Citation Nr: 1736564	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  12-32 743	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim for service connection for hepatitis C, also claimed as infectious hepatitis.  

2.  Entitlement to service connection for hepatitis C.  

3.  Entitlement to a compensable rating for bilateral hearing loss.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

E. Miller, Associate Counsel


INTRODUCTION

The Veteran served on active duty from August 1972 to August 1975.  

This case comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Medical and Regional Office (RO) Center in St. Louis, Missouri.  In August 2010, the RO denied a compensable rating for the Veteran's service-connected bilateral hearing loss.  In a February 2011 rating decision, the RO denied service connection for the Veteran's claim for hepatitis.  The Veteran has since moved to Arizona, and it appears that this claim has been transferred to the RO in Phoenix, Arizona.  

In March 2015, the Board remanded this claim in order to allow the Veteran to appear at a hearing.  

In August 2016, the Veteran testified at a hearing using videoconference facilities in Phoenix, Arizona before the undersigned Veterans Law Judge (VLJ), and a transcript has been associated with the electronic record.

The issue of bilateral hearing loss is being remanded and is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).







FINDINGS OF FACT

1.  Service connection for infectious hepatitis was denied in an unappealed rating decisions dated in December 2005 and April 2006.
 
2.  The evidence received since the April 2006 rating decision, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim for service connection for hepatitis.  

3.  The Veteran was treated for a variant of hepatitis during service.  

4.  Hepatitis C is an illness which was unidentified by the medical community at the time the Veteran was treated for hepatitis during service.  

5.  The Veteran has a current diagnosis of hepatitis C.  


CONCLUSIONS OF LAW

1.  The April 2006 rating decision, which denied service connection for hepatitis C, is final.  38 U.S.C.A. § 7105 (West 2006); 38 C.F.R. § 3.105 (2006).  

2.  The evidence received subsequent to the April 2006 rating decision is new and material, and the issue of service connection for hepatitis is reopened.  38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2016).

3.  Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for hepatitis C have been met.  38 U.S.C.A. §§ 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2016).  



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  VA's Duties to Notify and Assist

Because the Board is granting the service connection issue for hepatitis in full, VA's duties to notify and assist are deemed fully satisfied and there is no prejudice to the Veteran in proceeding to decide this claim.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016).

II.  New and Material Evidence

In a December 2005 decision, the RO denied service connection for hepatitis.  The Veteran submitted new evidence, which the RO considered in an April 2006 rating decision in which it appeared to reopen the claim for hepatitis but continued the previous denial of entitlement to service connection for hepatitis.  The Veteran did not initiate any appeal of the April 2006 rating decision or submit new and material evidence within one year of the decision.  Therefore, the April 2006 rating decision is final.  38 U.S.C.A. § 7105 (West 2006); 38 C.F.R. § 3.105 (2006).  

In reviewing the earlier April 2006 decision, the Board has determined that a new and material evidence analysis is proper for the hepatitis issue on appeal, as it was clearly adjudicated by the December 2005 and April 2006 decisions.  See Velez v. Shinseki, 23 Vet. App. 199, 204 (2009) (when determining whether a new and material evidence analysis is required, the focus of VA's analysis must be on whether the evidence presented truly amounts to a new claim "based upon distinctly diagnosed diseases or injuries," or whether it is evidence tending to substantiate an element of the previously adjudicated matter).  

In a February 2011 rating decision, the AOJ determined that there was no basis for reopening the hepatitis issue due to a lack of new and material evidence.  The AOJ declined to adjudicate the underlying hepatitis claim for service connection.  The Veteran filed a notice of disagreement in September 2011.  In an October 2012 Statement of the Case, the RO continued to deny the underlying claim for hepatitis C based on lack of nexus with the Veteran's time in service.  Regardless of the AOJ's actions, the Board has jurisdictional responsibility to determine whether a claim previously denied by the AOJ is properly reopened.  See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C.A. §§ 5108, 7105(c)).  See also Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996) and VAOPGCPREC 05-92 (March 4, 1992).  Accordingly, the Board must initially determine whether there is new and material evidence to reopen the hepatitis issue before proceeding to adjudicate the underlying merits of the claim.  If the Board finds that no new and material evidence has been provided, that is where the analysis must end.

A claimant may reopen a finally adjudicated claim by submitting new and material evidence.  New evidence means existing evidence not previously submitted to agency decision makers.  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) (2016).

The question of whether new and material evidence has been received sufficient to reopen the matter is a threshold question in any case involving a previously denied claim.  Wakeford v. Brown, 8 Vet. App. 237, 239-40 (1995).  The United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening."  The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim."  Shade v. Shinseki, 24 Vet. App. 110 (2010).  See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance).  That is, a finally decided claim must be reopened where the claimant submits new and material evidence relative to a fact that was unestablished at the time of the prior final decision on the claim.  Shade, 24 Vet. App. at 119.

For the purpose of reopening a claim, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them.  See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). 

Here, the Board finds that new and material evidence within the meaning of 38 C.F.R. § 3.156(a) has been received since the final April 2006 rating decision.  Specifically, a VA examination dated September 2012 with a related opinion addressing the nexus requirement for service connection for hepatitis.  Thus, there is now a medical opinion on the relationship between the Veteran's current diagnosis of hepatitis C and his previous treatment in service for hepatitis.  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).  The Board finds that the additional medical evidence of record constitutes new and material evidence to reopen the hepatitis claim.  In short, this evidence, if presumed credible, relates to an unestablished fact necessary to substantiate the hepatitis claim and raises a reasonable possibility of substantiating the claim.  Accordingly, the Board finds that new and material evidence has been presented to reopen the Veteran's previously denied hepatitis claim.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156.

III.  Claim for Service Connection 

The Veteran contends that he acquired hepatitis C during service.  

To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  

The question for the Board is whether the Veteran's current diagnosis of hepatitis C either began during active service, or is etiologically related to an in-service disease or injury.  

The Board finds that competent, credible, and probative evidence establishes that the Veteran had a variant of hepatitis during service, that the Veteran has a current diagnosis of hepatitis C, and there is a medical nexus opinion favoring a connection between the current diagnosis and the Veteran's service.  

The Veteran's service treatment records (STRs) show that he was hospitalized for 11 days for hepatitis in 1973 while in active service.  

Post-service, the Veteran was diagnosed with hepatitis C in August 2004.  The September 2012 VA examination noted that the Veteran has a current diagnosis of hepatitis C, although he was asymptomatic at the time of the examination.  

In a September 2012 VA examination and related opinion, the examiner opined that it was at least as likely as not that the claimed condition of hepatitis C (HCV) was by an in-service injury, event, or illness.  The examiner noted that the Veteran tested negative for hepatitis B during his treatment in service.  The examiner noted that since hepatitis C was an unidentified illness in 1973, for which testing was unavailable, the "possibility that this was HCV cannot be denied" and "could easily have represented a mild case of HCV."  

The Board notes that a prior opinion based on case file review by the same VA examiner, written in August 2012, is contradictory to the opinion rendered a month later at the in-person examination.  Additionally, at the August 2016 Board hearing, the Veteran's representative requested an additional medical opinion to reconcile these two contradictory VA opinions.  Since the Board is resolving reasonable doubt in favor of the Veteran, remanding this case for an additional opinion is unnecessary.  

Although the Veteran's medical records offer alternate possibilities of hepatitis C etiology, such as the Veteran referencing a needle stick in August 2004, or a blood transfusion in 1992, reasonable doubt leaves open the possibility as the examiner explained that the Veteran's hepatitis C was incurred in service.  

Based on the Veteran's VA treatment records showing treatment in service for hepatitis, a current diagnosis of hepatitis C, and the opinion of the VA examiner that it is at least as likely as not that the Veteran acquired hepatitis C during service, the Board finds that the criteria for service connection for hepatitis C have been met.  38 U.S.C.A. § 5107 (West 2014), 38 C.F.R. § 3.102 (2016), and Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  


ORDER

Entitlement to service connection for hepatitis C is granted.  


REMAND

With respect to the Veteran's bilateral hearing loss claim, although the Board sincerely regrets this delay and is appreciative of the Veteran's service to his country, a remand is necessary to ensure VA provides the Veteran with appropriate process and assistance in developing his claim prior to final adjudication.  

Notably, the Veteran was most recently provided an audiological examination in September 2012, almost five years ago.  The results of that examination showed hearing loss of a noncompensable degree, although the Veteran claimed at his Board hearing that his hearing loss had worsened.  The Board is of the opinion that a new VA examination would be probative in ascertaining the current severity of his service-connected hearing loss disability.  A contemporaneous examination is needed to accurately assess the current severity of the Veteran's hearing loss.  


Accordingly, the case is REMANDED for the following action:

1.  Arrange for the Veteran to be examined by a VA audiologist in the Tucson, Arizona area (if possible), as requested by the Veteran, to determine the current severity of his bilateral hearing loss disability.  Based on a review of the entire record and puretone audiometric testing with Maryland CNC speech discrimination testing, the examiner should note all pertinent features and findings needed to apply the relevant rating criteria.  Specifically, the examiner should note all results of puretone audiometric testing, with puretone average thresholds and Maryland CNC speech discrimination scores (in percentages) for both ears, as well as any functional impairment reported.  Any medical opinions offered must include a complete rationale.

2.  The AOJ should then review the record and readjudicate the claim.  If it remains denied, the AOJ should issue an appropriate supplemental statement of the case and afford the Veteran and his representative an opportunity to respond before the record is returned to the Board.

The appellant has the right to submit additional evidence and argument on the matter or matters 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 (West 2014).




______________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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