Citation Nr: 1723391 Decision Date: 06/22/17 Archive Date: 06/29/17 DOCKET NO. 12-02 249 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been submitted sufficient to reopen a claim of entitlement to service connection for hepatitis C 2. Entitlement to service connection for hepatitis C. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Alexander Panio, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from May 1966 to May 1969, and is in receipt of a Purple Heart Medal for his service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In this regard, the RO never determined whether additional personnel and treatment records submitted within a year of that decision constituted new and material evidence with respect to the pending March 2007 petition to reopen service connection for hepatitis C. 38 C.F.R. § 3.156(b); Beraud v. McDonald, 766 F.3d 1402, 1406-07 (Fed. Cir. 2014) (holding that a claim remains pending where VA failed to fulfill a statutory duty to determine the character of newly submitted evidence). Thus, the June 2007 rating decision never became final, and is the one on appeal to the Board. Although the RO has reopened the Veteran's claim for service connection, the Board is required to consider the issue of finality before it can consider the claim on its merits, and as such, the issues have been characterized as shown on the title page. See 38 U.S.C.A. §§ 5108, 7104(b); Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). In August 2016, the Board requested an expert medical opinion from the Veterans Health Administration (VHA) regarding the issue under appeal. 38 C.F.R. § 20.901(a). FINDINGS OF FACT 1. The July 2002 rating decision denying service connection for hepatitis C was not appealed and no new and material evidence was received within the appeal period. 2. Evidence received more than one year since the July 2002 rating decision is not duplicative or cumulative of evidence previously received, relates to a relevant unestablished fact, and raises a reasonable possibility of substantiating the Veteran's service connection claim. 3. The Veteran's hepatitis C was not present during service or for many years thereafter and is not otherwise etiologically related to service. CONCLUSIONS OF LAW 1. The Veteran has submitted new and material evidence sufficient to reopen his claim for service connection for hepatitis C. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2016). 2. The criteria for entitlement to service connection for hepatitis C are not met. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection for hepatitis C was initially denied in a July 2002 rating decision. The Veteran did not file a notice of disagreement with that rating decision, and no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of the decision. Thus, the July 2002 rating decision became final based on the evidence then of record. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.156(b), 20.1103; Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). A previously denied claim can be reopened if the claimant submits new and material evidence. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). More than one year since the July 2002decision, new evidence has been received, including pertinent medical opinion. As this evidence was not previously before agency decisionmakers, relates to an unestablished fact necessary to substantiate the Veteran's claim, is neither duplicative nor cumulative of evidence previously received, and bears a reasonable possibility of substantiating the claim, the Board finds it to be new and material sufficient to warrant reopening the Veteran's claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. The Veteran initially claimed that his hepatitis C was due to Agent Orange exposure, but has since asserted that he contracted hepatitis from being frequently exposed to the blood of other soldiers during combat. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated during active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The Veteran's medical records reflect that he has been diagnosed with hepatitis C since 2000. Moreover, while his service treatment records do not contain any complaints, diagnosis or treatment for hepatitis C, his exposure to blood of other soldiers during his combat service is consistent with the circumstances of such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). Thus, the first two elements of service connection are met. Concerning the third element, nexus, the Board notes initially that hepatitis C is not one of the conditions presumptively associated with Agent Orange exposure and that the record does not indicate any causative relationship other than the Veteran's assertions. 38 C.F.R. § 3.309. In this regard, while the Veteran, as a lay person, is competent to report observable symptomatology, he lacks the medical training and expertise necessary to provide a probative opinion on the medically complex issue such as the etiology of hepatitis C. See Layno v. Brown, 6 Vet. App. 465 (1994), Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Therefore, while the Veteran associates his hepatitis C to Agent Orange exposure or blood exposure, he is not considered medically qualified to address such a complex question. Among other possible risk factors discussed in the medical records are a tattoo in 2000 and a history of drug use during the early 1970s. The evidence concerning the extent and form of the Veteran's drug use is conflicting, with intravenous drug use during 1972 having been reported and also denied. (See January 1981 and June 2001 treatment records). VA opinions of record concerning the etiology of the Veteran's hepatitis are also conflicting. A July 2006 treatment record assesses chronic HCV disease "probably acquired in Vietnam from frequent exposure to human blood." A March 2010 treatment record notes at the request of the Veteran that "after review of the Vets's [sic] military documents taking his history and review of his history and review of his current condition it is likely as not his hepatitis C the result of exposure to blood while in combat in Vietnam." Contrastingly, a March 2010 VA examiner indicates that the Veteran's hepatitis is less likely than not the result of combat in Vietnam. Following a physical evaluation and review of the Veteran's file, the examiner explained that while the Veteran did come into contact with human blood during service, his service treatment records and other treatment records are silent for a diagnosis of HCV prior to 2000. The examiner noted a history of intravenous drug use in 1972, treatment for drug and alcohol abuse following service and a tattoo in 2000. The examiner explained that based on Center for Disease Control risk factors (used in assessing who should be tested) it was more likely that the Veteran's hepatitis was related to his 1972 intravenous drug use than to service. In order to resolve the question of nexus, the Board requested a VHA expert opinion as to whether the Veteran's hepatitis was at least as likely as not related to his military service. In February 2017, the Board received an opinion from an infectious disease specialist that, based on a review of the Veteran's file, it was not at least as likely as not that the Veteran's hepatitis C was the result of service. The physician explained that while it was possible that the Veteran may have been exposed to hepatitis C during service, he also had many other significant risk factors subsequent to military service, including a history of alcohol abuse since age 18 and intranasal cocaine use as well as other high risk behavior that more likely accounted for the condition. The Board affords greater probative weight to the March 2010 VA examiner and February 2017 expert opinion that to the statements contained in the June 2006 and March 2010 treatment records. The March 2010 examiner and February 2017 expert opinions are more probative because the writers were fully informed of the pertinent factual premises (i.e., medical history) of the case as a result of a full review of the Veteran's file and an examination of the Veteran in the first case. Thus, the submitted opinions are based upon consideration of the Veteran's prior medical history, whereas it is unclear whether the June 2006 and March 2010 statements are based upon a full review of the Veteran's pertinent history. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The March 2010 and February 2017 opinions cited to other relevant treatment records from the file as well as pertinent literature, whereas the statements made in the treatment records did not identify any other pertinent records or opinions suggestive of a full review of the Veteran's history, and make no mention of the Veteran's other relevant risk factors for hepatitis C. Furthermore, the submitted opinions contained fully articulated and definitive conclusions that were neither equivocal nor speculative and contained the requisite degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Finally and most importantly, the opinions were supported by a reasoned analysis that the Board could consider and weigh against contrary opinions, whereas the treatment record statements were conclusory in nature and did not provide any underlying rationale or assessment of the Veteran's other risk factors. See Nieves-Rodriguez, 22 Vet. App. 295 at 301 ("a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two"); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board also notes that treatment providers are often limited to the patient's self-report to guide diagnosis and treatment; whereas a forensic evaluation focuses on the etiology and/or taxonomy of the presenting problem as much as, if not more than, the pathology and utilizes both objective data and the subjective self-report from the Veteran in an attempt to maximize validity, so as to best communicate the nature and etiology of the disorder Based on the foregoing the Board finds that the March 2010 and February 2017 opinions are the most probative evidence regarding a link between the Veteran's current diagnosis and service and that a showing of nexus has therefore not been demonstrated. See Evans v. West, 12 Vet. App. 22, 30 (1998)(the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so). Given the lack of any diagnosis or treatment during service and the weight of the evidence showing a lack of nexus between the Veteran's current diagnosis and service, the preponderance of the evidence is against a finding that the Veteran's current hepatitis C is related to service. Accordingly, service connection is denied. In reaching this conclusion the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER The petition to reopen the claim for service connection for hepatitis C is granted. Service connection for hepatitis C is denied. ____________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs