Citation Nr: 21022291 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 10-45 982 DATE: April 15, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for hepatitis C is reopened. New and material evidence having been received, the claim of entitlement to service connection for depression is reopened. New and material evidence having been received, the claim of entitlement to service connection for posttraumatic stress disorder (PTSD) is reopened. REMANDED Entitlement to service connection for hepatitis C is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include depression and PTSD, is remanded. Entitlement to service connection for a right hand disorder, to include dermatitis and xerosis, is remanded. Entitlement to service connection for a left hand disorder, to include dermatitis and xerosis, is remanded. Entitlement to service connection for a left foot disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a right leg disability is remanded. Entitlement to service connection for dizzy spells is remanded. FINDINGS OF FACT 1. In an August 2006 rating decision, the Regional Office (RO) denied service connection for, in pertinent part, hepatitis C, depression, and PTSD. The Veteran did not timely appeal this decision, nor did he submit new and material evidence within one year of the decision. 2. Additional evidence has been received since the August 2006 rating decision that relates to unestablished facts necessary to substantiate the claims for service connection for hepatitis C, depression, and PTSD. CONCLUSIONS OF LAW 1. The August 2006 rating decision that denied service connection for hepatitis C, depression, and PTSD is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence to reopen the claims for service connection for hepatitis C, depression, and PTSD has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1974 to April 1980. These matters arose to the Board of Veterans’ Appeals (Board) from a February 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a June 2018 hearing. A transcript of that hearing is associated with the record. In November 2018, the Board remanded the appeal for further evidentiary development. New and Material Evidence 1. Whether new and material evidence was received to reopen the claim of entitlement to service connection for hepatitis C 2. Whether new and material evidence was received to reopen the claim of entitlement to service connection for depression 3. Whether new and material evidence was received to reopen the claim of entitlement to service connection for PTSD The Veteran seeks entitlement to service connection for hepatitis C and for an acquired psychiatric disorder, to include depression and PTSD. Implicit in these claims is the contention that new and material evidence has been received which is sufficient to reopen previously disallowed claims for these benefits. Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 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, VA 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). An adjudicator must follow a two-step process in evaluating a previously denied claim. First, the adjudicator must determine whether the evidence added to the record since the last final denial is new and material. If new and material evidence is presented or secured with respect to a claim that has been finally denied, the claim will be reopened and decided upon the merits. Once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all the evidence, both new and old, after ensuring that the VA’s statutory duty to assist the appellant in the development of his claim has been fulfilled. See 38 U.S.C. § 5108; Elkins v. West, 12 Vet. App. 209 (1999); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, 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 the VA Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence must be both new and material; if the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). The Veteran filed claims for service connection for, in pertinent part, hepatitis C, depression, and PTSD in March 2006; these claims were denied in an August 2006 rating decision on the basis that there was no causal nexus between the disorders and the Veteran’s service. The Veteran was notified but did not appeal the decision. Accordingly, the August 2006 rating decision is final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Subsequently, the Veteran filed the instant application to reopen his claims. As part and parcel of that application, the Veteran provided testimony at his Board hearing in support of his claims. Regarding his hepatitis C, he testified that he believed he contracted the disease from air gun inoculations in service; he noted they “never changed the needles” during these inoculations. He also denied engaging in other risky behaviors, including tattoos and intravenous drug use. Regarding his acquired psychiatric disorder, the Veteran testified that he suffered traumatic experiences in service, including poor treatment by a superior officer from which he still has nightmares. Essentially, he asserted that he had experienced mental health distress since service. These assertions, which the Board presumes are credible, constitute evidence of previously unestablished elements of the claims (namely, a nexus between the claimed disabilities and the Veteran’s service). The claims will be reopened. REASONS FOR REMAND 4. Entitlement to service connection for hepatitis C is remanded. The Veteran contends he contracted hepatitis C in service as a result of multiple air gun inoculations. His service treatment records show no indication of a diagnosis of hepatitis. Post-service records indicate he was diagnosed in the late 1990s. Nonetheless, VA’s duty to assist a claimant 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. § 5103A(d)(1); 38 C.F.R. § 3.159(c)(4). The medical examination provided must be thorough and contemporaneous and consider prior medical examination and treatment. Green v. Derwinski, 1 Vet. App. 121 (1991). The Veteran is competent to report receiving air gun inoculations in service. Moreover, the Board cannot substitute its own judgment on medical matters. Colvin v. Derwinski, 1 Vet. App. 171 (1991). Accordingly, the Board finds the Veteran should be afforded a VA examination to evaluate the likely etiology of his hepatitis C. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir 2007) (noting a layperson is competent to report what he/she was told by a medical professional); VBA Fast Letter 04-13 (June 29, 2004) (recognizing as a “biologically plausible” transmitter of hepatitis C in-service air gun inoculations). 5. Entitlement to service connection for an acquired psychiatric disorder, to include depression and PTSD, is remanded. The Veteran contends he has had mental health problems due to traumatic experiences in service, include abusive treatment by a superior officer; he reported repeatedly “butting heads” with the officer and suffering depression as a result. (His personnel records indicate the Veteran was disciplined on multiple occasions, consistent with his testimony.) At the outset, the Board has characterized his claimed disorder more broadly, pursuant to Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The Veteran’s recent VA medical records show ongoing treatment for major depressive disorder, alcohol and drug dependence, and insomnia; it is unclear whether he has been diagnosed with PTSD. The Veteran has not been afforded a VA examination to evaluate his acquired psychiatric disorder/s. In light of the evidence provided by the Veteran at his hearing, the Board finds such an examination is warranted. See McClendon, 20 Vet. App. at 81. 6. Entitlement to service connection for a right hand disorder, to include dermatitis and xerosis, is remanded. 7. Entitlement to service connection for a left hand disorder, to include dermatitis and xerosis, is remanded. The Veteran contends he suffers from a bilateral hand disorder, to include dermatitis and xerosis, that originally developed in service as a result of cleaning mortar barrels. He specifically testified that he noticed drying and peeling in the skin on his hands, as well as a black ring that persisted since service. The Veteran’s VA medical records show ongoing treatment for skin problems during the pendency of his appeal. In addition, his service treatment records include numerous reports of skin problems (though admittedly not involving the hands). The Veteran has not been afforded a VA examination to evaluate his symptoms. In light of the Veteran’s testimony and the supporting medical evidence noted above, the Board finds such an examination is warranted. See McClendon, 20 Vet. App. at 81 8. Entitlement to service connection for a left foot disability is remanded. 9. Entitlement to service connection for a right knee disability is remanded. 10. Entitlement to service connection for a right hip disability is remanded. 11. Entitlement to service connection for a right leg disability is remanded. The Veteran’s VA medical records show he has been seen repeatedly for foot, knee, hip, and leg pain. In 2012, X-rays showed mild degenerative changes in his right knee. At his Board hearing, the Veteran testified these disabilities originated in service when he injured himself falling off an armored personnel carrier. He further explained that although he was hurting following this incident, he did not seek treatment because doing so was frowned upon. The Veteran has only been afforded one VA examination, in September 2020, pertaining to his right knee disability. The report notes the Veteran’s descriptions of an injury three years prior to an in-service diagnosis of chondromalacia in 1977; he reported experiencing right knee symptoms since that time. On examination, the Veteran was given a diagnosis of right knee strain; the examiner opined this disability was less likely than not related to service, apparently on the basis that a recent X-ray revealed normal findings. On review, the Board finds an updated VA examination is in order. As noted above, the examiner based a negative nexus opinion on recent, “normal” X-ray findings. However, this rationale does not meaningfully evaluate the Veteran’s symptomatology, to include his assertions of continuous symptoms since service. (Normal X-rays do not preclude disability, much less pain.) Moreover, the examiner does not adequately explain why the Veteran’s current right knee strain is unrelated to the documented in-service injury; the “normal” X-rays have no bearing on this issue. With respect to the Veteran’s claimed left foot, right hip, and right leg disabilities, the Board finds initial VA examinations are warranted. The Veteran testified he injured himself in service and explained why he did not seek treatment. His VA records demonstrate current disabilities, or at least pain, during the appeal period. Moreover, the Veteran explained at his hearing that he believed these disabilities were intertwined with his right knee disability. The Board finds VA’s duty to assist requires appropriate examinations. See id. 12. Entitlement to service connection for dizzy spells is remanded. The Veteran contends he suffers from dizzy spells stemming from an in-service head injury. Notably, his service treatment records indicate that on one occasion he injured his head and suffered persistent headaches. On another occasion, in January 1977, a service treatment note shows the Veteran was seen after blacking out for one to two minutes. The Veteran has not been provided a VA examination to evaluate these symptoms. In light of the Veteran’s contentions and the documented in-service evidence discussed above, the Board finds such an examination is warranted in this case. See id. The matters are REMANDED for the following action: 1. Obtain updated VA medical records pertaining to the Veteran, to include records dating from December 2020 to the present. 2. Schedule the Veteran for a VA examination by an examiner to determine the nature and etiology of the Veteran’s hepatitis C. The examiner is asked to review the claims file and provide the following information: (a) State whether the criteria for a diagnosis of hepatitis C are met. (b) Opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s hepatitis C was incurred in or otherwise related to his service. Specifically discuss his contention that he contracted hepatitis C as a result of air gun inoculations in service. Also discuss VBA Fast Letter 04-13 (June 29, 2004), which recognized air gun inoculations as a “biologically plausible” transmitter of hepatitis C. (c) The examiner should specifically discuss any pertinent lay statements provided by the Veteran in support of his claim, including statements regarding the chronology of his symptoms and any risk factors for contracting hepatitis C. (d) If there is another etiology identified for the Veteran’s disability, that should be noted. The examiner should set forth all examination findings, with a clear, detailed, and fact-based rationale for the conclusions reached. 3. Contact the Veteran and request that he provide additional information pertaining to his in-service PTSD stressors. Take all necessary steps to investigate and/or verify any reported in-service stressors. 4. Then, once directive (3) is accomplished, schedule the Veteran for a VA examination by an examiner to determine the nature and etiology of any acquired psychiatric disorder/s, to include depression and PTSD. The examiner is asked to review the claims file and provide the following information: (a) State whether the criteria for a diagnosis of any acquired psychiatric disorder/s are met, to include PTSD. (b) Opine whether it is at least as likely as not (50 percent or greater probability) that any acquired psychiatric disorder/s were incurred in or otherwise related to his service. Specifically discuss his reports of harsh treatment by superior officers in service, as well as his reports of mental health symptomatology in service, continuing to the present day. (c) With respect to PTSD, the RO should provide the examiner with a summary of any verified in-service stressors and the examiner must be instructed that only these events, or any stressor related to fear of hostile military or terrorist activity, may be considered for the purpose of determining whether exposure to an in-service stressor has resulted in PTSD. The examiner should determine whether the diagnostic criteria to support a diagnosis of PTSD have been satisfied. If a PTSD diagnosis is deemed appropriate, the examiner should then comment upon the link between the current symptomatology and any verified in-service stressor, including the fear of hostile military or terrorist activity. (d) The examiner should specifically discuss any pertinent lay statements provided by the Veteran in support of his claim, including statements given at his Board hearing. (e) If there is another etiology identified for the Veteran’s disability, that should be noted. The examiner should set forth all examination findings, with a clear, detailed, and fact-based rationale for the conclusions reached. 5. Schedule the Veteran for a VA examination by an examiner to determine the nature and etiology of the Veteran’s bilateral hand disorders, to include dermatitis and xerosis. The examiner is asked to review the claims file and provide the following information: (a) State whether the criteria for a diagnosis of any bilateral hand disorders, to include skin problems, are met. (b) Opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral hand disorders were incurred in or otherwise related to his service. Specifically discuss the documented reports of treatment in service for skin problems on various areas of the body. (c) The examiner should specifically discuss any pertinent lay statements provided by the Veteran in support of his claim, including statements regarding the chronology of his symptoms. (d) If there is another etiology identified for the Veteran’s disability, that should be noted. The examiner should set forth all examination findings, with a clear, detailed, and fact-based rationale for the conclusions reached. 6. Schedule the Veteran for a VA examination by an examiner to determine the nature and etiology of the Veteran’s right knee disability. The examiner is asked to review the claims file and provide the following information: (a) State whether the criteria for a diagnosis of a right knee disability are met. (b) Opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s right knee disability was incurred in or otherwise related to his service, include treatment in 1977 for chondromalacia. (c) The examiner should specifically discuss any pertinent lay statements provided by the Veteran in support of his claim, including his reports of continuous right knee symptoms since service. (d) If there is another etiology identified for the Veteran’s disability, that should be noted. The examiner should set forth all examination findings, with a clear, detailed, and fact-based rationale for the conclusions reached. 7. Schedule the Veteran for VA examinations by examiner/s to determine the nature and etiology of the Veteran’s left foot, right hip, and right leg disabilities. The examiner is asked to review the claims file and provide the following information: (a) State whether the criteria for diagnoses of left foot, right hip, and/or right leg disabilities are met. (b) Opine whether it is at least as likely as not (50 percent or greater probability) that any of these disabilities were incurred in or otherwise related to service, to include as a result of the injury specified by the Veteran at his Board hearing. (c) The examiner should specifically discuss any pertinent lay statements provided by the Veteran in support of his claim, to include his reports of continuous symptoms since service. (d) If there is another etiology identified for the Veteran’s disabilities, that should be noted. The examiner should set forth all examination findings, with a clear, detailed, and fact-based rationale for the conclusions reached. 8. Schedule the Veteran for a VA examination by an examiner to determine the nature and etiology of the Veteran’s dizzy spells. The examiner is asked to review the claims file and provide the following information: (a) State whether the criteria for a diagnosis of a disorder manifested by dizzy spells are met. (b) Opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s dizzy spells were incurred in or otherwise related to his service. Specifically discuss service treatment records which document treatment for a head injury with subsequent headaches as well as a January 1977 incident in which the Veteran experienced a blackout for one to two minutes. (c) The examiner should specifically discuss any pertinent lay statements provided by the Veteran in support of his claim, including statements regarding the chronology of his symptoms. (Continued on the next page)   (d) If there is another etiology identified for the Veteran’s disability, that should be noted. The examiner should set forth all examination findings, with a clear, detailed, and fact-based rationale for the conclusions reached. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Ryan, 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.