Citation Nr: 18132242
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 09-33 892
DATE:	September 6, 2018
ORDER
An initial 100 percent schedular rating for service-connected PTSD is granted for the entire appeal period, subject to the laws and regulations governing monetary awards. 
Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) for the period prior to July 16, 2014 is dismissed.
New and material evidence having been received, the claim for service connection for hepatitis C, to include as due to Agent Orange exposure is reopened; the appeal is granted to this extent only.
REMANDED
Entitlement to service connection for hepatitis C, to include as due to Agent Orange exposure is remanded.
Entitlement to service connection for erectile dysfunction (ED), to include as secondary to diabetes mellitus, type 2 is remanded.
FINDINGS OF FACT
1.   Since July 21, 2008, the date of receipt of the Veteran’s claim for increased rating, the PTSD impairment and symptomatology more nearly approximated total occupational and social impairment, due to such symptoms intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place, and memory loss for names of close relatives, own occupation, or own name.
2.   As a 100 percent schedular disability rating is assigned for PTSD throughout the entire appeal period from July 21, 2008, the issue of entitlement to a TDIU for the period prior to July 16, 2014 is moot because PTSD is the underlying service-connected disability for the TDIU claim.  
3.  By a final January 2011 rating decision, the RO denied service connection for hepatitis C, to include as due to Agent Orange exposure.  The Veteran did not appeal or file new and material evidence within one year of the January 2011 rating action, thus, it became final. 
4.  Since the January 2011 rating decision, VA received evidence that relates to an unestablished fact and raises a reasonable possibility of substantiating the claim for service connection for hepatitis C, notably a new theory of entitlement (i.e., contraction of hepatitis C through infected blood from in-service air gun inoculations).

CONCLUSIONS OF LAW
1.  For the entire appeal period and resolving reasonable doubt in favor of the Veteran, the schedular criteria for an increased disability rating of 100 percent for PTSD have been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2018).
2.  The claim for a TDIU rating for the period prior to July 16, 2014 has been rendered moot by the grant of schedular 100 percent disability rating for PTSD for the entire period from July 21, 2008.  38 U.S.C. § 7105 (2012); 38 C.F.R. § 4.16 (2018); Bradley v. Peake, 22 Vet. App. 280 (2008).
3.  The January 2011 rating decision, wherein the RO denied claim for service connection for hepatitis C, to include as due to Agent Orange exposure, is final.  38 U.S.C. § 7105 (c) (2012); 38 C.F.R. § 20.1103 (2018). 
4.  Evidence received since the January 2011 rating decision is new and material and the claim for service connection for hepatitis C, to include as due to Agent Orange exposure is reopened.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from May 1967 to November 1969.  He is decorations and awards include, in part, the Combat Infantryman’s Badge (CIB).  He served in the Republic of Vietnam (RVN) from November 11, 1967 to November 10, 1968, and June 7, 1969 to November 25, 1969. 
These matters are before the Board of Veterans' Appeals (Board) on appeal, in part, from a March 2009 rating decision dated by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.  By that rating action, the RO continued a 50 percent disability rating assigned to the service-connected PTSD.  The Veteran appealed this rating action and the RO’s determination therein to the Board. 
The Veteran testified before a now retired Veterans Law Judge at a Board videoconference hearing in January 2011.  A transcript of the hearing has been associated with the electronic claims file.  
In a September 2012 decision, the Board noted that the Veteran’s attorney had raised a claim of entitlement to TDIU and that it was not a separate claim, but part of the increased rating claim for PTSD.  (See Board’s September 2012 decision, citing Rice v. Shinseki, 22 Vet. App. 447).  The Board remanded the TDIU claim to the RO for additional development.  The requested development has been accomplished and the matter has returned to the Board for further appellate consideration.  
This appeal also stems from an October 2013 rating action.  By that rating action, the RO, in part, determined that new and material evidence had not been received to reopen a previously denied claim for service connection for hepatitis C.  The RO also denied entitlement to service connection for ED, to include as secondary to diabetes mellitus, type 2.  The Veteran appealed this rating action and the RO’s determination therein to the Board. 
By a May 2014 rating action, the RO granted an increased 70 percent disability rating to the service-connected PTSD, effective August 19, 2012, the date the Veteran presented to a VA facility with suicidal ideation.  Because the RO did not assign the maximum disability rating possible, the appeal for an increased disability rating for the service-connected PTSD remains before the Board.  See AB v. Brown, 6 Vet. App. 35 (1993).  
By a March 2016 rating action, the RO awarded a TDIU rating, effective July 16, 2014--the day following the Veteran’s final date of employment.  The Board has characterized the TDIU claim to reflect the RO’s action.
On VA Form 9, received by VA in late July 2017, the Veteran requested a hearing before a Veterans Law Judge on all issues on appeal.  On a March 2018 Hearing Election Form, the Veteran withdrew his hearing request.  
In March and April 2018 written arguments to the Board, the Veteran’s attorney waived initial RO consideration of VA treatment and vocational rehabilitation records received into the electronic record after issuance of a July 2017 Supplemental Statement of the Case (SSOC).  Those records were received after the appeal was certified to the Board.  Thus, a remand to have the RO initially consider this evidence in an SSOC is not required.  38 C.F.R. §§ 19.37, 20.1304 (2018). 
In July 2017, the Veteran perfected an appeal for the issues of entitlement to an initial disability rating in excess of 10 percent for diabetes mellitus and entitlement to an effective date earlier than November 2, 2015 for the award of service connection for diabetes mellitus.  The Veteran indicated in his July 2017 VA Form 9 that he wanted a video conference hearing before a Veterans Law Judge.  These issues have been certified to the Board and are awaiting a hearing.  They will be addressed in a separate Board decision following the hearing.
I. Increased Rating Claim-PTSD
The Veteran seeks an increased rating for PTSD in excess of 50 percent for the period prior to August 19, 2012 and in excess of 70 percent therefrom.  After a brief discussion of the laws and regulations governing increased rating claims and those specific to rating psychiatric disabilities, the Board will analyze the merits of the claim.
Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2018).  The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2018).  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2018).  When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor.  38 C.F.R. § 4.3 (2018).
In considering the severity of a disability, it is essential to trace the medical history of the Veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41 (2018).  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present.  38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending.  Powell v. West, 13 Vet. App. 31, 34 (1999).
Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.”  Fenderson v. West, 12 Vet. App. 119, 126 (1999).  In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time.  Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings).  When adjudicating an increased rating claim, such as here, the relevant time period for consideration is the time period one year before the claim was filed.  Hart, 21 Vet. App. at 509. 
Under the current general formula for rating mental disorders, a 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped, speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships.  Id.
A 70 percent disability rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech that is intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships.  Id.
A 100 percent disability rating is assigned total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, or for the veteran's own occupation or name.  Id. 
In this decision, the Board considered the rating criteria in the General Rating Formula for Mental Disorders not as an exhaustive list of symptoms, but as examples of the type and degree of the symptoms, or effects, that would justify a particular rating.  The Board has considered the symptoms indicated in the rating criteria as examples of symptoms "like or similar to" the psychiatric symptoms in determining the appropriate schedular rating assignment, and has not required the presence of a specified quantity of symptoms in the Rating Schedule to warrant the assigned rating for the psychiatric disorder.  See Mauerhan v. Principi, 16 Vet. App. 436 (2002). 
In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013), the United State Court of Appeals for the Federal Circuit (Federal Circuit) held that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration."  It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas."  Id.
Considerations in evaluating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and a veteran's capacity for adjustment during periods of remission.  The evaluation must be based on all evidence of record that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of the examination.  38 C.F.R. § 4.126 (a) (2018).  Although the extent of social impairment is a consideration in determining the level of disability, the rating may not be assigned solely on the basis of social impairment.  38 C.F.R. § 4.126 (b).
In Golden v. Shulkin, 2018 U.S. App. Vet. Claims LEXIS 202 (Vet. App. February 23, 2018), the United States Court of Appeals for Veterans Claims (Court) held that, given that the Diagnostic and Statistical Manual for Mental Disorders, Fifth Edition (DSM-5) abandoned the Global Assessment of Functioning (GAF) scale and that VA has formally adopted the DSM-5, GAF scores are inapplicable to assign a psychiatric rating in cases where the DSM-5 applies when the appeal was certified after August 4, 2014.  As the increased rating adjudicated herein was certified to the Board before August 4, 2014, the DSM-5 does not apply.  Nevertheless, because of the Court's emphatic pronouncement in Golden that the GAF scores are methodologically flawed and are particularly unreliable as applied to PTSD, in this decision, the Board will place no reliance on GAF scores for rating this Veteran's PTSD.
The Board finds that the evidence of record supports an increased disability rating of 100 percent for the service-connected PTSD for the entire appeal period.  Notably, suicidal ideation may cause occupational and social impairment in most areas.  See Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017) (stating the language of 38 C.F.R. § 4.130 "indicates that the presence of suicidal ideation alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment in most areas."). The evidence of record shows that the Veteran's PTSD symptoms, specifically persistent auditory and visual hallucinations, were noted in a February 2009 VA examination report and August 2012 and May 2014 VA treatment reports. 
When examined by VA in February 2009, the Veteran related that he had had passive suicidal ideations, auditory hallucinations and had engaged in unprovoked verbal attacks on people.  The VA examiner noted that the Veteran avoided getting close with people and that he had been rejected by potential employers because they were afraid to have him in their workplace.  Overall, the February 2009 VA examiner concluded that the Veteran was unable to secure a job due to his PTSD symptoms, that he had hallucinations under stress and that it was unclear whether he could improve with treatment.  (See February 2009 VA PTSD examination report).  
The Veteran’s suicidal ideations were highlighted during a February 2013 VA examination.  At the close of that examination, the VA psychologist determined that the Veteran’s reports of suicidal ideation (i.e., he reported having two suicidal episodes during the previous summer) were a symptom of his dysthymia which was as least as likely as not a progression of his PTSD.  (See February 2013 VA examination report).  The Veteran continued to experience suicidal, as well as homicidal ideation, in August 2012 and May 2014.  On these occasions, the Veteran presented himself to the VA emergency room with suicidal and homicidal ideations (August 2012).  During these episodes, the Veteran reported an increasingly depressed mood, worsening nightmares and an increased frequency of flashbacks and intrusive thoughts.  The Veteran verbalized suicidal ideations with plans to shoot himself (2012) and jump off a bridge.  (See August 2012 and May 2014 VA treatment reports, respectively).  I
In a March 2016 report, J.M. Ph.D., opined that there had not been any remission of the Veteran’s PTSD symptoms, notably his reports of suicidal ideations and visual hallucinations, and explosive outbursts since 2008 and that he had been unable to secure or follow substantially gainful occupation since May 2014.  (See March 2016 opinion, prepared by J. M. Ph.D.). 
In addition, and with regards to occupational impairment, the Veteran resigned from his full-time employment as a housekeeper’s aid at a local VA facility on July 15, 2014.  (See VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, received by VA in August 2014).  Yet, and as noted previously herein, the February 2009 VA examiner, as well as J. M. Ph. D., both indicated that the Veteran had had difficulty finding work because of his PTSD symptoms.  This finding was corroborated by a VA psychiatrist, who opined, after noting that the Veteran had received treatment in December 2011 and December 2013 for his PTSD symptoms, that he be assigned a different shift or supervisor that best served his, as well as the VA Medical Center’s needs).  (See VA psychiatrist’s December 2013 letter to VA). 
The evidence of record, notably the February 2009 VA examiner’s opinion, as well as J. M. Ph.D.’s opinion, reflects that the Veteran’s PTSD symptomatology had remained consistent throughout the appeal period.  The ultimate determination as to the level of occupational and social impairment is an adjudicative determination.  Resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for an increased 100 percent (maximum) schedular rating for PTSD have been met for the entire rating period, i.e., July 21, 2008.
II) TDIU Rating-Period to July 16, 2014
The Veteran seeks entitlement to a TDIU rating for the period prior to July 16, 2014.  The Veteran contends that he is prevented from obtaining and maintaining substantially gainful employment due to his PTSD.  (See VA Form 21-8940, Veterans Application for Compensation Based on Individual Unemployability, received by VA in August 2014). 
VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of service-connected disabilities, from obtaining or maintaining "substantially gainful employment" consistent with the veteran's education and occupational experience.  38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91. 
VA's duty to maximize benefits requires it to assess all of a claimant's service-connected disabilities to determine whether any combination of the disabilities establishes eligibility for special monthly compensation (SMC) under 38 U.S.C. § 1114 (s) (2012).  See Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2010); Bradley v. Peake, 22 Vet. App. 280, 294 (2008).  In Bradley, 22 Vet. App. 280, the Court held that 38 U.S.C. § 1114 (s) permits a TDIU rating based on a single disability to satisfy the statutory requirement of a "total" rating.  When a veteran is awarded TDIU based on a single disability and receives schedular disability ratings for other conditions, SMC based on the statutory housebound criteria may be awarded so long as the same disability is not counted twice, i.e., as a basis for TDIU and as a separate disability rated 60 percent or more disabling.  See 75 Fed. Reg. 11,229, 11,230, Summary of Precedent Opinions of the VA General Counsel (March 10, 2010) (withdrawing VAOPGCPREC 6-1999 in light of Bradley, 22 Vet. App. at 280). 
A veteran with a 100 percent schedular disability rating for a single service-connected disability could also obtain a TDIU on a single separate disability (though not on multiple service-connected disabilities), in order to meet the SMC requirements (100 percent rating plus 60 percent rating).  A TDIU could meet the SMC requirements by either: a) increasing a single disability rating of less than 60 percent to at least 60 percent (in a case where a separate 100 percent rating is already established), or b) increasing a single disability that is less than 100 percent to a "total" (100 percent) rating, in a case where there is already established a combination of other ratings that meet the separate 60 percent rating requirement for SMC.  See Buie at 249-50.
The Veteran, pursuant to this Board decision, is in receipt of a 100 percent schedular rating for PTSD, the underlying service-connected disability for the TDIU claim, for the entire appeal period (i.e., July 21, 2008, the date VA received the Veteran’s claim for increased compensation for PTSD).  However, a TDIU is not warranted once the Veteran had a combined 100 percent evaluation.  As noted above, under Bradley¸ a TDIU can be warranted if VA finds the separate disability supports a TDIU independent of the other 100 percent disability rating.  Notwithstanding the schedular 100 percent rating assigned for PTSD, none of the other service-connected disabilities (i.e., tinnitus and diabetes mellitus, each rated as 10 percent disabling) alone meets the criteria for the assignment of a TDIU during the time period on appeal, nor has any other single service-connected disability been indicated to render the Veteran unable to secure or follow a substantially gainful occupation.  In this case, to award a separate TDIU rating for the period prior to July 16, 2014, in addition to the schedular 100 percent rating based on PTSD, would result in duplicate counting of disabilities.  38 C.F.R. § 4.14.  As such, the Board finds that a TDIU could not assist the Veteran in meeting the criteria for SMC under 38 U.S.C. § 1114 (s) and the assignment of a total schedular rating for PTSD renders the TDIU for the period on appeal moot.  Sabonis v. Brown, 6 Vet. App. 426 (1994).
III) New and Material Claim-Hepatitis C
The Veteran seeks to reopen a previously denied claim for service connection for hepatitis C.
In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final.  38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 3.104, 20.1100, 20.1103 (2018).  A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim.  38 U.S.C. § 5108 (2012).
Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed Cir. 2001).  As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance.  Evans v. Brown, 9 Vet. App. 273, 285-86 (1996).
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 (2018).  For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992). 
The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).  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, to include by triggering the Secretary's duty to assist or consideration of a new theory of entitlement.  Shade, 24 Vet. App. at 117-18. 
Additionally, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.  38 C.F.R. § 3.156 (b).  Furthermore, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring new and material evidence.  38 C.F.R. § 3.156 (c)(1).  A claim is not reconsidered, however, where VA could not have obtained the records when it initially decided the claim because the records did not exist at that time, or because the claimant failed to provide sufficient information to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or any other official source.  38 C.F.R. § 3.156 (c)(2).
To establish service connection, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service- the so-called nexus requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed Cir. 2004)). 
In a January 2011 rating decision, the RO denied service connection for hepatitis C because the evidence did not show any complaints, treatment, or risk factors during active service, or that it had been caused by his period of military service, to include herbicide exposure.  The Veteran did not appeal that decision nor submit new and material evidence within one year.  Thus, the January 2011 rating decision became final based on the evidence then of record.  See 38 U.S.C. § 7105 (c); 38 C.F.R. § 20.1103. 
At the time of the January 2011 final rating decision, the evidence of record included, in part, the Veteran's service treatment records (STRs).  These treatment records are negative for any treatment for, or diagnosis of, hepatitis, and hepatitis C risk-factors.  (Parenthetically, they do disclose that the Veteran had complained of a drip from his penis in late October 1969.  The examining clinician entered an impression of gram-negative intracellular diplococci (GNID)).   A service separation examination report is not of record. 
Also of record at the time of the RO’s January 2011 rating action were VA treatment records reflecting that the Veteran was initially diagnosed as having hepatitis C in May 2010.  
Evidence added to the record since the final January 2011 rating action includes, but is not limited to, written statements, authored by the Veteran and his attorney and received in June 2012 and October 2013, respectively.  In these statements, the Veteran and his attorney raised a new theory of entitlement for hepatitis C, notably that it had been caused by exposure to infected blood from in-service air gun inoculations.  (See VA Form 21-4138, Statement In Support of Claim, authored by the Veteran and received by VA in June 2012, and Veteran’s attorney’s October 2013 written argument to VA, accepted as the Veteran’s Notice of Disagreement). 
The Board finds that new and material evidence has been received to reopen the previously denied claim for service connection for hepatitis C.  The Veteran’s and his attorney’s June 2012 and October 2013 statements, respectively, are new because they were not previously submitted to VA at the time of the RO’s final January 2011 rating action.  They are also material.  They are material because they relate to an unestablished fact necessary to establish the claim - evidence of a new theory of entitlement for hepatitis C.  See 38 C.F.R. § 3.303 (a); Shedden, 381 F.3d at 1167.  Additionally, the evidence is neither cumulative nor redundant as that evidence was not of record at the time of the prior denial.  See 38 C.F.R. §  3.156 (a).  Further, new evidence is to be presumed credible for purposes of deciding whether a previously denied claim may be reopened.  Justus, 3 Vet. App. at 513.  Moreover, when considering the new evidence in conjunction with the evidence already of record, combined with VA assistance including an examination, it raises a reasonable possibility of substantiating the claim.  Shade, 24 Vet. App. at 117.  Accordingly, for the above reasons, the Veteran's claim for service connection for hepatitis C, to include as due to Agent Orange exposure is reopened.
REASONS FOR REMAND
The Board finds that prior to further appellate review of the claim for service connection for hepatitis C, to include as due to Agent Orange exposure and entitlement to service connection for ED, to include as secondary to diabetes mellitus type 2, a remand is necessary in order to comply with the duty to assist as mandated by 38 U.S.C. § 5103A.
First, a remand is required to obtain potentially outstanding records from the Social Security Administration (SSA).  A November 2008 VA treatment records reflects that the Veteran had applied for SSA disability benefits.  (See VA treatment reports, dated from November 2008 to February 2011, labeled as “Medical Treatment-Government Facility” and received into the Veteran’s Veterans Benefits Management System (VBMS) electronic record on July 19, 2011)).  
Where there has been a determination with regard to SSA benefits, the records concerning that decision must be obtained, if relevant.  Tetro v. Gober, 14 Vet. App. 100, 108-09 (2000); Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992); Golz v. Shinseki, 590 F.3d 1317, 1321 (2010) (there is no duty to get SSA records when there is no evidence that they are relevant).  As it is unclear what disability the Veteran claimed for SSA benefits, records related to the SSA determination may be relevant.  Accordingly, attempts to obtain and associate with the claims file any outstanding SSA records should be made.  Id. at 1323; see also Baker v. West, 11 Vet. App. 163, 169 (1998).
Second, a remand is necessary to obtain a medical opinion that addresses the etiology of the Veteran’s diagnosed hepatitis C to his period of military service. The Veteran contends that he has hepatitis C secondary to his presumed Agent Orange exposure in the RVN and, in the alternative, from exposure to infected blood from vaccinations and immunizations through air gun innoculations during service.  (See VA Form 21-4138, Statement In Support of Claim, received by VA in June 2012, and Veteran’s attorney’s October 2013 written argument to VA, accepted as the Veteran’s Notice of Disagreement). 
The Veteran has a diagnosis of hepatitis C.  As military personnel records confirm that he served on the landmass of the RVN from November 11, 1967 to November 10, 1968 and July 7, 1969 to November 25, 1969, his exposure to Agent Orange is presumed.  38 U.S.C. § 1116 (f) (2012); 38 C.F.R. § 3.307 (a)(6)(iii) (2018).  In addition, service treatment records reflect that during the period from May 1967 to April 1969, he received numerous vaccinations and immunizations (e.g., small pox, triple typhoid, cholera, yellow fever). 
Risk factors for hepatitis C include intravenous (IV) drug use, blood transfusions before 1992, hemodialysis, intranasal cocaine, high-risk sexual activity, accidental exposure while a health care worker, and various kinds of percutaneous exposure such as tattoos, body piercing, acupuncture with non-sterile needles, shared toothbrushes or razor blades. Veterans Benefit Administration (VBA) Fast Letter 98-110 (Nov. 30, 1998).  A veteran may have been exposed to hepatitis C during the course of his or her duties as a military corpsman, a medical worker, or as a consequence of being a combat veteran, such as here (i.e., Veteran is in receipt for CIB).  VBA Fast Letter 04-13 (June 29, 2004). VBA Fast Letter 04-13 also notes indicated that it is "biologically plausible" for transmission of hepatitis C through the use of jet injectors, although it subsequently points out that this is "[d]espite the lack of any scientific evidence to document transmission of HCV with air gun injectors."  Id.  The Board points out that there was no test available to detect the presence of hepatitis C until 1989.  See VBA Fast Letter 98-110.
Given the Veteran's presumed Agent Orange exposure in the RVN, his receipt of vaccinations and immunizations during service, his contention that his hepatitis C was caused by exposure to infected blood from air gun inoculations, and his status as a combat veteran, a medical opinion as to the etiology of his hepatitis C will be sought on remand.
Second, a remand is also required to schedule the Veteran for a VA examination and opinion to determine the etiology of his ED.  VA has a duty to assist claimants to obtain evidence needed to substantiate a claim.  38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2018).  VA’s duty to assist includes providing a medical examination when is necessary to make a decision on a claim.  38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4).  The RO did not provide the Veteran with an examination.  Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability.  38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence “indicates” that there “may” be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology).  
The Veteran primarily contends that he has ED secondary to his service-connected diabetes mellitus, type 2.  (See VA Form 21-4138, Statement in Support of Claim, received by VA in June 2012).  While the Veteran does not provide any arguments on a direct service connection theory, the Board notes that his service treatment records disclose that he was seen for complaints of a drip from his penis in late October 1969.  The examining clinician entered a diagnosis of GNID.  Thus, given that the Veteran received treatment in service for a genitourinary condition of his penis and service connection is effect for diabetes mellitus type 2, the Board finds that he should be scheduled for an examination to have the examiner provide an opinion on whether any currently present erectile dysfunction is etiologically related to his period of service or has been caused by (or aggravated by) his service-connected diabetes mellitus.  See 38 U.S.C. § 5103A (d)(2) (2012); 38 C.F.R. § 3.159 (c)(4)(i) (2018); McLendon, supra. 
The matters are REMANDED to the RO for the following action:
1. Contact the SSA and obtain a copy of that agency’s decision concerning the Veteran’s claim for disability benefits, including any medical records used to make the decision.  If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file.  Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile.  The non-existence or unavailability of such records must be verified and this should be documented for the record.  Required notice must be provided to the Veteran and his attorney.
2. Obtain a medical opinion as to the etiology of the Veteran's hepatitis C. 
The reviewing clinician should provide an opinion as to whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's hepatitis C began or was otherwise caused by his military service.  
In this regard, the reviewing clinician’s attention is directed to the Veteran’s assertions that his hepatitis C was the result of his presumed Agent Orange exposure in the RVN and/or was the result of infected blood from vaccinations and immunizations with air gun injectors during service. 
In providing the requested opinion, the reviewer is advised that the Veteran's exposure to Agent Orange in the RVN is hereby presumed and that he had received numerous vaccinations and immunizations during service from May 1967 to April 1969, as disclosed in his service treatment records.  Please provide a complete explanation for the opinion.
3.  After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his erectile dysfunction.  The entire claims file must be made available to and be reviewed by the examiner.  Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis.  An explanation for all opinions expressed must be provided.  
a) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s ED had its onset in, or is otherwise related to, active military service.  
In providing the requested opinion, the examiner must also specifically address an October 1969 service treatment record reflecting that the Veteran complained of a drip from his penis that resulted in an impression of GNID.   
b) The examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s ED is caused or aggravated by the service-connected diabetes mellitus, type 2.  

 
THOMAS H. O'SHAY
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Carole Kammel, Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


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