Citation Nr: 1327997 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 11-11 218 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for hepatitis C and if so whether the reopened claim should be granted. 2. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for Crohn's disease. ATTORNEY FOR THE BOARD Rory Reyhan Layne, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1978 to November 1980. This appeal comes to the Board of Veterans' Appeals (Board) from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. Although the RO ultimately determined that new and material evidence had been submitted to reopen the Veteran's claims, the Board must determine on its own whether new and material evidence has been submitted to reopen the claims. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The record before the Board consists of the Veteran's paper claims file and an electronic record known as Virtual VA. FINDINGS OF FACT 1. Entitlement to service connection for Crohn's disease was denied in an unappealed rating decision issued in October 2006; the subsequently received evidence is cumulative or redundant of the evidence previously of record or does not relate to an unestablished fact necessary to substantiate the claim and is not sufficient to raise a reasonable possibility of substantiating the claim. 2. Entitlement to service connection for hepatitis C was denied in an October 2006 rating decision; the Veteran did not appeal that decision or submit any pertinent evidence within the appeal period. 3. The evidence received after the appeal period includes evidence that is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim. 4. Hepatitis C was not present in service and is not etiologically related to service. CONCLUSIONS OF LAW 1. New and material evidence has not been presented to reopen the claim for service connection for Crohn's disease. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 2. New and material evidence has been presented to reopen the claim for service connection for hepatitis C. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 3. The criteria for establishing service connection for hepatitis C have not been met. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). Additionally, in March 2006, the Court held that because the terms "new" and "material" in a new and material evidence claim have specific, technical meanings that are not commonly known to VA claimants, when providing the notice required by the VCAA, it is necessary, in most cases, for VA to inform claimants seeking to reopen a previously and finally disallowed claim of the unique character of the evidence that must be presented. Kent v. Nicholson, 20 Vet. App. 1, 9-10 (2006). The record reflects that the Veteran was provided all required notice in a letter sent in October 2009, prior to the initial adjudication of the claims to reopen. The Board is also satisfied that VA has complied with its duty to assist the Veteran. In this regard, the Board notes that service treatment records and VA treatment records have been obtained. In addition, the majority of the Veteran's private treatment records have been obtained. Specifically, there is a single physician, Dr. Rao, identified as a treating physician for hepatitis C and Crohn's disease by the Veteran, who did not respond to the RO's initial or follow-up requests for information. The Veteran was advised in March 2010 of Dr. Rao's failure to respond, and, to date, the Veteran has not submitted any records from Dr. Rao. The Veteran was afforded an opportunity for a Board hearing and also provided with an appropriate VA examination to determine the etiology of his hepatitis C. The examination report reflects that in addition to examining the Veteran, the examiner reviewed the Veteran's pertinent history and provided an appropriate opinion supported by adequate rationale. The report is adequate for adjudication purposes. Although the Veteran was not provided a VA examination and no medical opinion was obtained in response to the claim to reopen a claim for service connection for Crohn's disease, VA is not obliged to provide an examination or obtain an opinion in response to a claim to reopen if new and material evidence is not presented. 38 C.F.R. § 3.159(c)(4). Neither the Veteran nor his representative has identified any additional, available evidence that could be obtained to substantiate the claim for service connection for hepatitis C or the claim to reopen the claim for service connection for Crohn's disease. The Board is also unaware of any such evidence. II. Claims to Reopen Legal Criteria 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). An exception to this rule is 38 U.S.C.A. § 5108, which 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. Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Factual Background and Analysis In April 2006, the Veteran filed an original claim for service connection for hepatitis C and Crohn's disease. The RO denied his claim in an unappealed rating decision issued in October 2006. The denial was based on the RO's determination that neither disability was present in service or etiologically related to service. The medical evidence added to the record since the October 2006 rating decision continues to show the presence of Crohn's disease many years following the Veteran's discharge from service. There is no indication in the medical evidence added to the record that Crohn's disease was present in service or that it is etiologically related to service or service-connected disability. The Veteran's statements have also been added to the record since the October 2006 rating decision. His relevant statements primarily relate to why he believes that service connection is warranted for hepatitis C. His statements do not relate to an unestablished fact necessary to substantiate the claim for service connection for Crohn's disease. In fact, none of the evidence added to the record relates to an unestablished fact necessary to substantiate the claim for service connection for Crohn's disease. Therefore, the evidence added to the record is not new and material, and reopening of the claim for service connection for Crohn's disease is not in order. With respect to hepatitis C, no pertinent evidence was received within the appeal period following the October 2006 rating decision; however, an August 2009 statement from a private physician, Dr. James, essentially states that it is biologically plausible that the Veteran's hepatitis C is due to an inoculation by a jet injector in service. This statement is not cumulative or redundant of the evidence previously of record. Moreover, since is suggests that the Veteran's hepatitis C is related to his active service, it relates to an unestablished fact necessary to substantiate the claim. Accordingly, it is new and material, and reopening of the claim is in order. III. Reopened Claim Legal Criteria Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis The Veteran contends that service connection is warranted for hepatitis C because it is due to jet gun injector, used to administer his vaccination shots in service, or from a tattoo he received in service. For the reasons discussed below, the Board has determined that the preponderance of the evidence is against the Veteran's claim. The Veteran has admitted having jaundice in 1969, before entering service. However, he denies a history of hepatitis C prior to service. The Veteran also acknowledges that he was not found to have hepatitis C in service and that he did not seek treatment for it until more than 20 years following his discharge from service. The service treatment records do not show that he was found to have hepatitis C. In addition, the post-service medical evidence initially documents the presence of hepatitis C in 2004. With respect to the etiology of the hepatitis C, the Veteran's service vaccination records show that he was administered the plague, polio, tetanus and diphtheria, typhoid, cholera, smallpox, and yellow fever vaccines. The Veteran's 1978 enlistment report notes that he was circumcised, had a vaccination scar on his left shoulder, a scar on his left knee, and a gunshot wound scar on the left hip. No tattoo or other indentifying body marks were noted. At his November 1980 separation medical examination, the Veteran's skin was re-examined and the indentifying marks listed above were noted. No pertinent abnormalities were identified, and again no tattoo was noted. The post-service evidence shows that in 2004, immediately prior to his initial hepatitis C diagnosis, the Veteran was released from an alcohol detoxification program. In addition, a March 2004 letter, from the private physician who performed the Veteran's liver biopsy, Dr. King, indicates the doctor's belief that the Veteran's hepatitis C antibodies were most likely related to his previous intravenous drug (IVD) abuse. In August 2009, one of the Veteran's private physicians, Dr. James, provided a letter addressing the Veteran's hepatitis C disability. Specifically, Dr. James noted that the Veteran denied IVD abuse, and instead believed he had contracted hepatitis C from a jet gun inoculator. In addition, Dr. James stated that he had been provided, and had reviewed, VA Fast Letter 04-13. In the VA Fast Letter 04-13, June 29, 2004, VA noted that a rating decision had been issued based on a statement which was incorrectly ascribed to a VA physician. The purported statement was to the effect that persons who were inoculated with a jet gun inoculator were at risk of having hepatitis C. The Fast Letter then 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. The Fast Letter concluded 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 also noted that transmission of hepatitis C virus with air gun injections was "biologically plausible," notwithstanding the lack of any scientific evidence so documenting. Dr. James essentially asserted that the conclusion in the Fast Letter supports, ". . . .the events documented in [the Veteran's] medical case." In March 2011, the Veteran was afforded a VA examination. In reviewing the Veteran's claims folder and medical records, the VA examiner noted that: Dr. King's March 2004 letter attributed the Veteran's hepatitis C to previous IVD abuse; there was a history of alcohol abuse; and there was also a history of jaundice before service, which the Veteran reported as mononucleosis. T he examiner also noted that the Veteran denied IVD abuse, and high risk sexual activity. She noted that the Veteran reported his hepatitis risk factors as pre-service body piercing, tattoos received before and during service, and jet gun inoculators. After examining and interviewing the Veteran, reviewing his claims file, service treatment records, and private medical records, the VA examiner concluded that the Veteran's hepatitis C disability was less likely related to the jet gun inoculations received in service. Instead, the examiner opined that the Veteran's hepatitis C was more likely related to risk factors including ear piercing, his tattoos, alcohol abuse, and IVD abuse as noted by Dr. King. The Board also finds that the Veteran is not an accurate historian in regards to his medical history. In weighing credibility, discounting of competent testimony or statements from a lay person may occur in the light of its own inherent characteristics and its relationship to other items of evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). Factors for consideration include a showing of interest, self-interest, bias, inconsistent statements, inconsistency with other evidence of record, facial implausibility, bad character, malingering, desire for monetary gain, and witness demeanor. Pond v. West, 12 Vet. App. 341(1999). The Board cannot determine that lay testimony or a lay statement lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331(Fed. Cir. 2006). However, the lack of contemporaneous medical evidence in combination with other factors may lead to the determination that the lay testimony or statement is not credible. In this case, the Veteran's claim regarding when he received his tattoos lack credibility because it is inconsistent with the evidence of record and is self serving. Specifically, the Veteran asserts that he received his tattoos before and during service. However, his April 1978 enlistment report notes that he was circumcised, had a vaccination scar on his left shoulder, a scar on his left knee, and a gunshot wound on the left hip. No tattoo on the Veteran's skin was noted at that time. Additionally, at his November 1980 separation medical examination, the Veteran's skin was re-examined and the identifying marks listed above were noted. Notably, it was clearly marked on the separation report that the Veteran did not have any tattoos. As such, given the discrepancy between the Veteran's statements and the evidence of record, the Board finds him to be an unreliable historian; and, given that his current statements were made in the context of seeking monetary benefits, they are afforded very little probative weight. With respect to whether the hepatitis C is related to inoculations with a jet injector during service, the Board notes that there is only one competent opinion that somewhat supports such a relationship. Specifically, Dr. James has identified the aforementioned VA Fast Letter as supporting a relationship between the Veteran's hepatitis C and the in-service inoculations with a jet injector. However, Dr. James provided no assessment of the likelihood that the hepatitis C is related to the in-service inoculations and provided no other rationale for linking the hepatitis C to the in-service inoculations. Moreover, the VA Fast Letter referenced by Dr. James notes that there is a lack of scientific evidence to document the transmission of the hepatitis C virus through inoculation with a jet injector and only acknowledges that it is biologically plausible that hepatitis C could be contracted in such a way. Therefore, the Board concludes that the opinion of Dr. James is only minimally supportive of the Veteran's claim. On the other hand, the Board has found the March 2011 opinion from the VA examiner indicating that it is less likely than not that the Veteran's hepatitis C is related to the in-service inoculations is highly probative. The VA examiner provided a full rationale for her conclusion. In addition, the March 2011 VA examination report was expressed in unequivocal language and in language of probability rather than possibility. See Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (indicating that speculative medical opinions are not particularly probative). Specifically, the VA examiner reviewed the Veteran's claims folder and his medical records, and expressly considered all of the Veteran's documented risk factors before, in service, and thereafter, including his reports of receiving inoculations from a jet gun during basic training. The VA examiner also clearly noted that while the letter from Dr. King alleged that the Veteran's disability was due to IVD abuse, the Veteran categorically denied any IVD abuse. After considering all of these risk factors, she nonetheless concluded that it was less likely than not that the Veteran's hepatitis C was related to the in-service inoculations. As such, the Board finds that the VA medical opinion is persuasive and assigns it great probative weight. The Board recognizes that the Veteran might sincerely believe that his hepatitis C is related to the in-service inoculations. However, the Veteran's lay opinion concerning this matter requiring medical expertise is of not probative value. As discussed above, the preponderance of the medical evidence shows that the hepatitis C is unrelated to the in-service inoculations. Accordingly, the Veteran's claim of entitlement to service connection for hepatitis C must be denied. In reaching this decision, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. ORDER The Board having determined that new and material evidence has been received, reopening of the claim for service connection for hepatitis C is granted. Entitlement to service connection for hepatitis C is denied. The Board having determined that new and material evidence has not been received, reopening of the claim for service connection for Crohn's disease is denied. ______________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs