Citation Nr: 1134287 Decision Date: 09/13/11 Archive Date: 09/22/11 DOCKET NO. 04-35 743 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in White River Junction, Vermont THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hepatitis. 2. Entitlement to service connection for hepatitis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M.L. Shields, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1970 to June 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2004 rating decision of the White River Junction, Vermont, Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Video Conference hearing before the undersigned Veterans Law Judge in April 2009. A transcript of the hearing is associated with the claims file. In a June 2009 decision, the Board remanded this matter back to the RO for further development. The case is now back before the Board, and as such, the Board will proceed at this time with the adjudication of the Veteran's claim. FINDINGS OF FACT 1. In an unappealed October 1972 decision, the RO denied the Veteran's claim for service connection for hepatitis because the Veteran's hepatitis was not incurred or aggravated by his military service. The Veteran did not appeal this rating decision. 2. Evidence received since the October 1972 RO decision is not duplicative or cumulative of evidence previously of record and raises a reasonable possibility of substantiating the claim for service connection for hepatitis. 3. The Veteran is currently diagnosed with hepatitis. 4. Resolving all doubt in the Veteran's favor, the evidence of record reveals that the Veteran's hepatitis is connected to his military service. CONCLUSIONS OF LAW 1. The October 1972 RO decision that denied entitlement to service connection for hepatitis is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2010); 38 C.F.R. § 20.1103 (2010). 2. Evidence received since the October 1972 RO decision that denied entitlement to service connection for hepatitis is new and material, and the claim is reopened. 38 U.S.C.A. §§ 5108, 7104, 7105 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.156, 20.1105 (2010). 3. The Veteran's hepatitis is proximately due to, or the result of, an injury sustained by the Veteran during his military service. 38 U.S.C.A. §§ 1101, 1110 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act (VCAA), codified, in part, at 38 U.S.C.A. § 5103, was signed into law on November 9, 2000. Implementing regulations were created, codified at 38 C.F.R. § 3.159 (2010). The legislation has eliminated the well-grounded claim requirement, has expanded the duty of VA to notify the appellant and the representative, and has enhanced its duty to assist an appellant in developing the information and evidence necessary to substantiate a claim. See generally VCAA. In this case, the Board finds that the RO has substantially satisfied the duties to notify and assist, as required by the VCAA. To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with the above-referenced issues given the fully favorable nature of the Board's decision. The Board is also satisfied that the development requested by its June 2009 Remand has now been satisfactorily completed and substantially complied with. This includes action to determine whether the RO's October 1972 rating decision contained clear and unmistakable evidence and to issue the Veteran and his representative VCAA notice relative to the issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for hepatitis. These efforts are documented in the claims file. Only substantial, and not strict, compliance with the terms of a Board remand is required. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999); D'Aries v. Peake, 22 Vet. App. 97 (2008). Pertinent Facts and Evidence Prior to the current claim, the Veteran's claim for entitlement to service connection for hepatitis was last denied by the RO in an October 1972 decision. The evidence of record prior to the October 1972 RO decision denying service connection for hepatitis consists of items such as the Veteran's service medical records and the Veteran's DD 214 Form. The Veteran's service medical records are absent of any complaints or findings of hepatitis. Having said this, a March 1972 service medical indicates the Veteran received a root canal of the number nine tooth while stationed in Japan. The Veteran's DD 214 Form reflects that the Veteran served on active duty with the Marine Corps from June 1970 to June 1972 and that he had received a Rifle Marksman Badge. The DD 214 Form also reflects that the Veteran's military occupation specialty (MOS) was that of a Combat Engineer. A May 1998 private medical record indicates the Veteran was diagnosed with hepatitis B and hepatitis C by Dr. H.P, M.D. The Veteran was diagnosed with hepatitis C in private medical records dated August 1998. In a December 2003 Statement, the Veteran stated within two weeks of his discharge from military service in June 1972, he became ill and his eyes and skin became yellow. The Veteran stated he went to the VA medical center in Jamaica Plain, Massachusetts where he was admitted for six days for treatment for hepatitis. The Veteran asserted he contracted hepatitis while going to the dentist while stationed in Japan, stating that the dentist injected him with novacane with the same needle used on a previous patient. By correspondence dated February 2004, VA notified the RO that the June 1972 treatment records from the Jamaica Plain VA medical center were unable to be located. In an April 2004 Statement, the Veteran stated he went to the base dentist while stationed overseas in 1972. The Veteran further stated that after the dentist gave the Veteran a shot of novacane, the dentist called in his assistant and scolded him for not removing the tray of instruments that was used on the patient prior to himself. Based on this interaction between the dentist and his assistant, the Veteran concluded that the dentist used the same needle on the Veteran that he used on a prior patient and it was at that point the Veteran believes he was exposed to hepatitis. The Veteran also reported that following his discharge in June 1972 that his skin, eyes and fingernails became jaundiced. The Veteran then stated he was admitted to the Jamaica Plain VA medical center and quarantined while a battery of tests, which included a liver biopsy, was administered to him. The Veteran reported, after the tests were completed, that he was diagnosed with hepatitis B. The Veteran also reported in his April 2004 Statement that he and his wife, R.W., consented to join a five-year study concerning his hepatitis. In his October 2004 VA Form 9, the Veteran indicated the hepatitis study lasted from 1972 to 1977. However, in a letter dated October 2004, the Veteran was informed by the Boston VA medical center that the records relating to the hepatitis study he and his wife participated in were destroyed fifteen years following the conclusion of the study in 1992. The Veteran and R.W. testified before a Decision Review Officer (DRO) in October 2004. The Veteran testified that it was his assertion that he was exposed to hepatitis while visiting the dentist in Japan in March 1972. The Veteran admitted the dentist never told him he used the same needle as the patient before him, but he knew that was what happened because the tray of instruments used on the Veteran was the same one used for the prior patient. The Veteran further testified that his skin and eyes began turning yellow approximately a week following his discharge in June 1972. The Veteran stated he was admitted to the Jamaica Plain VA medical center in July 1972 where he was diagnosed with hepatitis B after being quarantined for six days. The Veteran reported he was later diagnosed with hepatitis C in 1998. The Veteran also testified that he and his wife participated in a 5-year hepatitis study that lasted from 1972 to 1977. The Veteran stated he did not go back to the Jamaica Plain VA medical center following his diagnosis in 1972 because he had gotten a job that had health insurance, and as such, he went to a private doctor for treatment. R.W. testified that the Veteran's skin and eyes became jaundiced within one to two weeks following his separation from service prior to the Veteran's family going on vacation in July 1972. The Veteran participated in a VA examination in December 2004. The VA examiner referred to the August 1998 private medical record whereby the Veteran was diagnosed with hepatitis C as evidence of the presence of the disease. The Veteran stated he believed that he may have been exposed to hepatitis from an injection he received at the dentist's office and denied intravenous drug use, needle stick injury and/or being sexually active with multiple partners of both sexes. The VA examiner noted the Veteran had large tattoos covering his upper extremities and further noted that these tattoos were also a source of potential infection. The VA examiner described the following conditions relative to hepatitis C infection: (1) acute hepatitis C virus leads to chronic infection (60 to 80 percent of cases develop chronic hepatitis); (2) chronic hepatitis C virus infection is usually slowly progressive (approximately 20 to 30 percent of chronically infected individuals develop cirrhosis over a 20 to 30 year period of time); (3) the majority of acutely infected patients are asymptomatic and have a clinically mild course; (4) jaundice is present in fewer than 25 percent of cases; (5) in patients who experience acute symptoms, the illness typically lasts for 2 to 12 weeks; (6) the risk of chronic infection after an acute episode of hepatitis C is high (in most studies, 80 to 100 percent of patient remain hepatitis C positive and 60 to 80 percent have persistently elevated liver enzymes); and (7) the rate of spontaneous clearance of virus after it has persisted for at least six months is very low. The VA examiner also noted that a number of extrahepatic diseases have been associated with chronic hepatitis C virus infection, namely, diabetes mellitus. The VA examiner noted the Veteran is currently diagnosed with diabetes mellitus and is currently on a regimen of Insulin daily. Based on the foregoing information and after reviewing the Veteran's claims file, the VA examiner diagnosed the Veteran with hepatitis C with normal liver function tests, asymptomatic. The VA examiner also concluded that it was as least as likely as not that the Veteran's hepatitis C could have manifested itself within a month of exposure. In an Addendum opinion dated January 2005, another VA examiner opined that it was at least as likely as not that the Veteran contracted hepatitis C from a contaminated needle in service; however, without the records at that time, the VA examiner surmised it would be impossible to definitely say one way or the other. Either way, the VA examiner diagnosed the Veteran with chronic hepatitis C virus with minimal evidence of progressive disease. A March 2005 VA treatment record indicates the Veteran was determined to be serologically negative for hepatitis C. A May 2005 VA treatment record also indicates the Veteran tested negative for hepatitis C in December 2004. The Veteran testified via Video Conference before the undersigned Veterans Law Judge in April 2009. The Veteran's account of the facts was the same as was given before the DRO in October 2004. The Veteran pointed to Centers for Disease Control materials indicating that hepatitis symptoms occur six to seven weeks following exposure. The Veteran also admitted he had not been treated for hepatitis C symptoms since July 1972. The Veteran further testified he filled out his service connection claim for hepatitis while he was in the Jamaica Plain VA medical center in July 1972. A letter dated April 2009, was submitted by R.W., whereby she reported the Veteran developed symptoms of hepatitis C approximately two weeks following his discharge from service in July 1972. R.W. stated the Veteran's symptoms included his skin and eyes becoming jaundiced. R.W. further reported the Veteran was taken to the Jamaica Plain VA medical center where he was diagnosed with hepatitis. R.W. stated she visited the Veteran in the hospital every day and she was not allowed in the room as the Veteran had been quarantined. R.W. also reported she and her daughter had to be tested for hepatitis at the time of the Veteran's hospitalization. R.W. stated she and the Veteran agreed to be on a 5-year hepatitis study the VA was conducting and she indicated that blood was drawn from she and the Veteran every couple of months. R.W. stated neither she nor the Veteran was informed of the results of the study. In another letter dated April 2009, R.W.*, the Veteran's brother, stated the Veteran had been hospitalized at the Jamaica Plain VA medical center in July 1972 due to the Veteran being jaundiced and discolored. R.W.*, stated he remembered the Veteran was hospitalized for a period of five to six says and that while the Veteran was hospitalized he visited him. In a letter dated May 2009, S.W., the Veteran's mother, submitted a letter whereby she stated the Veteran's skin and eyes turned yellow after being home from the service for two weeks. S.W. further stated R.W. took the Veteran to the Jamaica Plain VA medical center where he was hospitalized with hepatitis for six days and was quarantined. S.W. also noted R.W. and their daughter had to be tested for hepatitis. 1. New and Material Evidence A. Pertinent Law and Regulations Regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. §§ 20.200, 20.302 (2010). Absent appeal, a decision of a duly-constituted rating agency or other agency of original jurisdiction shall be final and binding on all VA field offices as to conclusions based on the evidence on file at the time VA issues written notification. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002 & Supp. 2010). 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. 38 U.S.C.A. § 5108. 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). Notwithstanding any other section of 38 C.F.R. § 3.156, 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 and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. 38 C.F.R. § 3.156(c). In addition, for the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is generally to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). B. Analysis In Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) 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. Evidence received since the final October 1972 RO decision includes private medical treatment records, VA treatment records, a VA examination, "buddy" statements from the Veteran's spouse and family members and lay statements made by the Veteran himself. The Board finds that this newly-received evidence, when considered in conjunction with the previous evidence of record, presents a more complete picture of the origin of the Veteran's hepatitis and relates to unestablished facts that are necessary to substantiate his claim for service connection for hepatitis. The new and material evidence relevant to reopening the Veteran's claim for service connection includes: (1) a May 1998 private medical record whereby the Veteran was diagnosed with hepatitis B and hepatitis C; (2) a December 2004 VA examination whereby the Veteran was diagnosed with hepatitis C and the VA examiner concluded it was as least as likely as not that the Veteran's hepatitis C could have manifested itself within a month of exposure.; (3) a January 2005 Addendum to the December 2004 VA examination whereby a VA examiner opined it was as least likely as not the Veteran contracted hepatitis C from a contaminated needle in service; and (4) "buddy" statements submitted by R.W. and R.W.* in April 2009 and S.W. in May 2009, which all indicate the Veteran was hospitalized in July 1972 at the Jamaica Plain VA medical center and was diagnosed with hepatitis. This newly-received evidence is not considered cumulative or redundant of the evidence of record at the time of the final October 1972 RO decision, and furnishes a reasonable possibility of substantiating the Veteran's claim for service connection for hepatitis. Therefore, the Veteran's claim for service connection for hepatitis is reopened. See 38 C.F.R. § 3.156(a). 2. Service Connection for Low Back Disability A. Pertinent Law and Regulations Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from a disability resulting from an injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, in active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Certain chronic disabilities are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1110, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability, 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The requirement that a current disability exists is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). When a claimant seeks service connection for a disability, due consideration shall be given to the supporting evidence in light of the places, types and circumstances of service, as evidenced by service records, the official history of each organization in which he served, his military records and all pertinent medical and lay evidence. 38 C.F.R. § 3.303(a) (2010). B. Analysis In statements presented throughout the duration of the appeal, the Veteran has asserted he contracted hepatitis while going to the dentist in Japan, whereby the dentist injected him with novacane with the same needle used on a previous patient. In a December 2003 Statement as well as before the DRO in October 2004 and the undersigned Veterans Law Judge in April 2009, the Veteran stated within two weeks of his discharge from military service in June 1972, he became ill and his eyes and skin became yellow. The Veteran also stated he went to the Jamaica Plain VA medical center where he was admitted for six days for treatment and was diagnosed with hepatitis B. Furthermore, in an April 2004 Statement, the Veteran further stated that after the dentist gave the Veteran a shot of novacane, the dentist called in his assistant and scolded him for not removing the tray of instruments that were used on the patient prior to him. Based on this interaction between the dentist and his assistant, the Veteran concluded that the dentist used the same needle on the Veteran that he used on a prior patient and it was at that point the Veteran believes he was exposed to hepatitis. The Veteran also reported in his April 2004 Statement that he and R.W. consented to join a five-year study, which lasted from 1972 to 1977. As mentioned above, the records from the Jamaica Plain VA medical center and hepatitis study are not available. Moreover, after diagnosing the Veteran with hepatitis C with normal liver function tests, asymptomatic, the December 2004 VA examiner concluded that it was as least as likely as not that the Veteran's hepatitis C could have manifested itself within a month of exposure. Additionally, the January 2005 VA examiner diagnosed the Veteran with hepatitis C and further opined that it was at least as likely as not that the Veteran contracted hepatitis C from a contaminated needle in service. Statements submitted by R.W. before the DRO in October 2004 and in April 2009, indicate the Veteran developed symptoms of hepatitis approximately two weeks following his discharge from service in July 1972. R.W. stated the Veteran's symptoms included his skin and eyes becoming jaundiced. R.W. further reported the Veteran was taken to the Jamaica Plain VA medical center where he was diagnosed with hepatitis. R.W. stated she visited the Veteran in the hospital every day and she was not allowed in the room as the Veteran had been quarantined. R.W. also reported she and her daughter had to be tested for hepatitis at the time of the Veteran's hospitalization. S.W.'s May 2009 letter corroborates R.W.'s above testimony and statements. R.W.*'s April 2009 letter verifies that the Veteran had been hospitalized at the Jamaica Plain VA medical center in July 1972 for five to six says due to the Veteran being jaundiced and that he visited the Veteran while he was hospitalized. After a careful review of the above pertinent evidence of record, the Board finds that the Veteran suffers from hepatitis which is linked to an in-service injury and that service connection is warranted. The Board finds that the Veteran's claimed in-service exposure, wherein the Veteran was injected with a needle used with a prior patient, is somewhat corroborated by a March 1972 service treatment record, which indicates the Veteran underwent a root canal procedure. Moreover, the Board finds the Veteran's claimed in-service injury was adequately corroborated by the lay statements of the Veteran's family members as the evidence demonstrates the Veteran suffered from symptoms of hepatitis (jaundiced skin and eyes) and thus, are competent to attest as to what they witnessed. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (finding that "[w]hether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board"). In addition, the Board finds that these statements are credible to support the Veteran's claim, as they each separately corroborate the Veteran's July 1972 hospitalization and subsequent hepatitis diagnosis and are consistent with his accounts of his hospitalization throughout the record. See Smith v. Derwinski, 1 Vet. App. 235, 237-38 (1991); see also Smith v. Derwinski, 2 Vet. App. 147, 148 (1992) (holding that "VA regulations do not provide that service connection can only be shown through medical records, but rather allow for proof through lay evidence" and that lay evidence may serve to place evidence in equipoise). The Board also finds that there is a medical diagnosis of hepatitis C related to the Veteran's claimed in-service injury in the December 2004 and January 2004 VA examination reports. In this regard, the December 2004 and January 2005 VA examiners concluded that it was at least as likely as not that the Veteran contracted hepatitis C from a contaminated needle in service in March 1972 and that the Veteran's hepatitis C could have manifested itself within a month of exposure thereby making his July 1972 diagnosis possible. Thus, as there is lay evidence of an in-service injury, credible lay statements by family members who corroborated the July 1972 hospitalization and hepatitis diagnosis and current medical diagnoses of hepatitis C related to the claimed in-service injury, resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for hepatitis is warranted. 38 C.F.R. § 3.102 (2010); see also 38 U.S.C.A. § 5107(b), Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER New and material evidence thus having been received, the claim of service connection for hepatitis is reopened. Service connection for hepatitis is granted. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs