Citation Nr: 1429985 Decision Date: 07/02/14 Archive Date: 07/10/14 DOCKET NO. 08-19 720 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hepatitis C and, if so, whether the reopened claim should be granted. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Patricia Veresink INTRODUCTION The appellant served on active duty from October 1966 to October 1968. This appeal comes before the Board of Veterans Appeals (Board) from a December 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine. The Veteran testified at a hearing before the undersigned Veterans Law Judge in August 2009. A transcript of that hearing has been associated with the claims file. FINDINGS OF FACT 1. An August 2004 rating decision denied service connection for hepatitis C, the Veteran did not file a timely notice of disagreement regarding that decision, and no new and material evidence was submitted to VA within the applicable appeal period. 2. Evidence that relates to an unestablished fact necessary to substantiate the claim and that raises a reasonable possibility of substantiating the claim of service connection for hepatitis C has been received since the most recent prior rating decision. 3. The Veteran's hepatitis C did not manifest during service and is not causally or etiologically related to service. CONCLUSIONS OF LAW 1. The August 2004 rating decision is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2013). 2. New and material evidence has been received since the prior final denial of a hepatitis C service connection claim, to reopen the claim. 38 U.S.C.A. §§ 1131, 5103, 5108 (West 2002); 38 C.F.R. §§ 3.156, 3.303 (2013). 3. The criteria for service connection for hepatitis C have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In this Veteran's case, the decision to reopen the claim for service connection for hepatitis C renders moot the question of whether VCAA notice was in compliance with that aspect of the appeal. The record shows that through a VCAA letter dated August 2006, VA's notice requirements were met with respect to the issue of entitlement to service connection on the merits addressed in this decision. The Board also finds that there has been compliance with the VCAA assistance provisions. The record in this case includes service treatment records, VA treatment records, private treatment records, and lay evidence. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case, and no further action is necessary. See generally 38 C.F.R. § 3.159(c). No additional pertinent evidence has been identified by the Veteran. The Veteran was not examined with respect to his hepatitis C claim, because there is no indication beyond his and his wife's conclusory, generalized statements indicating that his current disability could be related to service through a blood transfusion, an injection gun, dead body exposure, or other exposure. New and Material Evidence - Left Ankle The Veteran's claim to reopen involves a claim of entitlement to service connection for hepatitis C. 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 line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. 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). A review of the record shows that a claim of service connection for hepatitis C was originally denied in August 2004, due to the lack of evidence relating the Veteran's hepatitis C to his experiences in service. The Veteran did not file a notice of disagreement regarding the August 2004 rating decision. Therefore, that decision became final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2013). The Veteran also did not submit any information or evidence within one year of the August 2004 rating decision to render the decision non-final for VA purposes. See 38 C.F.R. § 3.156(b) (2012); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011) (holding that when statements are received within one year of the rating decision, the Board's inquiry is not limited to whether the statements constitute notices of disagreement, but whether they include the submission of new and material evidence under 38 C.F.R. § 3.156(b).). As a general rule, a claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to a claim that is final. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. When an appellant seeks to reopen a final decision, the first inquiry is whether the evidence presented or secured after the last disallowance is "new and material." Under 38 C.F.R. § 3.156(a), new evidence means evidence not previously submitted to agency decision makers. Material evidence means 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). When determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). If it is determined that new and material evidence has been received, the claim must be reopened and VA may then proceed to the merits of the claim on the basis of all the evidence of record. The Court has held that there is a very low threshold for reopening claims, stating that the requirements in the regulations that the evidence "raises a reasonable possibility of substantiating the claim" should be read as enabling reopening rather than precluding it. Shade v Shinseki, 24 Vet. App. 110 (2010). In this case, the RO originally denied service connection for hepatitis C in August 2004, as the evidence failed to show a nexus between the Veteran's service and his current diagnosis. Since then, the Veteran has submitted internet evidence from a Veteran's website that asserts an injection gun may be a cause of hepatitis C. The Board again notes that in cases of reopening, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Therefore, as this was not of record at the time of the prior denials and the credibility of the evidence is not at issue, it raises a reasonable possibility of substantiating the claim. Accordingly, the Board finds that the additional evidence is new and material within the meaning of 38 C.F.R. § 3.156, warranting reopening of the claim of service connection for hepatitis C. Service Connection - Laws and Regulations As indicated above, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 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). 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 has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran contends that he has hepatitis C that is causally or etiologically related to use of an injection gun, receipt of a blood transfusion, or carrying dead bodies off the planes as they arrived back in the United States from Vietnam. Service treatment records are silent regarding any complaints, treatment, or diagnosis of hepatitis C symptoms. The evidence indicates and the Veteran acknowledges that he was diagnosed with hepatitis C almost three decades after separation from service. Therefore, the Board finds that the Veteran's hepatitis did not manifest during service. While the Veteran has a current diagnosis of hepatitis C, and the Board acknowledges that it is possible that the Veteran received inoculations or immunizations by way of an air injection gun, there is a complete absence of any competent medical evidence that shows that the Veteran's Hepatitis C was due to inoculations or immunizations he received during service by way of an air injection gun. The Board also notes that although a Veterans Benefit Administration (VBA) Fast Letter indicates that it is "biologically plausible" for transmission of Hepatitis C through the use of jet injectors, it points out that this is "[d]espite the lack of any scientific evidence to document transmission of HCV with airgun injectors." VBA Fast Letter 04-13 (June 2004). It also states that the source of infection is unknown in ten percent of acute Hepatitis C cases and thirty percent of chronic Hepatitis C cases. Id. Therefore, it is reasonably possible to contract Hepatitis C without being able to pinpoint the cause. The Board acknowledges the Veteran's reliance on the unsubstantiated internet site and the opinion provided in April 2004 by the private medical provider. The Board notes that the internet article appears to be unsupported by scientific or medical evidence. It appears to be run by lay persons attempting to help veterans with hepatitis C claims. Additionally, the Board finds that the April 2004 opinion, which notes that the source of his infection remains uncertain but that it remains possible for a jet injector to be a source, is so tentative, by its own terms, so as to be of very little probative value. The Court has previously held that an opinion that is unsupported and unexplained is purely speculative and does not provide the degree of certainty required for medical nexus evidence. See Bloom v. West, 12 Vet. App. 185, 187 (1999); See also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (finding doctor's opinion that "it is possible" and "it is within the realm of medical possibility" too speculative to establish medical nexus); Goss v. Brown, 9 Vet. App. 109, 114 (1996) (using the word "could not rule out" was too speculative to establish medical nexus); Warren v. Brown, 6 Vet. App. 4, 6 (1993) (medical opinion expressed only in terms such as "could have been" is not sufficient to reopen a claim of service connection); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (medical opinion framed in terms of "may or may not" is speculative and insufficient to support an award of service connection for the cause of death); Obert v. Brown, 5 Vet. App. 30, 33 (1993) (physician's statement that the Veteran "may have been having some symptoms of his multiple sclerosis for many years prior to the date of diagnosis" was insufficient to award service connection); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996) (a generic statement about the possibility of a link between chest trauma and restrictive lung disease was "too general and inconclusive" to support an award of service connection). Therefore, the Board finds that the evidence does not show that the Veteran has hepatitis C due to inoculation using a jet injector. In adjudicating a claim, the Board must assess the competence and credibility of the Veteran. The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1137 (Fed. Cir. 2006). The Board notes that the record contains contemporaneous medical evidence. The evidence of record contradicts the Veteran's account that he had a blood transfusion during his hospitalization. The service treatment records show detailed medical records of the Veteran's surgery, but do not indicate any blood transfusions. The Board notes that a blood transfusion is not a small medical complaint, but a serious medical procedure. The Veteran's service treatment records are thorough, showing treatment for multiple complaints throughout his active service. In addition, during the August 2009 hearing, the Veteran stated that he believed he had a blood transfusion due to the fact that he woke up with tubes in his arms. The medical records indicate that the Veteran had IVs administered during his surgical treatment. The Board finds that in this instance, the lack of medical evidence of a transfusion weighs against the Veteran's credibility. As the medical evidence does not support the Veteran's claim that a blood transfusion occurred in service, any medical opinion based upon that statement is unsubstantiated. The Board notes that the Veteran also asserts that carrying dead bodies off of planes upon their return to the United States could have caused exposure. The record contains no evidence that limited exposure to bodies that were contained within body bags would result in exposure to hepatitis C. Additionally, the Veteran reported in a December 2002 treatment record that his hepatitis C was caused by needle sharing for injection drugs. Although the Veteran later asserted that he meant the air injection gun, the Board notes that such histories reported by the Veteran for treatment purposes are of more probative value than the more recent assertions and histories given for VA disability compensation purposes. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). The Board also notes that the Veteran changed his recollection of risk factors as the claim progressed. He originally claimed that he was exposed to blood during a transfusion or air injection gun use, but later claimed it was due to exposure to dead bodies. These inconsistencies in the record weigh against the Veteran's credibility. See Madden v. Gober, 125 F.3d 1477, 1481 (Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (upholding Board's finding that a veteran was not credible because lay evidence about a wound in service was internally inconsistent with other lay statements that he had not received any wounds in service). The record does not contain any indication that the Veteran's hepatitis C is causally related to his active service. As such, the Board finds that a preponderance of the evidence is against the claim for service connection for hepatitis C. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable, and the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER New and material evidence having been received, the claim for entitlement to service connection for hepatitis C is reopened. Service connection for hepatitis C is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs