Citation Nr: 1315656 Decision Date: 05/13/13 Archive Date: 05/15/13 DOCKET NO. 11-28 016 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland THE ISSUE Whether new and material evidence has been submitted to reopen a claim for service connection for hepatitis C; and if so, whether the criteria for service connection are met. REPRESENTATION Appellant represented by: Maryland Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The Veteran served on active duty from June 1971 to July 1974. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2008 decision of the RO that, in pertinent part, declined to reopen a claim for service connection for hepatitis C on the basis that new and material evidence had not been received. The Veteran timely appealed. In April 2013, the Veteran testified during a hearing before the undersigned in Washington, D.C. Following the hearing, the Veteran submitted additional evidence and waived initial consideration of the evidence by the RO. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. In a May 2006 rating decision, the RO denied service connection for hepatitis C. The Veteran did not appeal within one year of being notified. 2. Evidence associated with the claims file since the May 2006 denial, when considered by itself or in connection with evidence previously assembled, relates to an unestablished fact necessary to substantiate the claim for service connection for hepatitis C; and raises a reasonable possibility of substantiating the claim. 3. Resolving all doubt in the Veteran's favor, hepatitis C had its onset in active service. CONCLUSIONS OF LAW 1. The evidence received since the RO's May 2006 denial is new and material; and the claim for service connection for hepatitis C is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 2. Hepatitis C was incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Notice in a new and material evidence claim (1) must notify a claimant of the evidence and information that is necessary to reopen the claim and (2) must notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying benefit sought by the claimant. The notice also requires, in the context of a claim to reopen, that VA look at the bases for the denial in the prior decision and to respond with 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. Therefore, the question of what constitutes material evidence to reopen a claim for service connection depends on the basis on which the prior claim was denied. Failure to provide this notice is generally prejudicial. Kent v. Nicholson, 20 Vet. App. 1 (2006). A September 2008 letter notified the Veteran that his previous claim for service connection for hepatitis C had been denied, with notice of the denial provided in May 2006. The RO advised the Veteran of the evidence needed to establish each element for service connection. The RO advised the Veteran of the reason for the previous denial and that once a claim had been finally disallowed, new and material evidence was required for reopening, and also told him what constituted new evidence and what constituted material evidence. This letter satisfied the notice requirements of Kent. There is no indication that any additional action is needed to comply with the duty to assist the Veteran. The RO has obtained copies of the service treatment records and outpatient treatment records. The Veteran has not identified, and the record does not otherwise indicate, any existing pertinent evidence that has not been obtained. As will be discussed in greater detail below, there is evidence of current disability, which the Board finds to be adequate to decide the appeal. The Veteran's treating physician identified the Veteran's current disability and opined as to its etiology, and provided a rationale for the opinion expressed. Given these facts, it appears that all available records have been obtained. There is no further assistance that would be reasonably likely to assist the Veteran in substantiating the claim. 38 U.S.C.A. § 5103A(a)(2). II. Petition to Reopen The RO originally denied service connection for hepatitis C in May 2006 on the basis that there was no current diagnosis of active hepatitis C, although the Veteran had screened positive for the hepatitis C antibody; and there was no evidence that this could have occurred in active service. The evidence of record at the time of the last denial of the claim included the Veteran's service treatment records, his personnel records, VA treatment records, a statement from the Veteran's wife, and a statement from the Veteran. Service treatment records do not reflect any findings or complaints of liver disease or hepatitis C. VA treatment records show that the Veteran screened positive for hepatitis C in April 2005. In February 2006, the Veteran stated that he had never done drugs; and that he may have had a blood transfusion when he was shot in Vietnam. He also indicated that he may have contracted hepatitis C through shots that the Army gave, or through needles used in the hospital. Based on this evidence, the RO concluded that there was no current diagnosis of hepatitis C; and no evidence that this could have occurred in active service. The present claim was initiated by the Veteran in August 2008. VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Under 38 C.F.R. § 3.156(a), "new evidence" is existing evidence not previously submitted; "material evidence" is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Furthermore, new and material evidence is "neither cumulative nor redundant" of evidence of record at the time of the last prior final denial, and must "raise a reasonable possibility of substantiating the claim." 38 C.F.R. § 3.156(a). New evidence will be presumed credible solely for the purpose of determining whether the claim has been reopened. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Evidence added to the record includes VA records showing treatment and confirming a diagnosis of active hepatitis C; private treatment records; May 2008 and September 2008 statements by a VA treating physician; September 2008 and January 2012 statements by the Veteran's wife; a November 2010 statement by the Medical Director of the Division of Infectious Diseases at the University of Maryland School of Medicine; internet articles submitted by the Veteran regarding infectious dead bodies, contaminated jet injector guns, and the impact of hepatitis C on Veterans generally; and an April 2013 hearing transcript. The Veteran's VA treating physician indicated that the Veteran did not have any traditional risk factors for hepatitis C, and opined that the most likely cause was receiving multiple injections while in active service. Also, the Medical Director, who happened to be the Veteran's former VA treating physician, opined that it is more likely than not that the Veteran acquired hepatitis C during his active service. In April 2013, the Veteran testified that he possibly had a blood transfusion in active service; and that his sister recalled the Veteran telling her that he was given a couple of pints of blood in the hospital. This evidence is new, in that it was not previously of record. Furthermore, it is material, as it tends to show current manifestations of hepatitis C and a plausible nexus to active service. New evidence that is not cumulative and is related to the previous denial of the claim for service connection consists of the VA treating physician's statement, the Medical Director's statement, and the Veteran's testimony. Given the presumed credibility, the additional evidence is both new and material because it raises a reasonable possibility of substantiating the claim. Hence, the Veteran's claim for service connection for hepatitis C is reopened. 38 U.S.C.A. § 5108. IV. Reopened Claim for Service Connection for Hepatitis C As the Board has determined that new and material evidence has been submitted, it is necessary to consider whether the Veteran would be prejudiced by the Board proceeding to a decision on the merits. In this case, the statement of the case provided the Veteran with the laws and regulations pertaining to consideration of the claim on the merits. The discussion in the statement of the case essentially considered the Veteran's claim on the merits. The medical opinions of record appear adequate, and are predicated on a substantial review of the record and consideration of the Veteran's complaints and symptoms. Additionally the Veteran has provided argument addressing his claim on the merits. Accordingly, the Board finds that the Veteran would not be prejudiced by its review of the merits at this time. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service connection is awarded for disability that is the result of a disease or injury in active service. 38 U.S.C.A. §§ 1110, 1131. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). With respect to the showing of chronic disease, there must be a combination of sufficient manifestations to identify the disease entity and sufficient observation at the time, as distinguished from isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303 (2012). Here, service treatment records show that the Veteran was treated by the 95th Evacuation Hospital in Vietnam in July 1972 for a gunshot wound sustained to his head in a confrontation in the local village. Records reflect left occipital entrance and exit wounds, with no palpable cranial defect. There were neither bony nor metallic fragments, nor bone chip nor fracture. The wound was debrided, irrigated copiously, and closed primarily with nylon. Records reflect units of procaine administered, as well as V Cillin K. His stitches were removed later that same month. The small wound had healed nicely; the larger wound was slightly infected, and iodine was applied and the wound was left open to air. While there is no documentation of any blood transfusion in active service, the Veteran has credibly testified that he spoke with his sister at the time of the incident; and relayed having received a few pints of blood in the treatment of his combat wound. The Board finds that the Veteran is competent to testify on factual matters of which he has first-hand knowledge and which are corroborated by other evidence in the claims file. Washington v. Nicholson, 19 Vet. App. 362 (2005). The Board further finds no reason to doubt the credibility of the statement, which has been consistent throughout the appeal. Moreover, the Veteran underwent a VA consultation for chronic hepatitis C in May 2005. At that time he adamantly denied using intravenous drugs. He also reported one occasion of a sexually transmitted disease (gonorrhea) at age 22; and reported having two sex partners in the past ten years, and that protection was used. The Veteran had received a tattoo in 1986, and he claimed that the needle and inks were sterile. He also reportedly shared razors in his household. His past medical history included polycythemia, and the Veteran denied having units of blood removed. He also reported a gunshot wound to his head in Vietnam; and indicated that there was blood present at the time, and that he was transferred to a hospital. The diagnosis in May 2005 was chronic hepatitis C; and a VA nurse practitioner indicated that the origin of infection was vague, and opined that it may have been handling of the wound in Vietnam. In May 2008, a VA treating physician indicated that the Veteran was undergoing treatment for hepatitis C with cirrhosis and thrombocytopenia. The physician indicated that this was the Veteran's third attempt at therapy, and that the first two were unsuccessful. In September 2008, the VA physician indicated that, after a careful review of the Veteran's medical records, no traditional risk factors were identified. The physician noted that the Veteran described a history of receiving multiple injections while serving in Vietnam; and opined that this was the most likely cause of the Veteran's chronic hepatitis C. In support of the opinion, the physician reasoned that there have been cases described as occurring in this manner. In November 2010, the Medical Director of the Division of Infectious Diseases at the University of Maryland School of Medicine, who was the Veteran's former VA treating physician, noted that the Veteran had denied ever using intravenous drugs, and that he had no other high-risk behaviors that would indicate the source of his infection. The Veteran reported the gunshot wound to the head, and that he was uncertain whether or not he received a blood transfusion as part of the management of his injuries. The Veteran also received vaccinations via the multiple use nozzle injector during his time in active service. The Medical Director opined that, given the lack of other risk factors and the progression of the Veteran's disease to decompensated cirrhosis, and the fact that he underwent medical treatment for a gunshot wound and received vaccinations via a multiple use device in active service, it is more likely than not that the Veteran acquired hepatitis C during his active service. The Medical Director also noted that the Veteran's decompensated cirrhosis suggested a remote infection. When assessing the probative value of a medical opinion, the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). A medical opinion that contains only data and conclusions is not entitled to any weight. "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006), the Federal Circuit Court indicated that, where lay evidence provided is competent and credible, the absence of contemporaneous medical documentation during service or since, such as in treatment records, does not preclude further evaluation as to the etiology of the claimed disorder. The Veteran reported the possibility of a blood transfusion in active service, as well as vaccinations with contaminated jet injector guns; and evidence in the claims file corroborates the in-service gunshot wound to the head, and corroborates that jet injectors are capable of transmitting blood-borne pathogens (internet article submitted in September 2010). The Medical Director in November 2010 also corroborates that it is more likely than not that the Veteran acquired hepatitis C during his active service. The Board finds the Veteran's lay statements concerning the possibility of blood transfusion, as well as vaccinations with contaminated jet injector guns are not only competent, but also are credible as corroborated, to show that he was exposed to risk factors for hepatitis C during active service. His lay statements, therefore, have probative value. See Rucker v. Brown, 10 Vet. App. 67 (1997) and Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). The Board finds the May 2008 treating physician's opinion and the November 2010 Medical Director's opinion to be persuasive in finding that the Veteran's current hepatitis C was more likely than not acquired during active service. No other identified risk factors have been corroborated. In this regard, the Board finds the medical statements of record are factually accurate, fully articulated, and contain sound reasoning. Hence, they are afforded significant probative value. Resolving all doubt in the Veteran's favor, the Board finds that hepatitis C had its onset in active service. See 38 C.F.R. § 3.102 (2012). ORDER The application to reopen the previously denied claim of service connection for hepatitis C is granted. Service connection for hepatitis C is granted. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs