Citation Nr: 21008431 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 16-28 905 DATE: February 17, 2021 ORDER The petition to reopen the claim of entitlement to service connection for hepatitis based on the submission of new and material evidence is granted. REMANDED Entitlement to service connection for residuals of hepatitis is remanded. FINDING OF FACT 1. An unappealed February 1972 rating decision denied service connection for residuals of hepatitis. 2. Evidence received since the February 1972 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for residuals of hepatitis. CONCLUSION OF LAW 1. The February 1972 rating decision denying service connection for residuals of hepatitis is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence sufficient to reopen the claim of service connection for residuals of hepatitis has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1969 through September 1971. This matter came before the Board of Veterans’ Appeals (Board) on appeal of an August 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio which denied reopening of a February 1972 decision denying service connection for residuals of infectious hepatitis. After a timely appeal to the Board, the Veteran was afforded a hearing before the undersigned in March 2017. A copy of the transcript is of record. In October 2018, the Board denied reopening the claim based on a lack of new and material evidence. The Veteran subsequently appealed to the U.S. Court of Appeals for Veterans Claims (CAVC) who issued a March 2020 decision remanding the case back to the Board. The case is now before the Board. The issue of entitlement to service connection for residuals of hepatitis is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. The petition to reopen the claim of entitlement to service connection for hepatitis based on the submission of new and material evidence New and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, “credibility” of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The Board is required to give consideration to all of the evidence received since the first denial of the claim in light of the totality of the record. See Hickson v. West, 12 Vet. App. 247, 251 (1999). In this regard, the Court in Shade v. Shinseki, 24 Vet. App. 110 (2010) held that the language of 38 C.F.R. § 3.156 (a) created a low threshold and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Further, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. In a February 1972 rating decision, service connection for residuals of hepatitis was denied. The Veteran was notified of the decision and he did not appeal. The February 1972 rating decision is final. The evidence of record at the time of the February 1972 decision included military personnel records, service treatment records including a January 1971 report of jaundice, a January 1972 report of medical examination from the Veteran wherein he reported symptoms from hepatitis, and a January 1972 request for physical examination due to symptoms from hepatitis to include recurrent nausea and vomiting. The claim for service connection for residuals of hepatitis was denied because there was no current disability. In September 1994, the Veteran applied to reopen his previously denied claim for service connection for residuals of hepatitis. The additional evidence received in support of his claim include multiple statements from the Veteran wherein he reports symptoms of hepatitis and effects thereof, a statement from an unidentified third party received in September 1994, and service treatment records. The RO denied the claim because there was a lack of new and material evidence to support a current disability. In March 2012, the Veteran applied to reopen his previously twice denied claim for service connection for residuals of hepatitis. The additional evidence received in support of his claim include VA treatment records dated November 2006 through February 2012. The Board concludes there is sufficient evidentiary basis to reopen the Veteran’s claim on appeal as the evidence could reasonably substantiate the claim were the claim to be reopened by triggering VA’s duty to assist. As discussed in the remand below, an additional VA medical opinion should be obtained in this matter as to the hepatitis risk factors. REASONS FOR REMAND 2. Entitlement to service connection for residuals of hepatitis is remanded. Regarding the issue of service connection for residuals of hepatitis, the Board finds that a remand is necessary to obtain an adequate VA opinion as to the etiology of the Veteran’s residuals of hepatitis. At his March 2017 hearing, the Veteran testified that he contracted hepatitis while in active service in Vietnam. He testified that he does not know the origin of his but contended that the conditions of the mess hall were unsanitary and likely contributed to his contracting hepatitis. He further asserted that he was hospitalized for five months and that his vomiting symptoms continued for the next four years. Upon review of the evidence, the Board finds that the record is absent a medical opinion diagnosing the Veteran with hepatitis or residuals thereof. The Board notes that it is VA’s duty to assist a claimant and this includes providing a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d)(1); 38 C.F.R. § 3.159(c). Additionally, the medical examination must be thorough and contemporaneous and should consider prior medical examination and treatment. Green v. Derwinski, 1 Vet. App. 121 (1991). The Board has determined that the “low threshold” necessary to establish entitlement to a VA medical examination in connection with the Veteran’s claim of service connection for residuals of hepatitis has been satisfied. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir 2007) (noting that a layperson is competent to report what he/she was told by a medical professional). As such, the entire claims file should be provided to a VA physician to obtain a medical opinion regarding the likely etiology of the Veteran’s hepatitis. By this remand, the Board makes no determination, express or implied, concerning the credibility of any statements on file. The matters are REMANDED for the following action: 1. With any necessary identification of sources by the Veteran, request all VA treatment records not already associated with the file from the Veteran’s VA treatment facilities, and all private treatment records from the Veteran not already associated with the file. 2. Then, schedule the Veteran for a VA examination by an examiner with appropriate expertise. The electronic claims file should be made accessible to, and reviewed by, the designated examiner. The examiner should examine the Veteran and conduct all necessary laboratory testing. The examiner should discuss the etiology and the onset of the Veteran’s hepatitis. A history of all of the Veteran’s potential risk factors of hepatitis infection should be detailed in full and the examiner must list and discuss all documented and reported pre-service, in-service, and post-service risk factors. The examiner should then rank the documented risk factors relative to the probability that any hepatitis infection(s) is etiologically related to the risk factors. The examiner is then requested to provide an opinion as to whether it is at least as likely as not that any diagnosed hepatitis is related to the Veteran’s active military service. The bases for the opinion provided should be explained in detail. If the examiner determines that he/she cannot provide an opinion on the issue at hand without resorting to speculation, the examiner 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 rendered because the limits of medical knowledge have been exhausted regarding the etiology of the diagnosed disorder or whether additional testing or information could be obtained that would lead to a conclusive opinion. (The AOJ should ensure that any additional evidentiary development suggested by the examiner should be undertaken so that a definitive opinion can be obtained.) 3. Then, readjudicate the claim on appeal. If any decision remains averse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, if applicable, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112. Thomas H. O’Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Hamilton, 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.