Citation Nr: 0307356 Decision Date: 04/16/03 Archive Date: 04/24/03 DOCKET NO. 98-07 366 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for hepatitis B. REPRESENTATION Appellant represented by: Bruce W. Ebert, Esq. ATTORNEY FOR THE BOARD David T. Cherry, Counsel INTRODUCTION The veteran had active service from August 1973 to July 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 1994 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California; the veteran's claim has since been transferred to the VA RO in Reno, Nevada. In January 2000, the Board held that new and material evidence had not been submitted to reopen a claim of service connection for hepatitis B. The veteran appealed to the United States Court of Appeals for Veterans Claims (CAVC). In March 2001, the VA General Counsel filed a motion to remand and to stay proceedings for the Board to consider the claim under the Veterans Claims Assistance Act of 2000 (VCAA). In August 2001, CAVC granted the motion for remand, vacated the January 2000 Board decision, and remanded the issue to the Board. See Luyster v. Gober, 14 Vet. App. 186 (2000); see also Holliday v. Principi, 14 Vet. App. 280 (2001). Pursuant to the CAVC's remand, the case was returned to the Board for further appellate review. In July 2002, the Board undertook additional development on the issue on appeal, pursuant to authority granted by 38 C.F.R. § 19.9(a)(2) (2002), specifically obtaining additional records. The Board subsequently received additional records - Social Security Administration records, medical records and service personnel records. The Board has duly considered the provisions of the VCAA and is now undertaking additional development on the issue of entitlement to service connection for hepatitis, variously diagnosed as hepatitis B and C, pursuant to authority granted by 67 Fed. Reg. 3,099, 3,104 (Jan. 23, 2002); 38 C.F.R. § 19.9(a)(2) (2002). When it is completed, the Board will provide notice of the development as required by 38 C.F.R. § 20.903. After giving the notice and reviewing your response to the notice, the Board will prepare a separate decision addressing the issue of entitlement to service connection for hepatitis, variously diagnosed as hepatitis B and C. As there remains additional development of the service connection claim, discussion of the Board's duty to assist in light of the VCAA is premature at this time. Additionally, the Board need not discuss the limited application of the VCAA in new and material evidence claims, given the favorable disposition of that issue as decided herein. In an April 2000 statement, the veteran sought to reopen a claim of service connection for hypertension. In March 2002, the Board received a document from the representative that raised the issues of service connection for schizophrenia and a total disability rating for compensation purposes based on individual unemployability. In a February 1985 decision, the Board held that new and material evidence had not been submitted to reopen a claim of service connection for an acquired psychiatric disorder. Since these issues have been neither procedurally prepared nor certified for appellate review, the Board is referring them to the RO for initial consideration and appropriate adjudicative action. Godfrey v. Brown, 7 Vet. App. 398 (1995). FINDINGS OF FACT 1. In an April 1993 confirmed rating decision, the VA RO in San Francisco, California, found that no new and material evidence had been submitted to reopen the veteran's claim of entitlement to service connection for hepatitis B, and notified him; he did not appeal that decision. 2. The additional evidence added to the record since the April 1993 rating decision bears directly and substantially upon the specific matter under consideration; is not cumulative or redundant; and, by itself or in connection with evidence previously assembled, is so significant that it must be considered to fairly decide the merits of the claim CONCLUSION OF LAW Evidence received since the April 1993 rating decision wherein the RO denied reopening the claim of entitlement to service connection for hepatitis B is new and material, and the veteran's claim for hepatitis, variously diagnosed as hepatitis B and C, is reopened. 38 U.S.C.A. §§ 5104, 5108, 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156(a), 20.302, 20.1103 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background The evidence that was of record prior to the unappealed April 1993 rating decision wherein the RO declined to reopen the claim of entitlement to service connection for hepatitis B is reported in pertinent part below. The veteran's abdomen and viscera were noted to be normal on the service entrance examination and he denied a history of stomach/liver trouble, hepatitis and jaundice. The service medical records contain no reference to hepatitis by finding or history. Service records include a note reflecting treatment with prescribed medications for high blood pressure by a civilian physician. The service separation examination showed that all body systems were normal and that the veteran denied a significant medical history. On a medical history questionnaire he denied having or having had stomach/liver trouble, hepatitis and jaundice. Service records also reflect the veteran's possession of marijuana and mixing of prescription medication and alcohol, and that he underwent a drug rehabilitation program. A report from a private hospital, dated in March 1976, reflects that the veteran provided a history of hepatitis at age thirteen, without complications. No current diagnosis of hepatitis is shown in the report. A report dated in October 1976 from that same hospital reflects treatment for hypertension and psychological problems and drug abuse. A history of hepatitis at the age of eleven was noted. Liver/spleen studies during that hospitalization showed slight splenomegaly and that the liver and spleen were otherwise normal. Hepatitis was not diagnosed during that hospitalization. In connection with a private gastroenterology consultation in May 1978, the veteran provided a history of liver trouble since age thirteen. The physician noted that the veteran had had numerous episodes of gastrointestinal symptomatology, usually several per year, since having had viral hepatitis at the age of thirteen. The physician noted that the veteran had had some abnormal liver biochemistries, although acknowledging that the veteran's records had not arrived and had not been reviewed. The veteran denied having been overtly jaundiced and also denied the use of parenteral drugs or significant amounts of alcohol. The impression after examination was possible chronic active hepatitis. A follow-up in June 1978 indicates that the veteran underwent elective liver biopsy. The physician noted that the veteran had had elevation of his serum transaminases for several years, with a positive hepatitis B antibody. The impression prior to biopsy was chronic active liver disease versus benign persistent hepatitis. The biopsy was consistent with benign persistent hepatitis. VA treatment records dated in May 1979 indicate that the hepatitis was diagnosed when the veteran was thirteen years old and that he used heroin during service "13 years ago" along with barbiturates, opiates and tranquilizers. In October 1980, the veteran submitted depositions from physicians, a social worker and a publisher taken in connection with a civil lawsuit brought by the veteran against a civilian doctor. In one deposition, dated in October 1978, CC, MD, stated that the veteran had a liver condition that was "most apparent around late 1976 and early January 1977." Transcript of Dr. CC's deposition at 25. Dr. CC stated that to his knowledge, the veteran had "no problems with hepatitis between the ages of 13 and when I saw him, when he was about 21, and I really would not expect that his hepatitis he had at the age of 13 was the source of his chronic active hepatitis." Id. at 27. Dr. CC also stated that the use of Bellergal and Valium, even to excess, could conceivably cause hepatitis, but that it was "also likely that if it did, with cessation of the medication, the liver should return to normal." Id. at 50. Dr. CC stated that the veteran's liver should return to normal even if he had hepatitis at the age of thirteen. Id. In another October 1978 deposition, KJ, MD stated that the veteran told him that he was using heroin prior to 1973. Transcript of Dr. KJ's deposition at 13. Dr. KJ also indicated that he was aware that the veteran had been treated for heroin addiction at a VA medical center. Id. at 31. In an October 1978 deposition, ST testified that the veteran had used heroin in the summer of 1975. Transcript of ST's deposition at 50. The October 1978 deposition of GR, who was a social worker and drug and alcohol counselor, and who treated the veteran during active service, shows GR testified the veteran told him after his active service that he had used heroin. Transcript of GR's deposition at 29. An operative report dated in September 1981 and signed by DP, MD, reflects that the veteran had a fifteen-year history of hepatitis, and that a liver biopsy was indicative of hepatitis. In a letter to VA dated in January 1982, Dr. DP reported that he had treated the veteran since August 1981, and that the veteran had been hospitalized several times for abdominal pain related to chronic liver disease and peptic ulcer disease. Dr. DP stated that the veteran's "GI diagnoses do date to his military service, as documented by his therapy for these disorders while in the military." In a letter dated in February 1983, Dr. DP reported treatment of the veteran since July 1981, and stated that the veteran was disabled from chronic pancreatitis and chronic active hepatitis. Dr. DP stated that he had traced the veteran's records extensively, that his hepatitis "does date to his military service," and that this "can be confirmed by reviewing his military records." The veteran was privately hospitalized from February to March 1983. Diagnoses included chronic active hepatitis. A history and physical report notes that the veteran had a long history of abdominal pain, and that his history dated to age thirteen when he had infectious hepatitis. It was noted that he had had an abnormal liver scan in 1980 with hepatomegaly and splenomegaly. In a report of a July 1984 VA fee basis psychiatric evaluation, the examiner noted the veteran had liver disease with chronic elevation of liver enzymes, which he may have had since he was a teenager. The examiner also indicated that the veteran had a history of substance abuse including cocaine, heroin and barbiturates. A report of a VA May 1991 fee basis psychiatric examination shows the veteran had a history of chronic liver disease, which had existed prior to active service. In a statement dated in November 1992, Dr. DP reported that the veteran "required (sic)" hepatitis B at the age of twelve, per the records of his attending physician Dr. RS. The original diagnosis was stated to be duck refuge botulism. The evidence submitted subsequent to the unappealed April 1993 confirmed rating decision wherein the RO declined to reopen the claim of entitlement to service connection for hepatitis B is reported in pertinent part below. In a letter dated in November 1995, Dr. DP indicated that the veteran had chronic hepatitis B, and based on his extensive research of the veteran's records, he concluded that "this disease process dates to the time of his military service." VA medical records, received pursuant to the Board's development, reflect that in July 2000, it was indicated the veteran reported that hepatitis B was originally diagnosed, but that the diagnosis of his disorder was changed to hepatitis C when the test for hepatitis C became available. It was reported that the veteran had the hepatitis C virus and that he had had chronic hepatitis C for about twenty-five years. The diagnosis was chronic hepatitis C infection. Criteria Finality and Materiality An application, formal or informal, which has been allowed or disallowed by the agency of original jurisdiction, becomes final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. See 38 C.F.R. § 3.160(d) (2002). A determination on a claim by the agency of original jurisdiction of which the claimant is properly notified is final if an appeal is not perfected. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 20.1103 (2002). A decision of a duly constituted rating agency or other agency of original jurisdiction shall be final and binding on all field offices of VA as to conclusions based on the evidence on file at the time VA issues written notification in accordance with 38 U.S.C.A. § 5104 (West 2002). A final and binding agency decision shall not be subject to revision on the same factual basis except by duly constituted appellate authorities or except as provided in 38 C.F.R. § 3.105. See 38 C.F.R. § 3.104(a) (2002). When a claim to reopen is presented under section 5108, the Secretary must first determine whether the evidence presented or secured since the last final disallowance of the claim is new and material. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a) (2001); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). In Hodge, the United States Court of Appeals for the Federal Circuit (hereafter "CAFC") noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it would not be enough to convince the Board to grant a claim. Id. at 1363. If new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108 (West 1991); Hickson v. West, 12 Vet. App. 247 (1999); Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). An RO determination as to whether evidence is "new and material" for purposes of reopening is subject to de novo adjudication by the Board. Barnett, 83 F.3d at 1383. New and material evidence is defined as evidence not previously submitted to agency decision makers which bears directly and substantially upon the specific matter under consideration; which is neither cumulative nor redundant; and which, by itself or in connection with evidence previously assembled, is so significant that it must be considered in order to fairly decide the merits of the claim. See 38 C.F.R. § 3.156(a) (2002). It has been held that, in accordance with 38 C.F.R. § 3.156, evidence is new and material if it (1) was not of record at the time of the last final disallowance of the claim and is not merely cumulative of evidence of record; (2) is probative of the issue at hand; and (3) is significant enough, either by itself or in connection with other evidence in the record, that it must be considered to decide the merits of the claim. See Anglin v. West, 203 F.3d 1343, 1345-46 (Fed. Cir. 2000) (upholding the first two prongs of the Colvin new and materiality test, while defining how materiality is established (the third prong as listed above)); see also Shockley v. West, 11 Vet. App. 208 (1998); Evans v. Brown, 9 Vet. App. 273, 283 (1996); Colvin v. Derwinski, 1 Vet. App. 171 (1991). 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). In Kutscherousky v. West, 12 Vet. App. 369 (1999), CAVC held that the prior holdings in Justus and Evans that the evidence is presumed to be credible was not altered by the CAFC decision in Hodge. The Board notes that 38 C.F.R. § 3.156 was recently amended, and that the standard for finding new and material evidence has changed as a result. See 38 C.F.R. § 3.156(a) (2002). However, this change in the law is not applicable in this case because the veteran's claim was not filed on or after August 29, 2001, the effective date of the amendment. See 66 Fed. Reg. 45,620, 45,629 (August 29, 2001). Service Connection The United States will pay compensation to any veteran disabled by disease or injury incurred in or aggravated by active military service, who was discharged or released under conditions other than dishonorable from the period of service in which the disease or injury was incurred, provided the disability is not the result of the person's own willful misconduct or, for claims filed after October 31, 1990, the result of the person's abuse of alcohol or drugs. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.301 (2002). The CAVC has held that, in order to prevail on the issue of service connection, there must be medical evidence of a (1) current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson, 12 Vet. App. at 253. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. §§ 3.102, 4.3 (2002). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. Analysis The VA medical record dated in July 2000 is new and material evidence. This evidence indicates that the veteran had had hepatitis for about twenty-five years. At the time of that notation, he had been out of active service for a few days more than twenty-five years. This additional evidence bears directly and substantially upon the specific matter under consideration; is not cumulative or redundant; and, by itself or in connection with evidence previously assembled, is so significant that it must be considered to fairly decide the merits of the claim. See 38 C.F.R. § 3.156 (2002). Therefore, the claim of entitlement to service connection for hepatitis, variously diagnosed as hepatitis B and C, is reopened. As noted above, the Board is undertaking additional development on the issue of service connection for this disorder pursuant to authority granted by 38 C.F.R. § 19.9(a)(2). ORDER The veteran, having submitted new and material evidence to reopen the claim of service connection for hepatitis, variously diagnosed as hepatitis B and C, the appeal is granted to this extent. ____________________________________________ RONALD R. BOSCH Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.