Citation Nr: 1433641 Decision Date: 07/28/14 Archive Date: 08/04/14 DOCKET NO. 11-14 584 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Whether new and material evidence has been received to reopen the claim of entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs ATTORNEY FOR THE BOARD G. Wasik, Counsel INTRODUCTION The Veteran had active duty service from November 1976 to October 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The issue on appeal was initially before the Board in November 2013 when it was remanded for additional evidentiary development. At that time, the Board also referred to the RO the issue of entitlement to service connection for cirrhosis. The issue still has not been adjudicated. It is therefore, again, referred to the RO for appropriate action. FINDINGS OF FACT 1. In a March 2007 rating decision, the RO denied service connection for hepatitis C; the Veteran submitted a timely notice of disagreement with the decision but did not perfect his appeal with the timely submission of a substantive appeal. 2. The evidence added to the record subsequent to the March 2007 rating decision is cumulative of the evidence previously of record; it does not relate to an unestablished fact necessary to substantiate the claim and it does not raise a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has not been received to reopen the claim of entitlement to service connection for hepatitis C. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002) requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Additionally, the Court has held that because the terms "new" and " material" in a new and material evidence claim have specific, technical meanings that are not commonly known to VA claimants, when providing the notice required by the VCAA, it is necessary, in most cases, for VA to inform claimants seeking to reopen a previously and finally disallowed claim of the unique character of the evidence that must be presented. Kent v. Nicholson, 20 Vet. App. 1, 9-10 (2006). The record reflects that the originating agency provided the appellant with all required notice by a letter mailed in October 2009, prior to the initial adjudication of the claim. The record also reflects that service treatment records, relevant post-service treatment records, and records from the Social Security Administration have been obtained. Neither the Veteran nor his representative has identified any additional, existing evidence that could be obtained to substantiate the claim. The Board is also unaware of any such evidence. The Board acknowledges that a VA examination was not provided in response to the claim to reopen but notes that VA is not required to provide a VA examination in response to a claim to reopen if new and material evidence has not been presented. See 38 C.F.R. § 3.159(c)(4). Accordingly, the Board will address the merits of the claim. Legal Criteria 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). An exception to this rule is 38 U.S.C.A. § 5108, which provides that 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. Moreover, 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). New evidence is defined as existing 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Analysis In June 2006, the Veteran submitted a claim of entitlement to service connection for hepatitis C. He indicated on the application for compensation that the disorder began in 2002. In March 2007, the RO denied service connection for hepatitis C. The RO denied the claim because there was no medical evidence showing that the currently diagnosed hepatitis C was incurred in or caused by military service. The evidence of record at that time consisted of the Veteran's statements, service treatment records, VA outpatient treatment records and the report of a January 2007 VA examination. The service treatment records were negative for evidence of hepatitis C, and there was no post-service medical evidence of the disorder until many years after service. A February 2005 VA clinical record reveals that the Veteran reported multiple hepatitis C risk factors of intravenous drug use, cocaine use, alcohol abuse and multiple sex partners. The report of the January 2007 VA examination reflects the examiner's opinion that the hepatitis C was not likely related to the Veteran's active duty service. A VA treatment record dated in July 2007 includes a reference to the disorder having been present for the past 20 years. The Veteran was informed of the March 2007 denial of his claim and of his appellate via correspondence dated in April 2007. The Veteran submitted a timely notice of disagreement in April 2008 but he did not perfect his appeal with the submission of a timely substantive appeal after the May 2009 statement of the case was issued. In August 2009, the Veteran submitted the current claim to reopen. The pertinent evidence received subsequent to the March 2007 rating decision consists of VA clinical records, records from the Social Security Administration and statements from the Veteran. The Board finds that none of this evidence satisfies the definition of new and material evidence. The VA clinical records which were received subsequent to the March 2007 rating decision include references to the presence of hepatitis C. Significantly, the records do not indicate, in any way, that the disorder is etiologically linked to the Veteran's active duty service. These records are cumulative in nature in that they continue to show that the presence of hepatitis C many years following the Veteran's discharge from service. The records are not material because they do not tend to establish a previously unestablished fact, namely that the hepatitis C was present during active duty or is etiologically related to such service. Thus, the VA medical records could not raise a reasonable possibility of substantiating the claim. The records from Social Security Administration reference the presence of hepatitis C but do not indicate, in any way, that the disorder is etiologically related to the Veteran's active duty service. These records also are cumulative in nature in that they continue to show the presence of hepatitis C many years following the Veteran's discharge from service. The records are not material because they do not tend to establish a previously unestablished fact, namely that the hepatitis C was present during active duty or is related to such service. Thus, the Social Security records could not raise a reasonable possibility of substantiating the claim. The Veteran has submitted a statement in December 2009 indicating that his hepatitis C was the result of in-service drug abuse. He wrote that he began injecting methamphetamines during active duty to stay awake as a result of extreme exhaustion. Evidence that the Veteran used intravenous drugs was of record at the time of the prior final denial. Service connection for hepatitis C on the basis of substance abuse in service is precluded. See 38 U.S.C.A. § 1131. Therefore, the Veteran's statement is not material. Accordingly, reopening of the claim is not in order. ORDER New and material evidence not having been received, reopening of the claim of entitlement to service connection for hepatitis C is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs