Citation Nr: 1332069 Decision Date: 10/04/13 Archive Date: 10/21/13 DOCKET NO. 10-43 056 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Whether there is new and material evidence to reopen a claim for service connection for a low back disorder. 2. Entitlement to service connection for a right tibia disorder, other than arthritis. 3. Entitlement to service connection for hepatitis C. WITNESSES AT HEARING ON APPEAL Appellant and R.M. ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran served on active duty from November 1972 to February 1974. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. A hearing before the undersigned Veterans Law Judge was held at the RO in June 2011. The hearing transcript has been associated with the claims file. FINDINGS OF FACT 1. A claim of service connection for a low back disorder was denied in a November 2005 rating decision. Evidence presented since the November 2005 decision does not raise a reasonable possibility of substantiating the claim of service connection for the low back disorder. 2. The Veteran does not have a right tibia disorder. 3. Hepatitis C was not incurred in service and is not otherwise causally related to service. CONCLUSIONS OF LAW 1. The November 2005 decision denying the claim of entitlement to service connection for a low back disorder is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012). 2. Evidence submitted to reopen the claim of entitlement to service connection for a low back disorder is not new and material; the claim is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 3. The criteria for service connection of a right tibia disorder have not been met. 38 U.S.C.A § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). 4. The criteria for service connection of hepatitis C have not been met. 38 U.S.C.A § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Claim to Reopen Service connection was denied for a low back disorder in a November 2005 decision. The Veteran perfected an appeal of the matter but withdrew the appeal in January 2009, prior to certification of the matter to the Board. Thus, the November 2005 decision is final based on the evidence then of record. 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. A claim will be reopened if new and material evidence is submitted. 38 U.S.C.A. §5108; 38 C.F.R. § 3.156(a). 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). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The November 2005 decision denied service connection because, although the evidence documented treatment for back pain in service and a current back disorder, the evidence did not suggest that the low back disorder began in service or was related to service. Evidence considered at the time of the previous denial included the Veteran's service medical records, post-service private treatment records, and the results of a VA examination in October 2005. It also included statements from the Veteran reporting that he had back symptoms after service but was unable to obtain treatment due to lack of medical insurance. Evidence associated with the record in conjunction with the claim to reopen includes "new" evidence in the form of statements from the Veteran, records from the Social Security Administration (SSA), and VA and private treatment records, to include a September 2009 radiographic report reflecting a finding of spina bifida. However, this evidence is not material because it fails to cure the defects presented by the previous decisions, namely the lack of probative evidence that a low back disorder is related to service. The new evidence is cumulative of previously considered evidence, which already reflected treatment for the low back and diagnoses associated with the low back and revealed histories from the Veteran attributing the low back disorder to service and reporting low back symptoms since service. Although the Veteran has provided additional details about the nature and date of onset of his low back disability, this information is cumulative of the evidence previously considered. In sum, the evidence submitted since the last final denial does not raise a possibility of substantiating that the low back disorder is related to service, either through date of onset or causation. The Board acknowledges that the threshold for reopening a claim is low, but it is a threshold nonetheless. Shade, 24 Vet. App. at 110. Thus, the evidence submitted to reopen the claim of entitlement to service connection for a low back disorder is not new and material, and therefore, the claim is not reopened. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Right Tibia Disorder In April 2005, the Veteran filed a claim for residuals of a stress fracture of the right tibia. Subsequent statements indicate that he believes that he has a right tibia disorder as a result of a stress fracture during service. Initially, the Board notes that the Veteran was denied service connection for arthritis, to include as a result of the reported stress fracture of the right tibia, in a November 2005 decision which is final. 38 U.S.C.A. §5108; 38 C.F.R. § 3.156(a). It does not appear that the November 2005 decision considered whether there was a disorder other than arthritis affecting the right tibia or resulting from the reported stress fracture, however. As such, the Board finds the November 2005 rating decision is only final with respect to the issue of entitlement to arthritis and will adjudicate the issue of entitlement to service connection for a right tibia disorder other than arthritis on a de novo basis. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008); Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996). See also Clemons v. Shinseki, 23 Vet. App. 1, 8 (2009). The service treatment records do not contain any complaint, finding, or treatment for the right tibia. January and February 1973 treatment record do reflect treatment for a suspected stress fracture but the associated records document that the possible stress fracture involved the left tibia. The February 1974 separation examination reports normal clinical findings and no histories suggestive of a right tibia disorder. An October 2005 VA examination record reflects the Veteran's history of being diagnosed with stress fractures of the right tibia while in boot camp in 1972. The Veteran explained that he was told to rest for one month and then he returned to regular duty. The Veteran denied further stress fracture or treatment for residuals of stress fracture since leaving service. The Veteran additionally denied pain or limitation of the right tibia but reported that his child had observed an altered gait, which the Veteran attributed to the prior stress fracture, and intermittent weakness of the right lower leg. He also reported that he had to wear a shin guard while working because hitting the shin caused pain. After examination and review of the record, the examiner determined that the history of "stress fractures to the lower extremities was not substantiated in [the] presence of persistently normal physical and radiographic examinations in service." The examiner found that the Veteran probably had shin splints in service, which had resolved. The examiner found no residual deficits secondary to the condition. A March 2010 X-ray report indicates that X-ray images of the right tibia and fibula showed no acute findings and no fracture. The June 2011 hearing transcript reports the Veteran's history of being diagnosed with a stress fracture during boot camp. He explained that he was unable to climb the mountains, as ordered, and he was sent to a doctor, where X-ray images showed a stress facture of the right tibia. He clarified that his drill instructor told him that he had a stress fracture. He explained that he was kept on light duty for one month and that when he eventually tried to do exercises, he was unable to perform them. He indicated that the spot of the reported stress fracture was tender to touch and that he guarded it when he walked. He added that he had been diagnosed with arthritis because of the stress fracture; he did not report any other diagnosis pertaining to the right tibia. The Board has carefully reviewed the record but finds no probative evidence of a non-arthritis right tibia disorder. The medical record does not reveal any medical findings or diagnoses of a right tibia disorder, and the Veteran has not alleged that there are outstanding treatment records reflecting such a diagnosis. Furthermore, the record does not include competent evidence suggestive of a right tibia disorder: VA examination in October 2005 VA did not reveal any current disorder, X-ray imaging in March 2010 revealed no abnormality, and the Veteran has not alleged the existence of a disorder other than arthritis, though competent to report the existence of a simple disorder such as shin splints. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The Board acknowledges that the Veteran believes he has a right tibia disorder which is manifested by altered gait and tenderness to palpation. Except in circumstances not applicable, here, service connection will not be granted for symptoms such as tenderness or altered gait; there must be a diagnosed or identifiable underlying malady or condition. Sanchez-Benitez v. West, 13 Vet. App. 283, 285 (1999). Again, the competent evidence does not suggest the existence of such a condition of the right tibia. In reaching this decision, the Board considered the doctrine of reasonable doubt. However, as there is no competent evidence of a current disability, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection. Accordingly, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Hepatitis C Service medical records do not contain any complaint, finding, or treatment for hepatitis C, and the February 1974 separation examination reports normal clinical findings and no histories suggestive of hepatitis C. Per the Veteran, he was first diagnosed with hepatitis C in spring 2005. See October 2005 VA examination record; March 2005 VA treatment records. He has reported "problems with the liver" since the "early 1980s," which he believed was due to alcohol use. See September 2005 statement. Medically recognized risk factors for hepatitis C include: (a) transfusion of blood or blood product before 1992; (b) organ transplant before 1992; (c) hemodialysis; (d) tattoos; (e) body piercing; (f) intravenous (IV) drug use (with the use of shared instruments); (g) high-risk sexual activity; (h) intranasal cocaine use (also with the use of shared instruments); (i) accidental exposure to blood products as a healthcare worker, combat medic, or corpsman by percutaneous (through the skin) exposure or on mucous membrane; and (j) other direct percutaneous exposure to blood, such as by acupuncture with non-sterile needles, or the sharing of toothbrushes or shaving razors. See VBA Training Letter 211A (01-02) (April 17, 2001). A VA Fast Letter (FL) issued in June 2004 (FL 04-13, June 29, 2004) identified "key points" that included the fact that hepatitis C is spread primarily by contact with blood and blood products, with the highest prevalence of hepatitis C infection among those with repeated, direct percutaneous (through the skin) exposure to blood (i.e., intravenous drug users, recipients of blood transfusions before screening of the blood supply began in 1992, and hemophiliacs treated with clotting factor before 1987). Another "key point" was the fact that hepatitis C can potentially be transmitted with the reuse of needles for tattoos, body piercing, and acupuncture. It was concluded in FL 04-13 that the large majority of hepatitis C infections can be accounted for by known modes of transmission, primarily transfusion of blood products before 1992 and injection drug use. It was also noted that transmission of hepatitis C virus with air gun injections was "biologically plausible," despite the lack of any scientific evidence so documenting. The FL noted that it was "essential" that the report upon which the determination of service connection is made includes a full discussion of all modes of transmission, and a rationale as to why the examiner believes the air gun was the source of the hepatitis C. The Veteran contends that he developed hepatitis C as a result of events during his active military service. In particular, the Veteran alleges exposure to the hepatitis C virus via inoculations by a non-sterilized air gun. He has reported that while waiting in line for the inoculation, one recruit in front of him in line announced that he had hepatitis C and that he did not see the health professional clean or change the needles between injections. See July 2009 and May 2011 statements. At his hearing, he testified that the last person on the line to receive injections reported that he had hepatitis C and that the shots were provided to three people in a row before the needle was thrown out. The Veteran has denied blood transfusion, body piercings, tattoos prior to diagnosis, hemodialysis, or multiple sexual partners, and there is no evidence of accidental exposure while working as a health care worker. He has acknowledged exposure to the risk factors of intravenous and intranasal drug use after service. See, e.g., October 2005 VA examination record, July and August 2005 N.K., M.D. treatment records. See also July 2005 R.P., M.D., evaluation report. However, the Veteran has indicated that he was "never a drug addict," never "sent to drug rehab," and "never arrested for cocaine or heroin," and that he only used heroin and cocaine twice and used new needles each time. See March 2009 statement; September 2009 VA examination record; June 2011 hearing transcript. R.M. also testified at the hearing that the Veteran had told him that he only used IV drugs on two occasions and that the Veteran's "only chronic drug use" has been marijuana. See June 2011 hearing transcript. A September 2009 VA examination record reflects a diagnosis of hepatitis C, resolved status-post ribaviron/interferon therapy. The examiner determined it was less likely than not that the hepatitis C was caused by exposure to air gun injections during service. The examiner explained that the Veteran had a recorded history of extensive illicit injectable drug usage, though the Veteran subjectively stated that the practice was minimal during the exam. The examiner added that the most plausible cause of the hepatitis C was through contaminated needle transfer with illicit drugs which the Veteran had told other providers had occurred on numerous occasions. After review of the evidence, the Board finds that service connection is not warranted for hepatitis C. See 38 C.F.R. § 3.102. See also Slater v. Principi, 4 Vet. App. 43 (1993). The evidence documents that the Veteran had possible risk factors during and after service, The evidence does not contain any competent evidence linking the currently diagnosed hepatitis C to the in-service inoculation, though it does contain an opinion, which is based on review of the record and which is supported by rationale, that the hepatitis C is not attributable to reported in-service risk factors but to the post-service drug usage. The Board acknowledges that the Veteran has reported that he overheard a soldier announce that he had Hepatitis C during service and that the air guns were used on multiple soldiers. Initially, the Board finds the Veteran's history of the announcement of Hepatitis C is not credible as Hepatitis C was not recognized as a disease until 1992. Furthermore, to the extent the Veteran's account is credible evidence of another soldier proclaiming that he had a form of hepatitis, the history is not probative as the Veteran has not alleged that the air gun used on that soldier was also used on him. Rather, he has indicated that the air gun was used on three soldiers in a row before it was discarded and that he was not proximal to the affected soldier. The Board finds the Veteran's account of the use of the air gun on multiple soldiers is competent and credible. The record suggests the Veteran is not sure whether the air gun was cleaned between soldieries, however, and the Board finds it noteworthy that Veteran has not alleged that that he saw blood or other fluids on the inoculation site of a soldier before him or on the air gun. Cf. May 2008 Board decision submitted by Veteran (granting service connection for hepatitis based on Veteran's competent history of exposed blood on the air gun). The Board further acknowledges that the Veteran has reported that he only used IV drugs on two occasions after service and that he used a new needle each time. The Board finds the Veteran's current history of limited use of IV drugs, which was made in the context of seeking VA benefits, is not credible as it is contradicted by earlier histories, made in the context of receiving treatment, which indicate a more extensive history of IV drug use. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (a pecuniary interest is recognized as a factor which may affect the credibility of a claimant's statements). The Board acknowledges that the Veteran contends that Dr. N.K. misrecorded his history due to a miscommunication. The histories recorded by Dr. N.K. are consistent with the histories reported in contemporaneous medical documents, however: a March 2005 VA treatment records reflects the Veteran's history of abusing drugs and alcohol "heavily" in his 20s, including shooting up heroin, and a July 2005 state agency record reflects the Veteran's history that he "recognized the etiology [of the Hepatitis C] as IV drug use." The Board acknowledges that R.M. testified that the Veteran's "extensive drug use" was limited to marijuana use and that the Veteran only used IV drugs on two occasions. M.R. testified that his knowledge as to the limited nature of the IV drug use was solely based on the Veteran's history to M.R. rather than firsthand knowledge, however. Thus, the Board finds the testimony is not competent evidence which could corroborate the Veteran's history of limited IV drug use post-service. Furthermore, the Board finds the Veteran's current history of only using clean needles is not credible, and thus not probative, as it is contradicted by Veteran's previous history that he believed his hepatitis C was the result of IV drug use, indicating that the Veteran did not only use new needles which he had purchased himself. Thus, the Board finds the Veteran had a post-service risk factor of IV drug use. Based on the lack of a competent opinion linking the hepatitis C to the in-service risk factor and the lack of credible evidence that the post-service drug use was not a risk factor, the Board finds that it would be speculative to relate the Veteran's hepatitis C to an incident in service rather than to a risk factor encountered outside of service. Consequently, service connection must be denied. Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a claim to reopen a previously and finally denied claim, VA must notify a claimant of the evidence and information that is necessary to reopen the claim and VA must notify the claimant of the evidence and information that is necessary to establish his entitlement to the underlying claim for the benefit sought by the claimant. To satisfy this requirement, VA must look at the bases for the denial in the prior decision and provide a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. Kent v. Nicholson, 20 Vet. App. 1 (2006). The RO provided the appellant pre-adjudication notice by letters dated in March, May, July, and November 2009. VA has obtained service treatment records, VA treatment records, and SSA records; assisted the appellant in obtaining evidence; and afforded the appellant the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the appellant's claims file, and the appellant has not contended otherwise. VA afforded the appellant examinations and obtained a probative medical opinion (i.e. an opinion supported by rationale and consistent with the record) in September 2009 as to the etiology of the hepatitis C. The Board acknowledges that the VA examination provided for the right tibia disorder is dated in October 2005. The record does not suggest that the examination is no longer adequate, however: the Veteran has not reported new or worsened symptoms and the findings reflected in the October 2005 examination report are not contradicted by subsequent medical records, to include the March 2010 X-ray report. As such, the Board finds another examination is not needed. The Board further acknowledges the Veteran's contention that the September 2009 VA examiner relied on an inaccurate premise in rendering the opinion, namely that the Veteran had a history of "extensive" IV drug use. As discussed above, the Board finds this premise was not inaccurate; thus, the Board finds the opinion is probative. VA has substantially complied with the notice and assistance requirements, and the appellant is not prejudiced by a decision on the claims at this time. ORDER New and material evidence has not been presented to reopen a claim for service connection for a low back disorder. The request to reopen is denied. Service connection for a right tibia disorder is denied. Service connection for hepatitis C is denied. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs