions should be accompanied by supporting rationale explaining how the examiner arrived at the conclusions expressed. If the clinician determines that s/he cannot provide an opinion without resorting to speculation, the clinician should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. 3. Schedule the Veteran for a VA examination with an appropriate VA clinician to determine the extent and severity of his service-connected herpes progenitalis. Attempts should be made to schedule the examination during a period of hot weather, if possible. The claims file should be made available to the clinician for review of the case. All necessary testing should be accomplished. The examiner is asked to provide a response to the following: (a.) If the examination is conducted during a flare-up of the condition, determine the total body area and exposed body area affected by the condition; or (b.) If the examination is not conducted during a flare-up of the condition, based on relevant information elicited from the Veteran, review of the file, and the current examination results, provide an estimate of total body area and exposed body area affected by the condition during exacerbations of the disability. 4. Ensure that the requested opinions are associated with the claims file. After completing the above, and any additionally indicated development, readjudicate the claims. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Rachel E. Jensen, 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.