Citation Nr: 21029893 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 16-48 336 DATE: May 17, 2021 ORDER The claim for entitlement to service connection for hepatitis C is reopened. REMAND 1. Entitlement to service connection for hepatitis C is remanded. 2. Entitlement to service connection for eczema is remanded. FINDING OF FACT Evidence received since the October 2006 rating decision includes evidence that is not cumulative or redundant of the evidence previously of record and is sufficient to raise a reasonable possibility of substantiating the claim of service connection for hepatitis C. CONCLUSIONS OF LAW 1. The October 2006 rating decision denying the claim of entitlement to service connection for hepatitis C is final. 38 U.S.C. § 7105 (2002); 38 C.F.R. §§ 3.104, 20.202, 20.1103 (2006). 2. New and material evidence has been received to warrant reopening of the claim of service connection for hepatitis C. 38 U.S.C. §§ 5107, 5108 (2012); 38 C.F.R. § 3.156 (2020). REASONS AND BASES FOR FINDINGS, CONCLUSIONS AND REMAND The Veteran served on active duty in the United States Army from July 1969 to October 1970 including service in the Republic of Vietnam. These matters are before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in December 2014 by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran died on April [REDACTED], 2020. In June 2020, the agency of original jurisdiction (AOJ) recognized the appellant as substituted as the claimant. The claims are now properly before the Board. In March 2021 the appellant testified before the undersigned Veterans Law Judge (VLJ). A transcript of the claim is of record. Entitlement to service connection for hepatitis C In June 2006 the Veteran submitted a claim of service connection for hepatitis C. The RO denied the Veteran's claim in October 2006. The RO considered the Veteran's service treatment records (STRs), private treatment records and September 2006 VA examination. The RO denied service connection because the disease first manifested after service and because the weight of competent evidence was that the disease was caused by intravenous cocaine abuse and not any aspect of service. Generally, a claim that has been denied in an unappealed Board or rating decision may not thereafter be reopened and allowed. 38 C.F.R. §§ 20.1100, 20.1103. The 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 Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. 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. New and material evidence can be neither cumulative nor redundant of the evidence previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). As the Veteran did not appeal his October 2006 denial within one year it became final. In September 2014 the Veteran submitted an application to reopen the claim and did so without submitting any new evidence. The RO declined to reopen the claim in October 2014 on the grounds that no new and material evidence was presented. The Veteran responded in November 2014 with a statement in which he argued "accidental exposure to blood by medic or corpsman while in Vietnam" and "intravenous drug use or intranasal cocaine use while in Vietnam" were applicable to his case. See November 2014 VA 21-4138. In December 2014, the RO continued to decline to reopen the claim and did not consider the new statement to be material because it was not related to an unestablished fact. The Veteran appealed and requested a hearing. He subsequently died and a hearing was held in March 2021 with the appellant and her daughter. 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). The Board finds that this testimony is new, as it was not before the RO at the time of his denial, and it is relevant, as it raises another cause for the disease that reportedly occurred in service. Given that the threshold to reopen a claim is low, the Board finds that the Veteran's claim of service connection for hepatitis C must be reopened, given his lay statements before death and the testimony from the appellant and his daughter. Shade v. Shinseki, 24 Vet. App. 110 (2010). When the Board reopens a claim after the RO has denied reopening that same claim, the matter generally must be returned to the RO for consideration of the merits." Hickson v. Shinseki, 23 Vet. App. 394, 399 (2010). Therefore, this claim should be remanded to the AOJ for adjudication. Entitlement to service connection for eczema The Appellant contends that the Veteran experienced eczema due to his military service. A review of the Veteran's service treatment records (STRs) does not show any complaint, treatment or diagnosis for eczema. The Veteran did not report eczema or related skin conditions in his separation Report of Medical History, nor was it listed in his separation Report of Medical Examination. See August 2006 STR-Medical, pp. 17, 48. Post-service, the record is silent for any complaint for many years thereafter, with a May 2012 physician note showing that the Veteran denied having any rashes and did not complain of any skin conditions. See August 2013 CAPRI, p. 235. The first indication in the record of eczema came in the Veteran's September 2014 claim of service connection. In November 2014, a VA examiner diagnosed eczema. The Veteran reported that he was diagnosed with eczema "after being released from service and has been on various creams since." The examiner opined that the eczema was less likely than not incurred in or caused by his military service, stating "according to C-file Veteran had pseudofolliculitis barbae related to having while in service. This is not associated with eczema." See November 2014 C&P Exam. The RO denied the claim in December 2014. The Veteran provided a timely notice of disagreement (NOD), and the RO issued a statement of the case (SOC) and in September 2016. The Veteran perfected his appeal via a VA Form 9. The Veteran requested a hearing before a Veterans Law Judge (VLJ). Before the Veteran could be scheduled for a hearing, he died in April 2020. The Board dismissed the appeal in June 2020, and in the same month the AOJ granted substitution for the Appellant. See June 2020 Appeal Substitution Review. In March 2021 a hearing before the undersigned VLJ was provided to the appellant. At the hearing, the appellant's daughter testified as to her father having rashes when she was growing up. The appellant testified that the Veteran had continuous rashes since returning from Vietnam. See March 2021 Hearing Transcript. The appeal is now properly before the Board. In the present case, the only nexus opinion of record is that of the November 2014 VA examination. While of significant probative value, it did not directly address the appellant's contention that the Veteran's eczema was caused by herbicide exposure. Likewise, the appellant and her daughter both testified as to the Veteran suffering from rashes since returning from Vietnam. Given this new evidence, the Board finds that a remand is required for an addendum opinion. The matters are REMANDED for the following actions: 1. Adjudicate the claim of service connection for hepatitis C, considering the Veteran's contention that it was caused by "accidental exposure to blood by medic or corpsman while in Vietnam." 2. Refer the claim to an appropriate clinician for an addendum opinion as to the nature and etiology of the Veteran's eczema. The clinician is requested to respond to the following: Is the Veteran's eczema at least as likely as not (a 50 percent or greater probability) related to presumed in service exposure to an herbicide agent? (continued next page) The Veteran's claims-file must be made available to and reviewed by the clinician. The examiner must provide a complete rationale for any opinion and conclusion, including a discussion of the facts and medical principles involved. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Abels, 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.