Citation Nr: 1428443 Decision Date: 06/24/14 Archive Date: 07/03/14 DOCKET NO. 11-00 426 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Whether new and material evidence was received to reopen a claim for service connection for hepatitis C and if so, whether the claim may be granted. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The Veteran served on active duty from May 1972 to May 1975. This case comes before the Board of Veterans' Appeals (BVA or Board) from an April 2010 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Waco, Texas. In May 2012 the Veteran testified before the undersigned at the RO. A transcript of the hearing is associated with the claims file. FINDINGS OF FACT 1. A January 2006 Board decision denied entitlement to service connection for hepatitis C. 2. Evidence received subsequent to the January 2006 Board decision does, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the Veteran's claim of entitlement to service connection for hepatitis C. 3. A private physician has linked the Veteran's hepatitis C to his active service. CONCLUSIONS OF LAW 1. The January 2006 Board decision that denied entitlement to service connection for hepatitis C is final. 38 U.S.C.A. §§ 5108, 7104 (West 2002). 2. Evidence received since the January 2006 Board decision is new and material, and the Veteran's claim of entitlement to service connection for hepatitis C is reopened. 38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. § 3.156(a) (2013). 3. Service connection for hepatitis C is warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In light of the favorable decision to reopen and grant the Veteran's claim, any deficiency as to VA's duties to notify and assist is rendered moot. A January 2006 Board decision denied service connection for hepatitis C. A claim which is the subject of a prior final decision may be reopened if new and material evidence is presented or secured. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. Material evidence means existing evidence that, by itself or when considered with the 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). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court of Appeals for Veterans Claims (Court) indicated that new and material evidence could be found where the new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. In September 2009 and May 2010 letters a private physician (RG, MD) essentially indicated that the Veteran's hepatitis C was likely related to his military service. The Board finds that Dr. G's opinion pertains to an unestablished fact necessary to substantiate the claim (a link to service) and it, together with the medical records that document hepatitis C disability, raises a reasonable possibility of substantiating the claim. As such, the Board finds that new and material evidence has been received to reopen the claim. The Board will now address the claim on a de novo basis. Applicable Laws Service connection is warranted if it is shown that a veteran has a disability resulting from an injury incurred or a disease contracted in active service, or for aggravation of a preexisting injury or disease in active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may 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 Veteran's service medical records show he was admitted to the hospital in August 1973 for complaints of fatigue, malaise, and brown urine. The discharge diagnosis was hepatitis. Upon separation in March 1975, no defects or diagnoses of the liver were noted. A May 1998 private laboratory record shows that the Veteran tested positive for hepatitis C. In a January 2003 private treatment record, the Veteran's private physician (CM, MD) indicated that the Veteran had a history of hepatitis C. Dr. M could not tell with 100 percent certainty that the Veteran did or did not contract hepatitis C in service. Dr. M indicated that there was reasonable doubt because in the 1970s, there was no test for hepatitis C. The Veteran, stated Dr. M, could "very well have had hepatitis C at that time." As noted, in September 2009 and May 2010 letters, Dr. G essentially indicated that the Veteran's hepatitis C was likely related to his military service. At his May 2012 Board hearing, the Veteran stated that during service he had multiple sexual partners but did not do drugs or have any tattoos. In 1972 at Fort Ord the Veteran was vaccinated with an air gun inoculation. The Veteran asserted that he was exposed to blood during the course of the air gun inoculation, in that over 100 soldiers were in line to get shots and that in some instances you could see blood coming down their arms from being inoculated. As for other exposure to blood during service, the Veteran stated that at motor pool, working on the track vehicles, soldiers would often get cuts, take a rag and hold it there until it's finished, and then put it back, and then someone else would use the same rag. He also had scrapes and cuts in the process of dealing with fights when serving as a unit police officer and a military boxer. The Veteran stated that in the process of boxing blood was transferred back and forth on the gloves; he also had helped other boxers stop the bleeding on their own cuts. The Veteran stated that he had never had any transfusions or tattoos before, during, or after service. After a review of the evidence of record, the Board finds that service connection for hepatitis C should be granted. Considerable attention is given to Dr. G's opinions linking the Veteran's hepatitis C to his military service. As for the probative value of Dr. G's opinions, the Board observes that the opinions contained a review of the Veteran's pertinent medical history and a rationale. Dr. G's position as the director of the liver transport program and director of hepatology and research at a large city medical center has also been taken into consideration. Further, the opinion from Dr. M tends to confirm, at least in part, Dr. G's opinion. While a VA physician in February 2010 provided an unfavorable opinion in this case, at the very least, the evidence is in equipoise as to whether the Veteran's hepatitis C is related to his active service. In sum, the Board finds that the medical nexus opinions in this case are at least in equipoise. In such cases, doubt is resolved in the Veteran's favor, 38 U.S.C.A. § 5107, Gilbert v. Derwinski, 1 Vet. App. 49 (1990), and service connection for hepatitis C is warranted. ORDER Service connection for hepatitis is granted. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs