Citation Nr: 18149160 Decision Date: 11/09/18 Archive Date: 11/08/18 DOCKET NO. 14-38 898 DATE: November 9, 2018 ORDER New and material evidence has been submitted to reopen the previously denied claim of entitlement to service connection for hepatitis C, the application to reopen is granted. Entitlement to service connection for hearing loss in the right ear is denied. Entitlement to service connection for hearing loss in the left ear is granted. REMANDED Entitlement to service connection for hepatitis C is remanded.   FINDINGS OF FACT 1. In a September 2006 rating decision, the Veteran’s claim for service connection for hepatitis C was denied on the ground that the Veteran’s hepatitis C was not caused by service. 2. The Veteran did not express an intent to appeal the September 2006 rating decision and new and material evidence was not added within one year of that decision. 3. The Veteran has submitted new and material evidence in support of the claim for service connection for hepatitis C since the September 2006 rating decision. 4. The Veteran does not have a current diagnosis of hearing loss in the right ear. 5. The Veteran has current left ear hearing loss disability for VA compensation purposes related to in-service exposure to excessive noise. CONCLUSIONS OF LAW 1. The September 2006 rating decision that denied service connection for hepatitis C is final. 38 U.S.C. § 7105(c), 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been submitted to reopen the previously denied claim of entitlement to service connection for hepatitis C. 38 U.S.C. §§ 5108, 7104(b); 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for hearing loss in the right ear have not been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.397, 3.309, 3.385. 4. The criteria for entitlement to service connection for hearing loss in the left ear have been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.397, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1969 to November 1970. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from July 2012 and June 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The Veteran’s Contentions The Veteran contends that he contracted hepatitis C as a result of sharing needles for intravenous (IV) drug use while serving in Vietnam. The Veteran has also cites exposure to jet air gun inoculation, an in-service tattoo, and sharing toothbrushes and razors as risk factors for hepatitis C. The Veteran also claims entitlement to service connection for hearing loss. New and Material Evidence The Veteran’s claim seeking entitlement to service connection for hepatitis C was originally denied in a September 2006 rating decision. The Veteran did not file a notice of disagreement and took no action to appeal or seek reconsideration. Accordingly, the September 2006 rating decision is considered final. 38 C.F.R. §§ 20.302(b)(1), 20.1103. Generally, if a claim of entitlement to service connection has been previously denied and that decision has become final, the claim can be reopened and reconsidered only if new and material evidence is presented. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. 38 C.F.R. § 3.156(a). Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). 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); Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Generally, the credibility of newly submitted evidence is presumed when determining whether a claim should be reopened. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence for service connection for hepatitis C considered at the time of the September 2006 rating decision included the Veteran’s service treatment records, VA treatment records from May 2004 through September 2006, lay statements from the Veteran and his family and internet pages submitted by the Veteran. Service connection was denied on the ground that the Veteran’s hepatitis C was not related to his service. The evidence received since the September 2006 rating decision includes updated VA treatment records, a statement from the Veteran, and a statement from the Veteran’s treating physician. The evidence is new because it was not previously submitted and it is material because it relates to the unestablished nexus element. Specifically, the Veteran details his IV drug use while in Vietnam and his treating physician opines that the in-service IV drug use caused the Veteran’s hepatitis C. The Veteran has also been service-connected for PTSD, and there is now evidence indicating that his IV drug use might have been a consequence of anxiety during service. Accordingly, the newly submitted evidence raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.303. The requirements of 38 C.F.R. § 3.156(a) have been met and the claim for service connection for hepatitis C is reopened. Service Connection Generally, service connection will be granted if the evidence demonstrates that a current disability resulted from a disease or injury incurred in active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection requires evidence of a current disability, an in-service incurrence, disease or injury and a causal relationship between the current disability and the in-service incurrence, disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Hearing loss Impaired hearing is considered a disability for VA purposes when the auditory thresholds in any of the frequencies of 500, 1000, 2000, 3000 or 4000 Hertz (“relevant frequencies”) is 40 decibels or greater; the threshold for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). An audiogram was performed during the Veteran’s February 1969 enlistment examination which showed pure-tone air conduction thresholds of 10, 10, 5 and 0 decibels in the right ear at 500, 1000, 2000 and 4000 Hertz and 5, 5, 10 and 0 in the left ear at the same frequencies. No threshold was recorded for 3000 Hertz. An audiogram performed in September 1972 reflected pure-tone air conduction thresholds of 5, 5, 15 and 15 decibels in the right ear at 500, 1000, 2000 and 3000 Hertz. The decibel threshold recorded at 4000 Hertz in the right ear is illegible. The thresholds in the left ear were recorded as 25, 25, 15 and 15 at 500, 2000, 3000 and 4000 Hertz. The decibel threshold recorded at 1000 Hertz in the left ear is illegible. The record also contains audiograms conducted in September 2015, December 2015, and March 2016. Those audiograms were conducted in connection with treatment of the Veteran’s persistent middle ear effusions and reflect associated hearing loss. Tubes were placed bilaterally in 2015 and subsequently removed. The Veteran was afforded a VA examination in May 2016, after the removal of the bilateral tubes. Audiological testing showed puretone air conduction thresholds of 10, 10, 20, 20 and 20 decibels in the right ear at the relevant frequencies and 10, 15, 15, 20 and 35 decibels in the left ear at the relevant frequencies. The examiner reported a speech recognition score of 100 percent bilaterally. The examiner noted the history of persistent middle-ear effusion and the Veteran’s claim that his decreased hearing had resolved since the removal of the tubes. The examiner concluded that, based on the high probability of hazardous noise exposure and the Veteran’s recollection of significant noise exposure during service, “it would not be unreasonable to assume the onset of the Veteran’s hearing loss was a result of his military noise exposure.” The most recent audiogram in the record was conducted in March 2017 and shows puretone air conduction thresholds of 15, 10, 20, 15 and 20 decibels in the right ear at the relevant frequencies and 20, 20, 20, 45 and 55 decibels in the left ear at the relevant frequencies. Speech discrimination per the Maryland CNC Test was 100 percent for the right ear and 96 percent for the left ear. With respect to the right ear, the results of the May 2016 VA examination and the March 2017 audiogram do not reveal the existence of a hearing loss disability for VA purposes. 38 C.F.R. § 3.385. In the absence of a current disability, service connection for hearing loss for the right ear must be denied. See Brammer v. Derwinksi, 3 Vet. App. 223, 225 (1992). With respect to the left ear, the results of the March 2017 audiogram do reveal hearing loss for VA disability purposes. 38 C.F.R. § 3.385. Considering this evidence and the previous medical and lay evidence of record, the Board finds that the evidence is at least in relative equipoise as to whether there is left ear hearing loss as defined by the VA. As noted, the May 2016 VA examination concluded that the Veteran was exposed to hazardous noise while in service and provided a positive nexus opinion. The Board finds this opinion entitled to probative weight because the examiner bases the opinion on the evidence in the record and provides a rationale for the conclusion. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Accordingly, service connection for left ear hearing loss is warranted. REASONS FOR REMAND Entitlement to service connection for hepatitis C is remanded. This claim is remanded for a VA examination. The Veteran is able to satisfy the current disability element for service connection based on his 2004 hepatitis C diagnosis. The Veteran’s September 2011 lay statement includes information regarding his use of IV drugs while in Vietnam to deal with the stress. According to the Veteran, four or five other servicemembers shared the same needle for months. The Veteran’s service treatment records (STRs) include references to complaints nervousness in March 1970 and trouble sleeping in August 1970, while in Vietnam. The Veteran stated that he stopped using IV drugs while in Vietnam and denies IV drug use since. The Veteran also cites a tattoo he received in service, jet air gun inoculation and sharing toothbrushes and razors during service as additional risk factors for contracting hepatitis C. The Veteran submitted statements from his parents in support of his claim that he received a tattoo while in service. The Veteran also submitted a statement from his treating physician, who opined that IV drug use with shared needles is the most prevalent risk factor for hepatitis C infection and, based on the Veteran’s reported history, “his IV drug use is the most likely cause of his infection.” The physician also noted that the Veteran “never ha[d] a blood transfusion and had no other risk factors for the infection.” The Board notes that this assessment is based on an incomplete factual premise, because the Veteran has elsewhere identified multiple other risk factors for HCV. Nonetheless, this examiner’s assessment indicates a potential nexus to service. The Veteran has not been provided a VA examination in connection with his hepatitis C claim. Of final note, there is a positive nexus opinion of record with respect to the Veteran’s IV drug use. That risk factor may be considered drug abuse, which could prohibit service connection. 38 C.F.R. § 3.301(d). However, where drugs are used for therapeutic purposes or where use of drugs or addiction thereto, results from a service-connected disability, it will not be considered of misconduct origin. 38 C.F.R. § 3.301(c)(3). Such is the Veteran’s contention here. Accordingly, an examination is needed to consider all risk factors. The examination must also consider the Veteran’s use of IV drugs in the context of the Veteran’s service-connected PTSD, and whether his use of such drugs was self-medication to deal with the stressors he encountered. The matter is REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his hepatitis C. Following review of the claims file and examination of the Veteran, the examiner should provide an opinion regarding whether it is at least as likely as not that the Veteran’s hepatitis C is causally related to his active service. Please explain why or why not, specifically considering and discussing the following: (a.) The examiner should consider all potential hepatitis C risk factors, and explain which one was most likely to have resulted in his hepatitis C. (b.) Whether the Veteran’s IV drug use during service may be considered to have been self-treatment for PTSD-related symptoms. C. BOSELY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Snyder, Associate Counsel