Citation Nr: 18158909 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 16-63 419 DATE: December 18, 2018 ORDER New and material evidence having been received, the claim for service connection for hepatitis C is reopened. Service connection for hepatitis C is denied. FINDINGS OF FACT 1. In April 2005, the RO denied the Veteran’s claim for service connection for hepatitis C on the basis that this was due to willful misconduct, particularly intravenous drug use; the Veteran did not perfect his appeal of that decision or file any new evidence related to the issue within one year of the April 2005 decision. 2. The evidence received since April 2005 includes evidence that is not cumulative or redundant of the evidence previously of record and relates to unestablished facts necessary to substantiate the hepatitis C claim. 3. The most probative evidence of record demonstrates that the Veteran’s current hepatitis C was not caused or aggravated by a disease or injury in active military service. CONCLUSIONS OF LAW 1. New and material evidence was received to reopen the claim of entitlement to service connection for hepatitis C. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 2. The criteria for service connection for hepatitis C are not met. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence The Veteran was denied service connection for hepatitis C in April 2005. He filed a notice of disagreement the same month and a statement of the case was issued in May 2005; however, the Veteran did not file a substantive appeal. Thus, the April 2005 decision became final. The Veteran later alleged there was clear and unmistakable evidence in the RO’s April 2005 decision. This claim was denied by the RO, appealed and denied by the Board in April 2012. The Veteran later asked for reconsideration of the Board decision in April 2014. A decision on the motion to reconsider was issued in June 2017 and no change was made to the April 2012 decision. Thus, the finality of the April 2005 rating decision has not been disturbed. The RO also construed the April 2014 statement as a claim to reopen. The August 2014 rating decision was then issued declining to reopen the previously denied claim. This matter is now on appeal. Generally, a claim that has been denied in a final RO or Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c) (2012). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition. 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 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). 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). In this case, the basis of the RO’s April 2005 denial was the lack of a causal connection between the Veteran’s hepatitis C and his active service. In particular, the RO found that the Veteran’s hepatitis C was a result of the abuse of drugs and, therefore willful misconduct and not subject to service connection. The record at that time included May 1999 to July 2004 private treatment records showing diagnosis and care for hepatitis C, with a documentation of the Veteran’s report at the time of initial care that he used intravenous drugs in the late 1970s and late 1980s. Also of record was an August 2004 VA examination report and March 2005 VA opinion. The VA examiner found the hepatitis C most likely due to the intravenous drug use and identified that as the highest risk factor for hepatitis C and noting that unsafe sex, working as a medic, and being injected with vaccinations all carried very little risk for hepatitis C. The examiner found, based upon these factors, that the Veteran’s hepatitis C was due to the intravenous drug use. The records received since the April 2005 rating decision include a May 2004 record from a private physician, M.P. and a December 2016 report from another private physician, A.A., both suggesting a causal connection between the Veteran’s hepatitis C and his active service. Thus, the evidence received since the April 2005 rating decision is not cumulative or redundant of the evidence previously of record. Rather, the evidence indicates a potential basis for establishing a relationship between the Veteran’s hepatitis C and his active service. Moreover, the evidence is material in that it was the lack of evidence of a causal connection that was the basis of the prior denial. Accordingly, reopening of the claim for service connection for hepatitis C is warranted. Service Connection Service connection is awarded for disability that is the result of a disease or injury in active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). In this case, service treatment records contain no findings of hepatitis C. The Veteran does not contend that the hepatitis was identified during his active service. Service connection may be established for any disease diagnosed after military service, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during active military service. 38 C.F.R. § 3.303(d) (2017). Following the Veteran’s January 1979 separation from active service, private treatment records first show the diagnosis of hepatitis C in May 1999. At the time of the initial care, the physician recorded the Veteran’s reported medical history. A lack of history of liver disease was noted and the physician indicated, “Of particular note in his past medical history is intravenous drug abuse in the late 1970s and late 1980s, although he at this time abstains completely from illicit drugs and ethanol.” Additional records in the file from this date through 2004 show ongoing periodic treatment for hepatitis C and monitoring of liver function, but no further history being reported. In August 2004, during the pendency of the Veteran’s initial claim for service connection, the Veteran was afforded a VA examination. In this report, the history was noted as a 1988 diagnosis of hepatitis C with treatment beginning in 1999. At this time, the Veteran denied a history of intravenous drug abuse or blood transfusions, but did report a history of unsafe sex while in service and working as a medic in service, which he believed were risk factors for hepatitis C. This examiner confirmed the diagnosis, but did not provide any opinion as to the cause of the hepatitis C. In March 2005, the same examiner provided an addendum report. The examiner confirmed a review of the Veteran’s private records in 2009, as well as the reports from the Veteran at the time of the August 2004 examination. The examiner then explained that intravenous drug use is the number one risk factor for hepatitis C with the next possibility being blood transfusion. Based upon the review of the Veteran’s history as given in 1999, the examiner found the highest risk factor for his hepatitis C to have been his intravenous drug use in the 1970s and 1980s, with the other factors less likely to have caused the hepatitis C. During the current appeal period, a private treating physician, M.P., submitted a statement in May 2014 noting the Veteran’s exposure to blood and body secretions during his work as a medic in service. The doctor also noted the had a roommate in service who was positive for hepatitis C and who also dealt with hepatitis C positive patients. Based upon these two factors, the physician opined that the Veteran contracted hepatitis C while in the armed services. The Board observes that this physician did not provide any basis for the knowledge the Veteran’s roommate was positive for hepatitis C and no rationale for the finding that the Veteran’s hepatitis C was due to probable exposure to blood and body secretions. The physician also did not mention the evidence from 1999 suggesting intravenous drug use in the Veteran’s history. In August 2014, the RO obtained another medical opinion. The physician who wrote this report accurately noted the Veteran’s history as is shown in the record, to include the 1999 report of intravenous drug use followed by more recent contentions by the Veteran that he never used drugs. This physician also noted that contaminated needles used among intravenous drug users is the most common mode of transmission of hepatitis C. “Using a needle to inject recreational drugs, even once several years ago, is a risk factor for hepatitis C.” The physician listed the shared drug needles and blood transfusions prior to 1992, as well as tattoos with needles carrying infected blood as the most common ways to contract hepatitis C. The physician listed less common ways to contract the disease as needle sticks with HCV contaminated blood, which is mostly seen in health care workers. The physician suggested the risk of developing HCV infection after a needle stick is about 1.8 percent. In rare cases, a mother spreads the virus to her child in childbirth and the experts are unclear as to hepatitis C can be contracted through sexual contact. The examiner confirmed that one cannot get hepatitis from living with, being near or touching someone with the disease or from casual contact such as hugging, kissing, sneezing, coughing or sharing food or drink. The examiner concluded that the intravenous drug use was the likely cause of the Veteran’s hepatitis C, noted the inconsistency in the Veteran’s statements related to his drug use history, and noted that the less common cause would be the potential for needle sticks with health care workers. Most recently, in December 2016, a private physician, A.A., submitted a report in support of the Veteran’s claim. The physician noted review of and summarized the pertinent in service and post service records and indicated the 1999 note of post intravenous drug use, as well as the subsequent VA opinions. This physician opined that the Veteran more likely than not contracted hepatitis C during his time in service secondary to his work as a medic and in-service injection with a jet injector. The physician based the positive opinion on a Mayo Clinic study and a 1976 PSA/60 Minutes report, which suggest jet injection guns can cause blood splatter, as well as a Senator’s testimony in 2000 suggesting a high level of occurrence of hepatitis C in veterans. The December 2016 physician discounted the Veteran’s own report in 1999 of intravenous drug use and suggested the report should be called into question because it referenced the use of a certain medication as well as the presence of hypertension, which was then not shown in a 2002 report. It is unclear to the Board why unrelated fluctuations in general health call a 1999 report of intravenous drug use into question. The physician in December 2016 also suggested that the past medical history noted in 1999 was “documented by the physician, and not the [V]eteran.” The report gave no reason for the suggestion that the doctor in 1999 would have misreported the medical history provided by the Veteran in 1999. There is no reason to believe that the Veteran did not report to the physician in May 1999, at the time of his initial evaluation following the discovery of hepatitis C, that he had a history of intravenous drug use in the late 1970s and late 1980s. Thus, the Board finds the December 2016 report to lack probative value due to its dismissal of the Veteran’s 1999 reported history for unclear reasons. In essence, the opinion provided was not based upon the complete factual history, because the physician elected to dismiss a significant portion of that history. In sum, the medical evidence reflects that that the Veteran has more than one risk factor for hepatitis C. With regard to the intravenous drug use, the Veteran now denies any history of it, but he has provided inconsistent statements with regard to intravenous drug use; contradicting himself in treatment statements in 1999, then in 2004. The Board again observes the initial report of a history of intravenous drug use came at the time of the initial treatment for hepatitis C, while the 2004 denial of such drug use came after a claim for VA benefits had been filed. The Board indeed recognizes that the Veteran is competent to describe events that occurred during military service or symptoms he experienced. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). As a lay person, the Veteran is not competent to provide a medical diagnosis of hepatitis C or to determine the etiology of his hepatitis C infection as such matters requires medical testing and expertise. See Jandreau v. Nicholson, 492 F.3d at 1376-77 (noting general competence to testify as to symptoms but not to provide medical diagnosis). Thus, the Board accords significantly greater probative to the medical evidence and opinions of record than to the Veteran’s lay assertions on these points. Further, while the Veteran is competent to identify his activities, the Board finds that his reports related to intravenous drug use are not credible. He has inconsistently provided a history of his hepatitis C risk factors, particularly his history of drug use, in the course of seeking treatment and later when seeking VA compensation. These reported histories contradict each other. Therefore, his statements cannot be considered as credible and persuasive evidence in support of his claim. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (Board can consider bias in lay evidence and conflicting statements of the veteran in weighing credibility); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran’s testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (“The credibility of a witness can be impeached by a showing of interest, bias, inconsistent statements, or, to a certain extent, bad character.”). The Board finds the statements made at the time of the initial treatment for hepatitis C in 1999, prior to any VA claim for benefits, are the most likely accurate report of the Veteran’s history. At the time, he had no motivation other than to receive care for the hepatitis C, while the later denials came at the time he was seeking monetary compensation. Further, the 1999 reports were closer in time with the late 1980s, the most recently noted date of use of these drugs. The Board finds the Veteran’s 1999 initial report of a history of intervenous drug use in the Veteran’s past to be the most likely accurate history. The Veteran’s illegal substance abuse constitutes willful misconduct, and service connection for hepatitis C based on intravenous drug abuse cannot be established. 38 U.S.C. § 105 (2012); 38 C.F.R. § 3.301 (2017). The Board recognizes the Veteran’s history also includes his work as a medic in service and the VA examiners have recognized this work as posting some level of risk. However, the VA examiners in this case weighed the risk of the Veteran’s historical potential of exposure and found the intravenous drug use to be the most likely cause of his hepatitis C. The 2014 VA examiner also found that the jet injection gun and the possibility of a roommate with hepatitis C, as well as unprotected sex were unlikely causes of the Veteran’s hepatitis C. The Board also recognizes the record contains conflicting medical opinions regarding whether the Veteran’s hepatitis C is at least as likely as not related to his active service. As noted above, the May 2014 opinion lacked a rationale and made no mention of the history of intravenous drug use, and the December 2016 private opinion inexplicably dismissed the 1999 report of intravenous drug use and the opinion was expressed as though there was no such drug use. Conversely, the VA examiners’ opinions are probative, because they are based on an accurate medical history and provide a well explained rationale with clear conclusions and supporting data; the private opinions do not. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board, therefore, gives more probative weight to the various VA examiners’ opinions in this case. Accordingly, because the Veteran’s recent reports related to his history of intravenous drug use contradict the initial 1999 report confirming such a history of use, the Board finds his current denial of a history of intravenous drug use to lack credibility. Further, because the competent and most probative medical evidence of record indicates the most likely cause of the Veteran’s hepatitis C to be the intravenous drug use, the claim for service connection for hepatitis C must be denied. MICHAEL KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Adamson, Counsel