Citation Nr: 21023271 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-08 178 DATE: April 20, 2021 ORDER New and material evidence having been submitted, the claim of entitlement to service connection for hepatitis C is reopened. To this extent only, the claim is granted. Entitlement to a compensable disability evaluation for service-connected status post appendectomy scar is denied. REMANDED Entitlement to service connection for a liver condition, to include hepatitis C and cirrhosis, is remanded. Entitlement to compensation under 38 U.S.C. § 1151 for a left eye condition is remanded. Entitlement to service connection for neuropathy, to include as secondary to service-connected degenerative disc disease and degenerative arthritis of the lumbar spine, is remanded. Entitlement to service connection for a heart condition is remanded. Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. A July 2014 rating decision denied service connection for hepatitis C. The Veteran did not appeal the decision. 2. Evidence received since the July 2014 rating decision relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for hepatitis C and raises a reasonable possibility of substantiating the claim. 3. The Veteran’s service-connected status post appendectomy scar is not of sufficient size to warrant a compensable evaluation and it is not painful or unstable. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for hepatitis C. 38 U.S.C. § 5108 (2017); 38 C.F.R. § 3.156. 2. The criteria for entitlement to a compensable disability evaluation for service-connected status post appendectomy scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.118, Diagnostic Codes 7801-7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1974 to May 1977. Evidence affiliated with the claims file also indicates that the Veteran served in the Reserve. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from November 2012 and April 2017 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded the matter of entitlement to TDIU in December 2019. 1. New and Material Evidence – Hepatitis C Under 38 U.S.C. § 5108 (2017), VA may reopen a previously and finally disallowed claim when “new and material” evidence is presented or secured with respect to that claim. This requires a review of all evidence submitted by or on behalf of a claimant since the last final denial regardless of whether the denial was on the merits or on procedural grounds to determine whether a claim may be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). VA regulation defines “new and material evidence” as follows: “new evidence” means evidence not previously submitted to agency decisionmakers, and “material evidence” means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). To warrant reopening, the new evidence must 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. Id.; see Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (holding that there is a “low threshold” for reopening). To establish whether new and material evidence has been submitted, the credibility of the evidence is to be presumed, unless it is inherently false or untrue, or, if it is a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Although the RO reopened the claim in a June 2016 rating decision, the Board must independently decide whether new and material evidence has been submitted that warrants reopening of the Veteran’s claim regardless of the RO’s decision. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The Veteran’s claim for service connection for hepatitis C was originally denied on the merits in a July 2014 rating decision on the basis that his service treatment records did not contain complaints, treatment, or diagnosis for that condition. See July 2014 Rating Decision. The Veteran was notified of the RO’s decision that same month and did not appeal further. Therefore, the July 2014 rating decision is final. See 38 U.S.C. § 7104; 38 C.F.R. § 20.1103. The Veteran petitioned to reopen the claim in February 2016. Although the RO reopened the claim in a June 2016 rating decision, the Board must independently decide whether new and material evidence has been submitted that warrants a reopening of the Veteran’s claim. The relevant evidence submitted since the July 2014 rating decision consists of various lay statements by the Veteran and medical records reflecting his diagnosis and treatment for hepatitis C and additional liver conditions (see below). This evidence, evidence not previously submitted to decisionmakers and relating to unestablished facts necessary to support the claim (i.e., whether the Veteran has a current diagnosis in addition to the onset and continuity of his symptomatology), raises a reasonable possibility of substantiating the claim and the Board finds that it constitutes new and material evidence. See 38 C.F.R. § 3.156(a). Accordingly, as the Board finds that new and material evidence has been submitted, the claim for service connection for hepatitis C is reopened. Id. 2. Increased Rating for Status Post Appendectomy Scar Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civilian occupations resulting from such diseases and injuries, and their residual conditions. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate Diagnostic Codes (DCs) identify various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran’s service-connected status post appendectomy scar is evaluated pursuant to Diagnostic Code 7805. DC 7805 provides that disabling effect(s) of scars not considered in a rating provided under the Diagnostic Codes for the skin should be rated under an appropriate Diagnostic Code. Effective August 13, 2018, revisions were made to the criteria for evaluating scars. The phrase “nonlinear” was removed from Diagnostic Codes 7801 and 7802, the term “deep” in Diagnostic Code 7801 was replaced with “associated with underlying soft tissue damage,” and the term “superficial” in Diagnostic Code 7802 was replaced with “not associated with underlying soft tissue damage.” Otherwise, the measurements and criteria for the specific percentages remain the same. 38 C.F.R. § 4.118, Diagnostic Codes 7801-7804 (2018). Diagnostic Code 7801 provides that scars that are associated with underlying soft tissue damage with an area of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.) warrant a 10 percent evaluation; scars associated with underlying soft tissue damage with an area of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.) warrant a 20 percent evaluation; scars associated with underlying soft tissue damage with an area of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.) warrant a 30 percent evaluation; and scars associated with underlying soft tissue damage with an area of greater than 144 square inches (929 sq. cm.) warrant a 40 percent evaluation. Pursuant to DC 7802, scars that are not associated with underlying soft tissue damage with an area of 144 square inches (929 sq. cm.) or greater warrant a 10 percent evaluation. Under Diagnostic Code 7804, a 10 percent evaluation is warranted for one or two scars that are unstable or painful; a 20 percent evaluation is warranted for three or four scars that are unstable or painful; and a 30 percent evaluation is warranted for five or more scars that are unstable or painful. See 38 C.F.R. § 4.118. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. See 38 C.F.R. § 4.118, DC 7804, Note (1). Here, the Veteran was examined for his scar from his in-service appendectomy in May 2016, at which time the scar measured 10 by 0.1 cm. During this examination, the Veteran denied experiencing any problems associated with his scar. The examiner found the scar to not be painful or unstable as defined in the regulations. Additionally, the Veteran’s scar, as noted above, has not measured an area that would require a compensable evaluation pursuant to DC 7801 or 7802. Because the Veteran’s scar was neither painful nor unstable, his scar does not warrant a compensable evaluation pursuant to DC 7804. The Veteran’s medical records do not show any recurring problems related to the Veteran’s scar or loss of covering of skin over the scar. While the Veteran wrote in June 2017 that his surgery required burning away nerve endings internally, which caused pain, and that he still has sudden pain at times, and in June 2019 wrote that he still has pain around his liver since his surgery in service, it does not appear that the pain the Veteran is describing is actually pain caused by the scar tissue itself. The Veteran is competent to report on matters observed or within his personal knowledge, such as feeling pain in his abdominal area. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). But he is not competent to provide the etiology of this disorder, and he acknowledges in his lay statements that this is a sudden, internal pain that he does not appear to actually relate as being caused by the scar itself. The Board finds that the opinion of VA examiner who performed the May 2016 examination outweighs the Veteran’s more general lay statements, and finds that the most probative evidence indicates that the Veteran’s appendectomy scar is stable and nonpainful. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board therefore finds that the preponderance of the most probative evidence indicates that a compensable evaluation for the Veteran’s service-connected status post appendectomy scar is not warranted. See 38 C.F.R. § 4.118, Diagnostic Codes 7801-7805. REASONS FOR REMAND As a preliminary matter, the Board acknowledges that there is evidence of record indicating that, after his active duty service, the Veteran was transferred to serve in the Reserve from May 1977 to April 1980. See April 1977 Letter from Department of the Army; see also April 1980 Letter from the Department of the Army Reserve Components Personnel and Administration Center. Even though there are service treatment records and service personnel records reflecting the Veteran’s education, performance, assignments, points, and awards; the precise dates of all periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) are not available. On remand, the Agency of Original Jurisdiction (AOJ) should confirm the Veteran’s periods of ACDUTRA and INACDUTRA. Furthermore, the Veteran’s service treatment records affiliated with his Reserve service should also be obtained and associated with the claims file. 1. Liver Condition The Board notes that the Veteran’s medical records reflect various liver diagnoses, including hepatitis C, cirrhosis of the liver, and other such conditions. Accordingly, the Board finds that the Veteran’s claim encompasses entitlement to service connection for a liver condition, including hepatitis C, cirrhosis, and other liver conditions. There is an opinion of record concluding that the Veteran’s hepatitis C is less likely than not the result of his active service. While the Board appreciates the probative value of this opinion, the Board requests that an additional opinion be obtained to address the Veteran’s other liver diagnoses of record, including cirrhosis. Furthermore, the clinician noted that the Veteran suffered an infection as a complication of in-service surgery, and the Board requests that an opinion be provided addressing whether the Veteran’s infection in service had contributed in any way to any current liver disorder. The Board also requests that the Veteran’s reports of having high-risk behavior for hepatitis while still in service be considered and discussed. 2. Left Eye Condition Pursuant to 38 U.S.C. § 1151 The Veteran asserts that his current left eye condition is the result of a left superficial parotidectomy conducted at the VA in February 2013. To date, no opinion regarding the etiology of the Veteran’s left eye disorder, to include as to whether VA treatment is the cause of the Veteran’s disorder, has been obtained. Thus, the Board requests that an opinion as to this claim be obtained on remand. 3. Neuropathy The Board acknowledges that there is an opinion of record concluding that the Veteran’s neuropathy is likely due to his hepatitis C, nonservice-connected diabetes mellitus, and nonservice-connected Vitamin B6 and B12 deficiencies. See December 2015 VA Diabetic Sensory-Motor Peripheral Neuropathy Disability Benefits Questionnaire (received in January 2016). Because the examiner determined that the Veteran’s hepatitis C could be a contributing factor to his neuropathy, the Board finds that the Veteran’s claims for a liver condition and neuropathy are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Therefore, because the Board is remanding the Veteran’s claim for service connection for a liver condition, the Veteran’s claim for neuropathy must also be remanded. Also, the Veteran’s service treatment records indicate injuries to his legs. See December 1975 Chronological Record of Medical Care (reflecting complaint of pain in ankle from an “old injury”); February 1976 Chronological Record of Medical Care (noting laceration of the leg); February 1977 Chronological Record of Medical Care (noting abrasions on the Veteran’s bilateral thighs after a fall). Because these records indicate an in-service incurrence, the Board finds that an opinion as to whether the Veteran’s neuropathy is directly related to his active service should be obtained on remand. Additionally, the Veteran is service connected for degenerative disc disease and degenerative arthritis of the lumbar spine. The Board finds that there is a question as to whether his back condition is also etiologically linked to his current neuropathy. Consequently, the Board requests that an opinion be obtained on remand to determine the nature and etiology of his current neuropathy to include as secondary to his service-connected back disorder. 4. Heart Condition The Veteran asserts that his current heart disorder is linked to his active service. His service treatment records reflect that he was stabbed in the left chest area. See January 1977 Chronological Record of Medical Care; see also January 1977 Imaging of Chest. Furthermore, the Board acknowledges the possibility and probability that the Veteran’s service medical records from ACDUTRA and/or INACDUTRA could indicate an in-service incurrence of the Veteran’s current heart disorder. To date, the Veteran has not been examined regarding the nature and etiology of his heart condition. As such, the Board finds that an examination and opinion ascertaining the etiology of the Veteran’s heart condition should be obtained on remand. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 5. TDIU As previously noted, the Board remanded the issue of entitlement to a TDIU in December 2019. See December 2019 Board Decision. Even though the directives of its previous remand have been fulfilled, it is remanding in this decision various issues which could affect the Veteran’s entitlement to a TDIU. Therefore, TDIU is inextricably intertwined with the above-listed issues. See Harris, 1 Vet. App. at 183. Because the Board is remanding the above-listed service connection and 38 U.S.C. § 1151 issues, the Board must also remand the issue of entitlement to a TDIU. The matters are REMANDED for the following action: 1. The AOJ should determine the specific dates of when the Veteran served on ACDUTRA and/or INACDUTRA. In this regard, a report detailing the Veteran’s award of reserve retirement points will NOT represent compliance with this instruction. Rather, each and every date of ACDUTRA and INACDUTRA must be identified. Then, issue a memorandum for inclusion in the claims file detailing each period of verified active military service, whether on active duty, ACDUTRA, or INACDUTRA. Any and all outstanding service treatment records from the Veteran’s Reserve service should also be obtained and associated with the claims file. 2. Forward the claims file to an appropriate clinician who has not previously provided an opinion in this case to determine the nature and etiology of any and all liver conditions attributable to the Veteran throughout the appellate period. The entire claims file, including a copy of this remand, must be made available to the clinician, who must note its review. If the clinician determines that a new examination (or telehealth interview, etc., if an in-person examination is not feasible) would be beneficial, one is to be obtained. (a) The clinician should identify any and all liver conditions attributable to the Veteran throughout the appellate period. (b) For each condition so identified, the clinician should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s condition manifested during, or is the result of, his active duty service and/or ACDUTRA. In formulating his or her opinion(s), the clinician should consider and address the competent medical and lay evidence of record, including but not limited to: (i) The Veteran’s service treatment records; (ii) The Veteran’s VA medical records; (iii) The Veteran’s private medical records; (iv) Articles submitted by the Veteran regarding hepatitis C; and (v) The Veteran’s competent lay statements, including his assertions that he participated in high-risk activity for infection of hepatitis while he was on active duty service.. If the clinician determines that the Veteran’s liver condition(s) is/are less likely than not due to his active duty service and/or any period of ACDUTRA, the clinician should discuss what other factor(s) caused the disorder(s). The clinician must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached. 3. Forward the claims file, including a copy of this remand, to a clinician with the appropriate expertise for an opinion regarding the Veteran’s claim for entitlement to benefits for an eye disorder pursuant to 38 U.S.C. § 1151. If the clinician determines that an examination (or telehealth interview, etc., if an in-person examination is not feasible) would be beneficial, one is to be provided. The clinician should identify any and all left eye conditions attributable to the Veteran throughout the appellate period and opine on the following: (a) Is/are the Veteran’s left eye condition(s) a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, or medical or surgical treatment in February 2013? (b) Did VA fail to exercise the degree of care that would be expected of a reasonable health care provider? (c) Was the proximate cause of the Veteran’s left eye condition(s) an event not reasonably foreseeable? In formulating his or her opinions, the clinician must consider all competent medical and lay evidence of record, including but not limited to: (i) The Veteran’s VA treatment records from February 2013 to the present; and (ii) The Veteran’s competent lay statements regarding the onset and continuity of his symptomatology and his first-hand experience with VA medical treatment from February 2013 forward. The clinician must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached. 4. Forward the claims file to an appropriate clinician to determine the nature and etiology of the Veteran’s current neuropathy. The entire claims file, including a copy of this remand, must be made available to the clinician, who must note its review. If the clinician determines that a new examination (or telehealth interview, etc., if an in-person examination is not feasible) would be beneficial, one is to be obtained. (a) The clinician should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s neuropathy manifested during, or is the result of, his active duty service or a period of ACDUTRA. (b) The clinician should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s neuropathy was either (i) caused or (ii) aggravated by his liver conditions. (c) The clinician should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s neuropathy was either (i) caused or (ii) aggravated by his service-connected degenerative disc disease with degenerative arthritis of the lumbar spine. NOTE: With respect to the questions concerning aggravation, the clinician is advised that aggravation under 38 C.F.R. § 3.310(b) does not require “permanent worsening” of the nonservice-connected disability. If aggravation is found, the clinician should attempt to determine the baseline level of severity of disability prior to such aggravation. In formulating his or her opinions, the clinician should consider and address the competent medical and lay evidence of record, including but not limited to: (i) The Veteran’s service treatment records; (ii) The Veteran’s VA medical records; (iii) The Veteran’s private medical records; and (iv) The Veteran’s competent lay statements of record reflecting the onset and continuity of his symptomatology. If the clinician determines that the Veteran’s neuropathy is less likely than not due to his active duty service or a period of ACDUTRA, and/or it is less likely than not caused and/or aggravated by his liver condition(s) and or service-connected degenerative disc disease with degenerative arthritis of the lumbar spine, the clinician should discuss what other factor(s) caused the disorder. The clinician must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached. 5. Schedule the Veteran for an appropriate examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the nature and etiology of any and all heart conditions attributable to the Veteran throughout the appellate period. The entire claims file, including a copy of this remand, must be made available to the examiner, who must note its review. (a) The examiner should identify any and all heart condition(s) attributable to the Veteran throughout the appellate period. (b) For each condition so identified, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s condition manifested during, or is the result of, his active duty service, ACDUTRA, and/or INACDUTRA. In formulating his or her opinion, the examiner should consider and address the competent medical and lay evidence of record, including but not limited to: (i) The Veteran’s service treatment records; (ii) The Veteran’s VA medical records; (iii) The Veteran’s private medical records; and (iv) The Veteran’s competent lay statements regarding the onset and continuity of his symptomatology. If the examiner determines that the Veteran’s heart condition(s) is/are less likely than not due to active duty service or any period of ACDUTRA, the examiner should discuss what other factor(s) caused the disorder(s). The examiner must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached. Mary E. Rude Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Seserman 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.