Citation Nr: 1104902 Decision Date: 02/07/11 Archive Date: 02/14/11 DOCKET NO. 09-23 311A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Anchorage, Alaska THE ISSUES 1. Whether new and material evidence exists to reopen a prior claim for entitlement to service connection for Hepatitis C. 2. Entitlement to service connection for Hepatitis C. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. D. Anderson, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1971 to May 1972. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. Jurisdiction is currently with the RO in Anchorage, Alaska. A video conference hearing was held before the undersigned Veterans Law Judge in December 2010, and a transcript of this hearing is of record. The issue of entitlement to service connection for Hepatitis C is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. An October 2004 Board decision denied entitlement to service connection for Hepatitis C; the Veteran did not appeal. 2. Evidence received since the October 2004 RO decision is new and material and the Veteran's claim is reopened. CONCLUSIONS OF LAW 1. The October 2004 Board decision that denied entitlement to service connection for Hepatitis C is final. 38 U.S.C.A. § 7105(c) (West 2002 & Supp. 2010); 38 C.F.R. § 20.1103 (2010). 2. New and material evidence has been received since the October 2004 Board decision and the Veteran's claim for entitlement to service connection for Hepatitis C is reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2010); 38 C.F.R. § 3.156 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran original claim for entitlement to service connection for Hepatitis C was denied in an October 2004 Board decision; the Veteran did not appeal. In September 2007, the Veteran filed new claim for entitlement to service connection for Hepatitis C. The RO reopened the Veteran's claim, but denied entitlement to service connection for Hepatitis C in an April 2008 rating decision. The Veteran appealed. 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). However, 38 U.S.C.A. § 5108 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. Hence, before reaching the issue of whether service connection is warranted, the Board must first determine whether the claim may be reopened. See Elkins v. West, 12 Vet. App. 209, 218-19 (1999) (en banc); see also 38 U.S.C. A. § 5108; Hodge v. West, 155 F.3d 1356, 1359-60 (Fed. Cir. 1998). New and material evidence means evidence not previously submitted to agency decision makers which is neither cumulative nor redundant, and which by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2010). The Court has clarified that, with respect to the issue of materiality, the newly presented evidence need not be probative of all the elements required to award the claim. Evans v. Brown, 9 Vet. App. 273 (1996). Rather, the reasons for the final disallowance must be considered in determining whether the newly submitted evidence is material. Id. Such evidence must tend to prove the merits of the claim as to each essential element that was a reason for that last final disallowance of the claim. Id. In Shade v. Shinseki, 24 Vet. App. 110 (2010), the United States Court of Appeals for Veterans Claims (Court) held that new evidence would raise a reasonable possibility of substantiating the claim if when considered with the old evidence it would at least trigger the Secretary's duty to assist by providing a medical opinion. The Board denied the appellant's prior claim because there was no evidence that the Veteran's Hepatitis C had onset in service or was caused or aggravated by the Veteran's active military service. Thus, for evidence in this case to be considered new and material, it must show that the Veteran's Hepatitis C is related to his naval service. The Veteran has submitted a letter from a Dr. L.G., who opined that the Veteran was likely exposed to Hepatitis C during his military service. This evidence is new and material. Accordingly, the Veteran's prior claim is reopened. The issue of entitlement to service connection for Hepatitis C is addressed in the Remand section below. As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). In this case, the Board is granting in full the benefit sought on appeal by reopening the Veteran's claim. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. ORDER New and material evidence having been received, the Veteran's prior claim for entitlement to service connection for Hepatitis C is reopened. REMAND The Veteran is seeking entitlement to service connection for Hepatitis C. He has proposed several theories as to how he contracted Hepatitis C during his military service, including receiving air-gun inoculations and cleaning out bilges without protection. The Veteran service treatment records are negative for a diagnosis of Hepatitis C or for any type of liver problems. The Veteran's military occupational specialty (MOS) was that of a machinist's mate and he may have received some training as an apprentice fireman, but there is nothing in his service treatment records or service personnel records that can confirm or contradict that the Veteran cleaned bilges during his naval service or received inoculations via an air-gun injection. Post-service, the Veteran's VA treatment records show a history of substance abuse and alcohol abuse, including possible intranasal cocaine use. He was diagnosed with Hepatitis C in 2000, almost thirty years after separation from service. In December 2002, a VA examiner concluded that it was more likely than not that the Veteran's Hepatitis C was caused by the Veteran's drug abuse and that there is no evidence that Hepatitis C could be transmitted through air-gun inoculations. In November 2008, Dr. L.G. opined that the Veteran was likely exposed to Hepatitis C during his military service based on the Veteran's report that he worked with septic tanks while in the navy. It does not appear that Dr. L.G. had access to the Veteran's claim folder or reviewed the Veteran's medical history. As there is conflicting evidence concerning the etiology of the Veteran's Hepatitis C, including evidence favorable to the Veteran's claim received after his last VA examination, the Board finds that a new VA examination is necessary to determine the etiology of the Veteran's Hepatitis C. The examiner is asked to opine whether it is at least as likely as not (fifty percent or greater) that the Veteran's Hepatitis C had onset on service or was caused or aggravated by the Veteran's active military service. Accordingly, the case is REMANDED for the following action: 1. The RO should schedule the Veteran for a VA examination of his Hepatitis C. The examiner should note any functional impairment caused by the Veteran's disability, including a full description of the effects of his disability upon his ordinary activities, if any. The VA examiner is asked to render an opinion as to whether it is at least as likely as not (fifty percent or greater) that the Veteran's Hepatitis C had onset in service or was caused or aggravated by the Veteran's active military service. The Veteran's claim folder and a copy of this REMAND should be furnished to the examiner, who should indicate in the examination report that he or she has reviewed the claims file. All findings should be described in detail and all necessary diagnostic testing performed. 2. When the development requested has been completed, and the RO has ensured compliance with the requested action, this case should again be reviewed by the RO on the basis of the additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs