Citation Nr: 1325707 Decision Date: 08/14/13 Archive Date: 08/16/13 DOCKET NO. 09-15 166A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE 1. Whether new and material evidence has been presented to reopen the Veteran's claim for service-connection for hepatitis C. 2. Entitlement to service-connection for hepatitis C. ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active military service from April 1973 to April 1975. This appeal comes to the Board of Veterans' Appeals (Board) from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In November 2010, after the Veteran submitted his substantive appeal but before the claim was certified to the Board, the Veteran passed away. Under the provisions of 38 U.S.C.A. § 5121A, when a claim dies while a claim for benefits is pending a living person eligible to receive accrued benefits under VA regulations may, not later than one year after the death of such a claimant, file a request to be substituted as the claimant for purposes of processing the claim to completion. In July 2011 the RO found the Veteran's wife was to be recognized as the substitute claimant in this appeal. The Appellant was scheduled for a hearing before the Board in May 2013, however the Appellant failed to report to her scheduled hearing. VA regulations provide that if the claimant fails to appear for a scheduled hearing then the case with proceed as though the request for hearing had been withdrawn. 38 C.F.R. § 20.705. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to ensure a total review of the evidence. FINDINGS OF FACT 1. The RO denied the Veteran's claim of entitlement to service connection for hepatitis C in a February 2003 rating decision. The Veteran was notified of the decision, but did not file new evidence or a notice of disagreement within one year. 2. Evidence obtained since the time of the February 2003 rating decision raises a reasonable possibility of substantiating the claim of entitlement to service connection for the Veteran's hepatitis C. 3. The weight of evidence fails to establish that the Veteran's diagnosed hepatitis C either began during, or was otherwise caused by, his military service. CONCLUSIONS OF LAW 1. The February 2003 rating decision, which denied entitlement to service connection for hepatitis C, is final; new and material evidence has been submitted, and the Veteran's claim is reopened. 38 U.S.C.A. §§ 5108, 7105(c) (West 2002); 38 C.F.R. §§ 3.104(a), 3.156, 20.302, 20.1103 (2002). 2. The criteria for service connection for 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 New and Material Evidence The Veteran was seeking service connection for hepatitis C. The Veteran filed his initial claim for hepatitis C in October 2002. His claim was denied in a February 2003 rating decision. The Veteran did not file new evidence or a notice of disagreement within one year, so the determination became final. 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.104(a), 3.156(b), 20.302, 20.1103. However, previously denied claims may be reopened by the submission of new and material evidence. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. New evidence is defined as 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 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 preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claim on its merits. Barnett v. Brown, 8 Vet. App. 1, 4 (1995), aff'd, Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996). At the time of the February 2003 rating decision the evidence of record included the Veteran's application for benefits, service treatment records, and VA treatment records. His claim was denied for failure to establish that his current hepatitis C incurred in or was otherwise caused by his military service. In July 2008 the Veteran sought to reopen his previously denied claim for service connection for hepatitis C. Considerable additional evidence has been presented in conjunction with the claim to reopen. Because the Board concludes that this new evidence is sufficient to reopen the Veteran's claim, only a limited amount of the new evidence will be discussed in this portion of the decision. Most notably, in conjunction with his claim to reopen the Veteran submitted a letter from a VA physician dated November 2008. This evidence was not previously submitted to the VA before the RO's February 2003 decision and is therefore "new." The Board will now turn to a discussion of whether this new evidence is "material". The Board is aware that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Pursuant to Shade, evidence is considered new if it has not been previously submitted to agency decision makers, and it is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. Moreover, the Court of Appeals for Veterans Claims (Court) explained this standard is intended to be a low threshold. Id. In the newly submitted letter the Veteran's VA physician opined the Veteran's hepatitis C was "at least as likely as not to be related to his military service." As such, this record suggests the Veteran's current hepatitis C may be related to his military service. This evidence is particularly relevant to the issue of reopening as evidence is presumed to be credible for the limited purpose of determining whether to reopen a claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). When presumed credible, this evidence suggests the Veteran's hepatitis C may be related to his active duty service. The new evidence is therefore material in that it addresses a requirement of service connection, as well as the reason the Veteran's claim was previously denied, namely that his current condition was not related to his military service. As such, the Veteran's claim is reopened. The Board acknowledges that when the Board reopens a claim, the new and material evidence must first be considered by the RO unless there is a waiver from the Veteran or no prejudice would result from adjudication of this claim. Hickson v. Shinseki, 23 Vet. App. 394 (2010). In this case, the Board finds the RO has already considered the case on its merits in the October 2010 supplemental statement of the case. Therefore, the Board is satisfied that no prejudice will result to the Appellant by the adjudication of this claim. Service Connection In seeking VA disability compensation, a claimant generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Appellant is currently seeking service connection for the Veteran's hepatitis C. Post-service treatment records reflect the Veteran was diagnosed with hepatitis C which onset in approximately 1997, or over twenty years after the Veteran's military service. As such, the Board acknowledges that the Veteran was diagnosed with hepatitis C throughout the period on appeal. However, as will be discussed, the Board finds the evidence does not establish the Veteran's diagnosed hepatitis C was due to his military service. Throughout the period on appeal the Veteran consistently related his hepatitis C to his military service. In his July 2008 claim the Veteran asserted that he was exposed to hepatitis C by shots received upon his entrance to military service. In an August 2008 written statement the Veteran explained most vaccine shots were delivered through the use of air guns which were not sterilized. The Veteran alleged he contracted the disease through the use of air guns or during a dental procedure performed in service. He alleged this disease remained dormant until he became ill with influenza and then hepatitis C reduced his platelet count. In his May 2009 written substantive appeal the Veteran also asserted he did not have any other risk factors for hepatitis C. He explained he did not have a tattoo, use intravenous drugs, or have multiple sexual partners. The Board notes that as a lay person the Veteran is competent to report what comes to him through his senses, such as fatigue and pain associated with hepatitis C. See Layno v. Brown, 6 Vet. App. 465 (1994). However, the Veteran lacks the medical training and expertise required to provide a complex medical opinion as to the etiology of his hepatitis C. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The Board acknowledges that the Veteran has submitted extensive internet research regarding rates of hepatitis C in military service and possible exposure through use of needleless injectors. The United States Court of Appeals for Veterans Claims (Court) has held that a general medical article or treatise such as this "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion. See Mattern v. West, 12 Vet. App. 222, 228 (1999); Sacks v. West, 11 Vet. App. 314 (1998); and Wallin v. West, 11 Vet. App. 509 (1998). However, in the present case the articles submitted by the Veteran were not accompanied by the opinion of any medical expert relating the general information to the Veteran's specific claim. Although service treatment records do reflect the Veteran received immunizations and underwent a dental procedure during his military service, the record does not contain evidence that contaminated needles or air guns were used. The Veteran's own testimony only alleges such contamination may have been possible, but does not allege he observed the use of any dirty or contaminated needle or air gun during service. As such, the Board concludes that this information is insufficient to establish the required medical nexus opinion in this case. Post-service VA treatment records were also reviewed. These records reflect the Veteran was diagnosed with hepatitis C in approximately 1998, more than twenty years after his separation from military service. In February 2000 he was provided with an infectious disease outpatient consult at his VA facility. The Veteran stated he was unaware of how he acquired the infection. He denied history of intravenous drug use, tattoos, or blood transfusion. However, the Veteran noted he worked in health care and was responsible for transporting regulated medical wastes and incinerator operations from 1984 until 1998. He denied any history of known needle stick during this time. The medical provider noted another possible risk factor was multiple sex partners. In March 2000 the Veteran returned to the VA facility. At this time he attributed his infection with hepatitis C to processing of medical wastes at his place of employment for multiple years, providing evidence against the Appellant's claim of high probative value because it was made well before he files any claim with the VA. Medical records after this date consistently noted the Veteran's hepatitis C condition. However, these records did not provide an opinion as to the cause of the Veteran's hepatitis C and do not otherwise relate his condition to his military service. As discussed above in November 2008 a VA physician, Dr. K.C., submitted a letter opining the Veteran's hepatitis C was at least as likely as not related to his military service because the Veteran did not have any risk factors for hepatitis C. However, the Board notes Dr. K.C. failed to indicate what, if any, review of the Veteran's file she completed before providing her opinion. Although Dr. K.C. was a physician in the VA hematology and oncology section, the treatment records do not reflect she routinely treated the Veteran around the time she composed the letter. The physician note from the date of the letter indicates Dr. K.C. read the Veteran's 'chart,' but does not clarify the extent of medical history included in his chart. Additionally no knowledge of the Veteran's prior medical history or his post-service employment disposing of medical waste was reflected in the brief letter, or the Veteran's own prior beliefs that his disability was the result of processing of medical wastes at his place of employment for multiple years. The Court has previously upheld VA determinations that medical opinion were less probative when they physician did not have access to, or did not discuss, the Veteran's prior medical history. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). As such, the Board finds this medical opinion, which does not provide any context of the physician's understanding of the Veteran's prior history, is less probative. In August 2012, after the Veteran's unfortunate passing, a VA examiner reviewed the Veteran's claims file and provided a nexus opinion regarding his claim for service-connection for hepatitis C. The examiner took note of the Veteran's relevant medical history, including dental work and immunizations during military service, as well as Dr K.C.'s November 2008 letter. The examiner then opined the Veteran's hepatitis C was less likely than not incurred or caused by any in-service risk factor event. The examiner noted the first lab showing positivity for hepatitis C as well as an enlarged liver was in 1997. The examiner also highlighted the Veteran's post-service employment disposing of medical waste from 1984 until 1998. Based on his history the examiner opined it was more likely than not that the Veteran was infected with hepatitis C during his post-service employment. The Board finds the examiner's report reflects the examiner was familiar with the Veteran's history and provided a clear opinion and supporting rationale. As such, the Board finds the examiner's report provides highly probative evidence against the Appellant's claim. Based on the foregoing the Board finds the probative evidence does not establish the Veteran's hepatitis C either began during, or was otherwise due to his military service. The record does not include evidence that the Veteran was exposed to any contaminated needles or air gun injectors during his military service. Medical records do not reflect the Veteran was diagnosed with hepatitis C until approximately twenty years after his military service. While the record does contain one letter from a VA physician suggesting the Veteran's hepatitis C was due to his military service, as discussed above this letter appears to be based on inaccurate or incomplete knowledge of the Veteran's history. The probative report from the VA examiner clearly opined the Veteran's hepatitis C was less likely than not due to his military service, and instead more likely than not due to exposure at his post-service employment. The Board has carefully reviewed and considered all evidence and determined the probative evidence does not establish the Veteran's hepatitis C was due to his military service, with the most recent medical opinion clearly having the most probative value as it had the opportunity to review the full scope of evidence in this case, including all of the Veteran's statements, over time. Therefore, the Appellant's claim for service connection is denied. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to veterans. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a veteran of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). Additionally, in Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that the VCAA notice requirements in regard to new and material evidence claims require VA to send a specific notice letter to the veteran that: (1) notifies him or her of the evidence and information necessary to reopen the claim (i.e., describes what is meant by new and material evidence); (2) identifies what specific evidence is required to substantiate the element or elements needed for service connection that were found insufficient in the prior denial on the merits; and (3) provides general VCAA notice for the underlying service connection claim. In the present case, all required notice was provided by a letter dated in August 2008, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. The letter also informed the Veteran how disability ratings and effective dates were established, as well as the requirements for new and material evidence. Finally, this letter also provided the Veteran with notice of the risk factors of hepatitis C infections. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. As to VA's duty to assist, 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). Service and post-service VA treatment records have been obtained, and the Appellant has not indicated the Veteran received any private treatment. As discussed above, the Appellant was scheduled for a hearing before the Board but failed to appear to her scheduled hearing. VA regulations provide that if the Appellant fails to appear for a scheduled hearing then the case with proceed as though the request for hearing had been withdrawn. 38 C.F.R. § 20.704(d). Unfortunately the Veteran was not provided with a VA examiner before his death, but a VA examiner provided a nexus opinion regarding the current claim, the report of which has been associated with the claims file. The Board finds the VA examiner thoroughly reviewed the Veteran's medical and employment history and provided a sound basis upon which to base a decision with regard to the Appellant's claim of high probative value. Furthermore, the Appellant has not voiced any issue with the adequacy of the nexus opinion. As discussed, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Appellant in adjudicating this appeal. ORDER The February 2003 rating decision regarding the claim of service connection for hepatitis C is reopened. The Appellant's claim for service connection for hepatitis C is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs