Citation Nr: 18117969 Decision Date: 07/12/18 Archive Date: 07/11/18 DOCKET NO. 15-12 585 DATE: July 12, 2018 ORDER Because new and material evidence has not been received to reopen the claim of service connection for hepatitis C, the appeal is denied.   FINDING OF FACT The evidence received since a June 2009 final Board decision denying service connection for hepatitis C is cumulative and redundant of evidence of record at the time of the prior denial, and when considered with the previous evidence of record, does not relate to an unestablished fact necessary to substantiate the claim, or otherwise raise a reasonable possibility of substantiating the claim. CONCLUSION OF LAW Because evidence received since the final June 2009 Board decision is not new and material, the criteria to reopen the claim of service connection for hepatitis C are not met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1967 to January 1970. This appeal arises from a February 2013 rating decision. In May 2018, the Veteran testified at a Board hearing. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Whether new and material evidence was received to reopen a previously denied claim of service connection for hepatitis C. The Veteran is seeking to reopen the claim of service connection for hepatitis C. In submitted statements and oral testimony, the Veteran contends that he contracted hepatitis C while he was in service from vaccinations that were administered to him using an air gun and treatment he received for gonorrhea. See June 2013 Notice of Disagreement (NOD); May 2018 Board Hr’g testimony. Legal Criteria Board decisions are final when issued. 38 U.S.C. § 7104; 38 C.F.R. §§ 20.1100(a). Exceptions are when the Board Chairman orders reconsideration or after a final decision is reviewed by the United States Court of Appeals for Veterans Claims (Court). 38 C.F.R. § 20.1100(a), (b). In order to reopen a claim which was denied by a final decision, the claimant must present new and material evidence. 38 U.S.C § 5108. New and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence or record to an unestablished fact necessary to substantiate the claim; which is 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 which raises the possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Regulations do not require new and material evidence as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Rather the Board must focus on whether the evidence, taken together with evidence of record, could at least trigger the duty to assist by providing a medical opinion. Id. Analysis The Veteran’s claim of service connection for hepatitis C was previously denied in a June 2009 Board decision. The June 2009 Board decision became final when issued. 38 U.S.C. § 7104; 38 C.F.R. §§ 20.1100(a). There is no indication that the Veteran appealed the decision to the Court or has filed a motion for reconsideration. Thus, the Veteran must submit new and material evidence in order to reopen the claim. The pertinent evidence associated with the claims file at the time of the prior decisions consist of the Veteran’s service records, post-service VA and private treatment records dated through 2004, and VA examinations from September 2002 and January 2009, with an addendum VA opinion dated March 2009. Medical records show that the Veteran was diagnosed with hepatitis C in approximately 2000, approximately 30 years after service. The Veteran is noted to have several high risk activities for hepatitis C in his medical records including high risk sexual activity, intravenous heroin use for a considerable period of time, and a gunshot wound for which he received blood transfusions in 1984. In the June 2009 decision, the Board denied the claim because the evidence did not establish that the Veteran contracted hepatitis C in service. In other words, the Board found that there was a lack of nexus to an event in service, primarily relying on the March 2009 addendum opinion indicating that it is more likely than not related to intravenous heroin use and blood transfusions in 1984. The evidence added to the file since June 2009 consists of further VA medical records dated through 2012, the Veteran’s statements and testimony, and unrelated VA examinations in 2012 pertaining to claims for posttraumatic stress disorder and a bilateral knee disability. The VA treatment records continue to show that the Veteran has hepatitis C. Since the June 2009 Board decision became final, the Veteran has asserted two separate theories of a nexus linking his hepatitis C to in-service events. First, in the March 2013 NOD, the Veteran asserted that he contracted hepatitis C from vaccinations that were administered using an air gun in service. At the May 2018 Board hearing, in addition to reiterating that theory, the Veteran asserted that he contracted hepatitis C from treatment he received for gonorrhea in service. The Veteran’s contention that he contracted hepatitis C in service due to vaccines administered via an air gun raises a new theory of causation that was not explicitly considered at the time of the June 2009 Board decision. A new theory of causation for the same disease or injury that was the subject of a previously denied claim cannot be the basis of a new claim unless there is evidence supporting the new theory of causation constituting new and material evidence. Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008). In the instant case, the Veteran has simply asserted a new etiological link relating his hepatitis C to service without submitting any competent evidence to support his theory. The Veteran has not provided any proof that he received injections from an air gun. Further, even if the Veteran’s statements that he received injections from an air gun are presumed credible, he is not competent to opine that he contracted hepatitis C from an air gun injection and he has not otherwise submitted competent evidence to that matter that would trigger VA’s duty to assist. See Shade, 24 Vet. App. at 117. With regard to the Veteran’s assertion that he contracted hepatitis C from treatment he received from treatment for gonorrhea while in service, the Veteran has not submitted any new and material evidence. The Board previously considered his treatment for his sexually transmitted infections. See September 2002 VA examination. (Continued on the next page)   Accordingly, the evidence since the final June 2009 Board decision is not new and material under 38 C.F.R. § 3.156(a). Even with consideration of the low threshold set forth in Shade, the Veteran has not submitted any new and material evidence that relates to an unestablished fact necessary to substantiate the claim, i.e., competent evidence of nexus. For these reasons, reopen the claim of service connection for hepatitis C is not warranted. RYAN T. KESSSEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Elissa Gray