Citation Nr: 18155205 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 16-47 596 DATE: December 4, 2018 ORDER New and material evidence having not been received, the claim for service connection for hepatitis C is not reopened. FINDINGS OF FACT 1. In a final July 2012 decision, the Board of Veterans Appeals (Board) denied the Veteran’s claim for service connection for hepatitis C. 2. The evidence associated with the file subsequent to the July 2012 Board decision does not relate to an unestablished fact necessary to substantiate the claim for service connection for hepatitis C, is cumulative or redundant of the evidence previously of record, and is insufficient to raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The July 2012 Board decision that denied service connection for hepatitis C is final. 38 U.S.C. §§ 7104; 38 C.F.R. § 20.1100. 2. New and material evidence has not been received to reopen a claim of entitlement to service connection for hepatitis C. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from January 1972 to December 1975. The Veteran’s claim for service connection for hepatitis C was previously denied in a July 16, 2012 Board decision. The Veteran initiated an appeal of the Board decision to the Court of Appeals for Veterans Claims (Court), but such appeal was dismissed in November 2012 on the Veteran’s motion; thus, the Board decision became final. In November 2013, the Veteran’s attorney submitted arguments and evidence in support of a claim to reopen. In the August 2014 rating decision currently on appeal, the Regional Office (RO) denied the claim to reopen and continued their previous denial of service connection for hepatitis C. 1. Finality of the July 2012 Board decision Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104, 7105. Similarly, a decision by the Board is final unless the Chairman of the Board orders reconsideration of the decision. See 38 U.S.C. § 7104 (a); 38 C.F.R. § 20.1100 (a). The Board previously denied the Veteran’s claim for service connection for hepatitis C in July 2012. The Veteran timely appealed that decision. However, in November 2012, the appeal was dismissed on the Veteran’s motion. No new evidence was received within one year. Therefore, the July 2012 decision is final. 38 U.S.C. §§ 7104; 38 C.F.R. § 20.1100(a). 2. New and material evidence An exception to the rule of finality is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA will reopen the claim and review it on the merits. See also 38 C.F.R. § 3.156 (a). New evidence is defined as existing evidence not previously submitted to agency decision makers. 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). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). Entitlement to service connection requires: (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current disability. 38 C.F.R. § 3.303 (a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In a final decision, the Board denied the Veteran’s claim for service connection for hepatitis C because the record did not establish in-service incurrence of the virus. The Board found that the April 2010 VA exam was adequate in that the examiner considered all risk factors supported by the claims file, including the in-service sharing of razors and jet gun inoculations. The examiner explained that although transmission of the hepatitis C virus via jet gun was “a biological plausibility” a review of the medical literature indicated that, unlike blood transfusions, tattoos and intravenous drug use, it was not a significant risk factor for hepatitis C infection. The Board also painstakingly considered the Veteran’s contentions that he did not have a blood transfusion in 1991 and that his alcohol use, alleged cocaine use and tattoos were not risk factors for contracting hepatitis C. In finding these contentions uncompelling, the Board reasoned that the Veteran had given conflicting testimony about his risk factors. Service connection for hepatitis C may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Since the July 2012 decision, the Veteran submitted additional evidence in support of his claim for service connection for hepatitis C. The Board notes the Veteran’s November 2013 submission of arguments, private treatment records from November 1991 and online literature from the Centers for Disease Control, The Department of Veterans Affairs and The San Francisco Department of Public Health. The Board explicitly stated that the surgical records from the Veteran’s ankle surgery were not of record at the time of the July 2012 decision. Nevertheless, the Veteran and his private physician, Dr. B. C. relayed the most pertinent information contained in the treatment records, namely, that the Veteran did not have a blood transfusion during his ankle surgery in 1991, to the Board. Such evidence is redundant of evidence considered at the time of the prior final decision and during the April 2010 VA examination. As such, this evidence cannot be considered new. Furthermore, because it was unclear whether the Veteran received a blood transfusion during his ankle surgery, the Board did not rely solely on the occurrence of a blood transfusion in denying the Veteran’s claim. The July 2012 Board decision specifically addressed each contention the Veteran’s attorney made in his November 2013 arguments. The evidence submitted in support of the November 2013 arguments simply reiterates Veteran’s lay statements that his alcohol use, alleged cocaine use and tattoos were not risk factors for contracting hepatitis C. Many of the web articles submitted by the Veteran, including “Hepatitis C: Testing baby boomers saves lives”, “The long and winding road leading to the identification of the hepatitis C virus”, “Hepatitis C FAQs” and “Hepatitis C” address general facts about diagnosis of the virus and the latency of associated symptoms. The Veteran’s private physician, Dr. B. C. addressed this in his June 2012 opinion when he opined that the Veteran’s hepatitis C was incurred in-service because the Veteran was diagnosed with cirrhosis in 2007 and cirrhosis takes 20-40 years to develop. The Board considered this opinion in its July 2012 decision and afforded it limited probative value because the physician relied heavily on the Veteran’s reporting of his post service risk factors. The Veteran submitted two articles relating to alcohol use as a risk factor for hepatitis C titled “Hepatitis C and Alcohol” and “Prevalence of Hepatitis C Virus Infections in Alcoholic Patients: Cohort Study and Systematic Review.” The first article references a study on the effects of alcohol on individuals who have already been diagnosed with hepatitis C and thus is not helpful in addressing causation. The second article is more relevant to this analysis. This article, however, does not definitively state that alcohol use is not a risk factor for contracting hepatitis C. In fact, the researchers in this study found that the prevalence of hepatitis C infection among alcoholics was lower than previously reported but opined that this was likely due to a relatively low number of patients in their sample with alcoholic liver disease and injection drug use. The results of the study indicated that intravenous drug use was a confounding factor for hepatitis C prevalence among alcoholics. These findings mirror the rationale of the previous Board decision. In denying the Veteran’s claim, the Board cited the April 2010 VA examiner’s opinion that alcohol use was not a means of transmission in and of itself, but studies had shown a high prevalence of hepatitis C among alcohol abusers independent of their other risk factors, presumably because it is a marker for other undisclosed or unidentified risk factors. Lastly, the Veteran submitted Transmission of Hepatitis C Virus Infection Through Tattooing and Piercing: A Critical Review. This article purports to show a significant risk of contracting hepatitis C from tattoos and piercings performed in nonsterile settings. The article suggests that there is no definitive evidence for an increased risk of contracting the virus when tattoos are performed under sterile conditions. This article supports the Veteran’s contention that his tattoos were not a risk factor because they were performed in a sterile environment. However, that testimony was already considered by the April 2010 VA examiner. Consequently, in their July 2012 decision the Board conceded that “tattooing was less of a risk factor.” The literature from the CDC, VA and San Francisco Department of Health does not rectify the Veteran’s conflicting testimony regarding his risk factors. Additionally, the literature adds no additional support to the Veteran’s contention that he contracted hepatitis C from shared razors or jet gun inoculations in service. Therefore, it does not raise a reasonable possibility of substantiating the claim. Consequently, this evidence, while new, is not material. Moreover, none of the evidence provided by the Veteran since 2012 when considered in conjunction with the 2010 VA exam and other previous evidence of record triggers the VA’s duty to assist. Thus, it would not aid in substantiating the claim. (Continued on the next page) While Shade v. Shinseki sets a low threshold for meeting the criteria for reopening, that bar has not been met. Shade v. Shinseki, 24 Vet. App. at 110. There has been no new evidence submitted supporting an in-service incurrence. As such, there is no new evidence speaking to an unestablished fact or having a reasonable possibility of substantiating the claim for service connection for hepatitis C. Accordingly, the claim of entitlement to service connection for a hepatitis C is not reopened. 38 C.F.R. § 3.156 (a). GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Sherman Associate Counsel