Citation Nr: 21014825 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 16-60 015 DATE: March 15, 2021 ORDER Reopening of a previously denied claim for service connection for hepatitis C is denied. REMANDED The claim for a rating in excess of 30 percent for the residuals of laceration of the right wrist and the third and fourth fingers of the right hand based on neurological impairment is remanded. The claim for a rating in excess of 50 percent for major depressive disorder is remanded. The claim for a finding of total disability based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. In an unappealed May 2003 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for hepatitis C on the grounds that diagnosed hepatitis C was not etiologically linked to active service. 2. Evidence received since May 2003 is redundant of evidence previously considered, or fails to raise any reasonable possibility of substantiating the claim of service connection for hepatitis C. CONCLUSIONS OF LAW 1. The RO’s May 2003 rating decision denying service connection for hepatitis C is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.1103. 2. Evidence submitted since May 2003 with regard to service connection for hepatitis C is not new and material; and the claim is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army on active service from November 1976 to March 1983. This appeal comes before the Board of Veterans Appeals (Board) from rating decisions of a VA RO dated in April 2013 and March 2017. The April 2013 rating decision declined to reopen the previously denied claim for service connection for hepatitis C and denied a rating in excess of 30 percent for the residuals of laceration to the right wrist and right third and fourth fingers, evaluated as neurological impairment. The March 2017 rating decision denied a rating in excess of 50 percent for major depressive disorder, and entitlement to TDIU. In December 2020, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing has been made and is associated with the claims file. The Board finds that the agency of original jurisdiction (AOJ) has fulfilled the duty to notify and assist the Veteran in substantiating his claim for VA benefits, as prescribed in 38 U.S.C. §§ 5100, 5102, 5103, 5109A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). All identified and relevant records, including records from the Social Security Administration have been obtained or appropriate efforts to secure them have been undertaken. Regarding the previously denied claim, the Veteran is not entitled to examination prior to the submission of new and material evidence. See 38 U.S.C. § 5103A(d), 38 C.F.R. § 3.159(c)(4), and McLendon v. Nicholson, 20 Vet. App. 79 (2006). Neither the Veteran nor his representative have argued against a finding that the AOJ has not ultimately met its duty to assist. The Board thus finds that the AOJ has met its duty to assist and further remand is not required. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). “New evidence” is existing evidence not previously submitted; “material evidence” is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. The May 2003 rating decision denied service connection on the grounds that there were neither findings of hepatitis C during active service nor evidence of risk factors such as blood transfusions or needle sticks. In addition, the 2003 VA examiner observed there was no evidence of blood transfusion in service or suggestion of an injury that would cause the development of hepatitis C. Finally, the Veteran reported abusing alcohol and cocaine for ten years. Therefore, the evidence showed that hepatitis C neither occurred in nor was caused by active service. The Veteran did not appeal or submit relevant evidence within a year, and the May 2003 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Since May 2003, the Veteran has reiterated previously considered theories of service connection for hepatitis C, including testifying in November 2020 that he was immunized with an air gun, and that he received blood transfusions during active service. However, as the Veteran’s reported exposures have already been considered, they are not new, and cannot support the reopening of the previously denied claim; he did not add any details or information shedding new light on these allegations. In addition, private and VA treatment records received since the May 2003 rating decision continue to report current and historical hepatitis C infection and treatment. This medical evidence is new, in that it has not been of record before. However, it is not material. While these records document past and present diagnoses of hepatitis and of treatment for the disease (both facts already of record in 2003), there are no statements, findings, or opinions that, by themselves or when considered with previous evidence of record, establish that the diagnosed hepatitis is causally related active service. As such, this medical evidence cannot substantiate the Veteran’s claim for service connection for hepatitis. Absent evidence that the diagnosed and treated hepatitis C is causally linked to active service, reopening the previously denied claim for service connection for hepatitis C is not appropriate. Accordingly, the previously denied claim for service connection for hepatitis C is not reopened. The claim is denied. REASONS FOR REMAND The Veteran testified before the undersigned that his service-connected residuals of laceration of the right wrist and the third and fourth fingers of the right hand and his major depressive disorder have worsened since his last VA examinations for the disabilities. He further testified that he was medically retired from work in 2017. Concerning the service-connected right wrist and finger lacerations, VA treatment records show the Veteran underwent right open carpal tunnel and cubital tunnel release surgery in April 2018. In addition, his VA physician reported in a 2020 statement that the Veteran requires a brace on his right arm following the surgery and that he suffered a cerebrovascular accident affecting his left side. Concerning the service-connected major depressive disorder, the Veteran has reported worsening depression due to difficulties with his service-connected right hand, as well as increased difficulties in getting along with others. In his testimony, he described a conflict with his supervisor at work that led him to leave his job in 2016. He testified, and evidence of record shows, he was subsequently granted medical retirement in 2017. The most recent VA examinations for both disabilities is in March 2017, following his termination of employment but prior to additional surgery and prior to his award of disability retirement. Crucially, the most recent clinical tests, to include electromyography and nerve conduction studies, were conducted in 2015. Concerning the claim for TDIU, the Veteran meets the schedular criteria under 38 C.F.R. § 4.16(a). In addition, as noted above, the Veteran testified that he left his job due to his service-connected right wrist and hand disability and major depressive disorder. However, since the last VA examinations of record, the Veteran has required additional surgery on his right hand, wrist, and forearm, and has sustained a cerebrovascular accident. Therefore, the Board is unable to determine whether the Veteran is unable to work solely due to service-connected disabilities without further medical examination and opinion. Moreover, the Veteran has asserted his service-connected major depressive disorder has increased in severity. The Board finds it prudent to await adjudication of TDIU until his claim for increased is adjudicated. Therefore, new VA examinations are required to provide the Board an adequate basis upon which to adjudicate his claims. Barr v. Nicholson, 21 Vet. App. 303 (2007). The matters are REMANDED for the following action: 1. Obtain the Veteran’s disability retirement decision and supporting evidence, including all associated medical records, from VA Medical Center, Kansas City and/or the Office of Personnel Management. 2. Take appropriate steps to identify and obtain VA and identified private treatment records related to treatment of the right hand/wrist and depression. Surgical and rehabilitation records must be specifically requested. 3. Then, schedule the Veteran for VA hand and fingers examination to determine the nature and extent of impairment resulting from the service-connected residuals of laceration of the right wrist and the third and fourth fingers of the right hand. The claims folder must be reviewed in its entirety. All indicated tests and studies must be conducted. All hand, wrist, and finger impairment arising from the service-connected laceration residuals must be identified. The examiner must comment on the impact of the service connected disabilities, individually and in combination, on the Veteran’s ability to function in work-related tasks (e.g., sitting, standing, walking, bending, stooping, lifting, cognitive functioning, attendance, etc.). A full and complete rationale for any opinion expressed is required. 4. Schedule the Veteran for VA peripheral nerves examination to determine the nature and extent of neurological impairment resulting from the service-connected residuals of laceration of the right wrist and the third and fourth fingers of the right hand. The claims folder must be reviewed in its entirety. All indicated tests and studies must be conducted. All neurological impairment arising from the in-service injury must be identified. The VA examiner is asked to distinguish the impairment of the in-service injury residuals from the impairment of the post-service 1998 crush injury to the right forearm, and subsequently diagnosed right carpal tunnel and right cubital tunnel syndromes. Specific attention is directed to the April 1982 in-service documentation of surgical repair of the lacerated right median nerve and flexor pollicis longus, 1998 private medical records documenting surgery and treatment of the industrial accident to the right forearm, 2018 VA operative report for right carpal tunnel and right cubital tunnel release, and other relevant treatment records. If it is not possible to distinguish the neurological impairment of the in-service injury from the post-service 1998 injury or the subsequent right carpal tunnel and cubital tunnel syndrome, the examiner is asked to so state. The examiner must comment on the impact of the service connected disabilities, individually and in combination, on the Veteran’s ability to function in work-related tasks (e.g., sitting, standing, walking, bending, stooping, lifting, cognitive functioning, attendance, etc.). A full and complete rationale for any opinions expressed is required. 5. Schedule the Veteran for VA muscle examination to determine the nature and extent of any muscle impairment resulting from the service-connected residuals of laceration of the right wrist and the third and fourth fingers of the right hand. The claims folder must be reviewed in its entirety. All indicated tests and studies must be conducted. All muscle impairment arising from the in-service injury, as opposed to a 1998 crush injury, must be identified. The examiner must comment on the impact of the service connected disabilities, individually and in combination, on the Veteran’s ability to function in work-related tasks (e.g., sitting, standing, walking, bending, stooping, lifting, cognitive functioning, attendance, etc.). A full and complete rationale for any opinions expressed is required. 6. Schedule the Veteran for VA psychiatric examination to determine the nature and extent of impairment resulting from the service-connected major depressive disorder. The examiner must comment on the impact of the service connected disabilities, individually and in combination, on the Veteran’s ability to function in work-related tasks (e.g., sitting, standing, walking, bending, stooping, lifting, cognitive functioning, attendance, etc.). A full and complete rationale for any opinion expressed is required. 7. Readjudicate the claims on appeal. If any matter remains denied, issue a supplemental statement of the case and return the appeal to the Board for further consideration. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Bakke, Lila J. 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.