Citation Nr: 1241087 Decision Date: 12/03/12 Archive Date: 12/12/12 DOCKET NO. 10-29 560 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Whether new and material evidence has been received to reopen a service connection claim for hepatitis C. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD N. Lee, Associate Counsel INTRODUCTION The Veteran served active duty from February 1978 to February 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an July 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, that denied the benefit sought. The Board notes that the Veteran requested a Travel Board hearing in connection with his current claim. The Veteran subsequently withdrew his request for a Travel Board hearing in April 2012. FINDINGS OF FACT 1. In a July 2002 rating action, the RO denied the Veteran's claim of service connection for hepatitis C and in an August 2002 letter, notified him of the determination and of his appellate rights, but he did not appeal the determination and the decision became final. 2. The evidence received since the July 2002 rating decision is not duplicative or cumulative of evidence previously of record and raises a reasonable possibility of substantiating the Veteran's hepatitis C claim. 3. The Veteran's hepatitis C had its onset in service. CONCLUSION OF LAW 1. The November 2002 rating decision that denied service connection for hepatitis C is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302, 20.1103 (2002). 2. Evidence received since the November 2002 rating decision is new and material; the claim of entitlement to service connection for hepatitis C is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. §§ 3.156(a) (2012). 3. Hepatitis C was incurred in service. 38 U.S.C.A. §§ 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board reopens the Veteran's hepatitis C service connection claim, and grants service connection for hepatitis C, which represents a complete grant of the benefit sought on appeal. As such, no discussion of VA's duty to notify or assist is necessary. New and Material Claim In the July 2008 rating decision on appeal, while noting that service connection had previously been denied for hepatitis C, the RO considered the merits of the appeal, implicitly reopening the Veteran's hepatitis C claim; the RO also confirmed and continued the denial of service connection for this disease. Thus, the preliminary question of whether the previously denied claim should be reopened is a jurisdictional matter that must be addressed by the Board before considering the underlying claim on its merits. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As such, the Board must address the threshold question of whether new and material evidence has been received since the last final determination. In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the United States Court of Appeals for Veterans Claims (Court) stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. at 118. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decision makers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. The last final determination regarding the Veteran's claim for service connection for hepatitis C was in a July 2002 rating action. At that time, the evidence of record included service and post-service treatment records, and statements from the Veteran. However, the RO concluded that the evidence of record failed to demonstrate that the Veteran's hepatitis C was incurred in or aggravated by military service, or had its onset within one year of separation. The Veteran did not file a notice of disagreement with the July 2002 rating decision and no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of the rating decision. See 38 C.F.R. § 3.156(b) (2011); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the July 2002 rating decision became final based on the evidence then of record. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). In November 2007, the Veteran filed an application to reopen his claim of service connection for hepatitis C. Since July 2002, evidence has been added to the claims file. The additional evidence of record consists of VA treatment records dated through September 2008, an April 2009 private opinion letter relating the Veteran's hepatitis C to service, and a December 2009 VA examination report acknowledging the Veteran's unsafe sex practices and tattoos in service. The medical records received since July 2002 reflect that the Veteran has consistently reported that he engaged in unsafe sex, and had tattoos in service; they also reflect that in August 2004, whereupon he had no active claim, he reported that he contracted hepatitis C while in service. The private opinion letter and VA examination report contain evidence that address a link between the Veteran's hepatitis C and service. In light of the newly submitted records and contentions when considered with previous evidence of record, the hepatitis C service connection claim must be reopened, and therefore is addressed on the merits below. Service Connection Claim The Veteran presently seeks service connection for hepatitis C, maintaining that this condition had its onset in service and/or is related to such service. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Risk factors for hepatitis C include intravenous 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. VBA Fast Letter (98-110) November 30, 1998. A Veteran may have been exposed to the hepatitis C virus (HCV) during the course of his or her duties as a military corpsman, a medical worker, or as a consequence of being a combat Veteran. VBA Fast Letter 04-13 June 29, 2004. The Board also points out that, consistent with the Veteran's contentions, there was no test to available to detect the presence of HCV until 1989. See VBA Fast Letter 98-110; see also http://consensus.nih.gov/1997/1997HepatitisC105html.htm. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). As an initial matter, the Board notes that the evidence of record sufficiently establishes the Veteran's current diagnosis of hepatitis C. See "Diagnosis," December 2009 VA Examination Report. The determinative issue is whether this diagnosis is related to military service. The Veteran's service treatment records do not reveal any complaint, diagnosis, or treatment for any liver disorder or hepatitis infection. The Veteran's February 1978 and October 1980 enlistment and separation examinations document no identifying body marks, scars or tattoos. However, as will be discussed in greater detail below, the Board finds that the Veteran did receive tattoos in service, as submitted photographic evidence has been corroborated by the findings of the December 2009 VA examination report. Additionally, review of the service treatment records shows that the Veteran was diagnosed and treated for herpes zoster and gonorrhea in service. Therefore, in light of the available evidence and the benefit-of-the-doubt doctrine, the Board finds that the Veteran engaged in unsafe practice and obtained tattoos in service, both of which are contributing factors in the transmission of hepatitis C. The Veteran first sought VA treatment in December 1997. At that time he was noted to have hepatitis C. By way of history, the records indicate that he was seen at Stanford Medical Center in 1985 for a liver biopsy, whereupon he was diagnosed with "non-A, non-B" hepatitis - it should be noted that at that time a diagnosis of hepatitis C did not exist, as hepatitis C was not classified at that time. See VA Examination Report, December 2009. The treatment records reflect the Veteran detailed in-service hepatitis C risk factors to include unsafe sexual practices and obtaining tattoos. The record also indicates the Veteran having reported a history of intranasal cocaine use; however, VA treatment records show that he has consistently asserted he ceased its abuse in 1983. In a private opinion letter dated April 2009, Dr. Bradley indicated that the Veteran's hepatitis C had most probably been acquired in service as the result of tattoos or unsafe sex. He noted that cirrhosis of the liver had been associated with hepatitis C, and that "the extent of disease suggests that he acquired it while serving in the armed forces." In support of this determination, Dr. Bradley noted that the Veteran had submitted evidence showing he received tattoos and had contracted venereal disease in service. While he noted there were other means in which the Veteran could have contracted hepatitis C, he ultimately opined that "[r]egardless of source, the onset of his infection appears to have been during his time in the military." At a December 2009 VA examination, the examiner reviewed the claims file and conducted a clinical evaluation. In reviewing the claims file, the VA examiner specifically referenced photographic evidence provided by the Veteran, and a private opinion letter from Dr. Bradley; the photo is of record. This photograph was allegedly taken shortly after graduating from basic training and shows the Veteran with two tattoos, one on each arm. The VA examiner noted that the Veteran's present tattoos matched the tattoos in the photograph. As it relates to the private opinion letter from Dr. Bradley, she noted his findings, but disagreed, as she stated that although a review of the medical literature does show that unsafe sex practices can result in the transmission of hepatitis C, the rate of transmission was rare. At the same time, she noted that the Veteran had had multiple sexual partners in service, contracted gonorrhea in service, and had not worn condoms while engaging in unsafe sex in service; while not going so far as to confirm the Veteran obtained his tattoos in service, she did confirm that he had tattoos in service. She ultimately concluded that it was not possible to state whether the Veteran's hepatitis C could be attributed to unsafe sexual practices during military service without resorting to mere speculation. She did not opine as to whether the Veteran's obtaining tattoos could have been a contributing factor to his hepatitis C. Initially, the Veteran has provided a competent and credible account of two in-service hepatitis C related risk factors, to include unsafe sexual practices, and being tattooed. Jandreau v. Nicholson, 492 F.3d. His account of in-service risk factors has also remained relatively consistent with his service treatment records, evidencing unsafe sex practices in service, and tending to at least partially corroborate his report (i.e., in-service tattoos). What is more, the Veteran submitted photographic evidence showing tattoos in service, and during the December 2009 VA examination, the VA examiner confirmed the tattoos matched those on the Veteran's arm. These factors together make the Veteran's statements, as to these matters, competent, credible and highly probative. See Buchannan v. Nicholson, 19 Vet. App. 362, 367-68 (2005) (it is the Board's responsibility, as fact-finder, to determine the credibility and weight to be given to the evidence). In any service connection claim, competent medical evidence and opinions are highly probative in establishing the claim. The private physician noted that the Veteran had received tattoos, engaged in unsafe sex practices, and received venereal disease in service. Specifically he noted that the extent of the disease (hepatitis C with associated cirrhosis) suggests that the onset of his infection appears to have been during his time in the military. On the other hand, the December 2009 VA examiner indicated she could not state whether the Veteran's hepatitis C could be attributed military service without resorting to mere speculation; however, she specifically acknowledged the presence of in-service hepatitis risk factors. Thus, the VA examination report evinces at a minimum, a competent medical suggestion that currently diagnosed hepatitis C could be related to military service. Thus, the Board finds both the private opinion by Dr. Bradley and the VA opinion probative evidence tending to support the Veteran's claim. See Washington, supra; see also Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). In sum, the evidence confirms the Veteran's diagnosis of hepatitis C, and supports a finding that he has provided a competent and credible account of in-service hepatitis C risk factors. What is more, the private opinion directly relates the Veteran's hepatitis C to service, and the December 2009 VA examination report provides a competent medical suggestion it may be related to military service. Thus, resolving all reasonable doubt in the Veteran's favor, service connection for hepatitis C is warranted, and the claim is granted. ORDER New and material evidence has been received to reopen a claim of entitlement to service connection hepatitis C and, to this extent, the claim is granted. Service connection for hepatitis C is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs