Citation Nr: 1110224	
Decision Date: 03/15/11    Archive Date: 03/30/11

DOCKET NO.  09-27 996	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Whether new and material evidence has been submitted to reopen a claim seeking service connection for hepatitis C.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

A. G. Alderman, Associate Counsel


INTRODUCTION

The Veteran had active service from July 1977 to July 1980 and from October 1981 to June 1987.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.

The Veteran submitted updated VA outpatient treatment records in January 2010 but did not submit a waiver of RO review; however, as the evidence is not pertinent to his claim as it is cumulative of other evidence in the file, a remand for RO review is not necessary.  38 C.F.R. § 20.1304 (2010)


FINDINGS OF FACT

1.  The RO denied the Veteran's claim for entitlement to service connection for hepatitis C in a June 2003 rating decision; the Veteran did not submit a timely appeal.

2.  Evidence received since the June 2003 rating decision is cumulative or redundant of other evidence of record and does not raise a reasonable possibility of substantiating the claim.


CONCLUSIONS OF LAW

1.  The June 2003 rating decision that denied service connection for hepatitis C is final.  38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2010).

2.  New and material evidence has not been received since the June 2003 rating decision that denied entitlement to service connection for hepatitis C, thus the claim not is reopened.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2010).




REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The RO denied service connection for hepatitis C in a June 2003 rating decision.  The appellant was advised of his right to appeal.  He submitted his notice of disagreement but did not submit a timely substantive appeal, or VA Form 9.  The next communication regarding hepatitis C was received in April 2008, more than one year after the June 2003 rating decision.  Therefore, the June 2003 rating decision is final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103 (2010).

A claimant may reopen a finally adjudicated claim by submitting new and material evidence.  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).

Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record.  Evans v. Brown, 9 Vet. App. 273 (1996).

In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the United States Court of Appeals for the 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 claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim.

To establish whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).

At the time of the June 2003 rating decision, the claims file included service treatment records (STRs); copies of hospital records showing his blood transfusion during service; private treatment records from Hillcrest Clinic and The Blood Center; and VA treatment records.  The claims file also included a VA examination and opinion stating that the hepatitis C was the result of the blood transfusion during service, providing evidence against this claim.

In the June 2003 rating decision, the RO found that the appellant contracted hepatitis C as a result of willful misconduct during service and consequently denied his service connection claim.  Specifically, the RO found that hepatitis C was transmitted to the appellant during service via a blood transfusion, which was necessary to treat a condition noted as probably alcohol induced.  The law provides that direct service connection may be granted only when a disability was incurred or aggravated in the line of duty, and not the result of a veteran's own willful misconduct or the result of his or her abuse of alcohol or drugs.  38 C.F.R. § 3.301(a) (2010).  

The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that compensation cannot be awarded pursuant to 38 U.S.C.A. § 1110, 1131 and 38 C.F.R. § 105(a) either for a primary alcohol abuse disability incurred during service or for any secondary disability that resulted from primary alcohol abuse during service.  Allen v. Principi, 237 F.3d 1368, 1376 (Fed. Cir. 2001).  Consequently, the RO denied service connection for hepatitis C since the appellant's alcoholism led to the blood transfusion, which transmitted the virus to the appellant.

The appellant filed his current request to reopen his service connection claim for hepatitis C in April 2008.  The RO notified him that he must submit new and material evidence showing that his condition is related to service to reopen the claim.  In July 2008, the RO refused to reopen the claim because the appellant had submitted no evidence in support of his claim.

After filing his notice of disagreement, the RO obtained updated treatment records, which do not indicate that the hepatitis C is the result of service and not alcoholism.  Even though the claim was not reopened, the RO scheduled a VA examination.  The examiner reviewed the claims file and examined the appellant.  He noted the appellant's history of alcohol and crack cocaine use.  He found that the hepatitis C was more likely the result of the Veteran's alcohol and drug use.

Unfortunately, all of the evidence continues to indicate that the appellant's hepatitis C was transmitted because of his willful misconduct.  Thus, while the evidence submitted may be considered 'new', it is not material as it fails to show that the hepatitis C was the result of non-willful misconduct during or related to service.  38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156(a).  Having found that the evidence is not new and material, the Board concludes that no further adjudication of this claim is warranted.  See Kehoskie v. Derwinski, 2 Vet. App. 31 (1991).

It is important for the Veteran to understand that even if the Board reopened the claim, the new evidence in this case would only provide more evidence against the claim, providing more evidence that would be the basis to deny the claim.

The Duty to Notify and Assist

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).  

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1).  This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction, or regional office (RO).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to provide the claimant with notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  

In Kent v. Nicholson, 20 Vet. App. 1 (2006), the U.S. Court of Appeals for Veterans Claims clarified VA's duty to notify in the context of claims to reopen.  With respect to such claims, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information necessary to establish entitlement to the underlying claim.  To satisfy this requirement, the Secretary is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial.

In this case, the notice letter provided to the appellant in April 2008 included the criteria for reopening a previously denied claim, the criteria for establishing service connection, and information concerning why the claim was previously denied.  Consequently, the Board finds that adequate notice has been provided, as the appellant was informed about what evidence is necessary to substantiate the elements required to establish service connection that were found insufficient in the previous denial.

VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The RO has obtained VA outpatient treatment records.  The appellant submitted copies of STRs and statements.  VA afforded him VA medical examination in April 2009.  Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

ORDER

New and material evidence having not been submitted, the claim seeking service connection for hepatitis C is not reopened.


______________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs