Citation Nr: 18122192 Decision Date: 07/27/18 Archive Date: 07/27/18 DOCKET NO. 17-04 115 DATE: July 27, 2018 ORDER New and material evidence having been submitted, the claim of entitlement to service connection for hepatitis C is granted. FINDING OF FACTS 1. In an August 1998 rating decision, the RO denied the claim of entitlement to service connection for hepatitis C on the basis that there was no evidence relating the claimed disorder to his military service. The Veteran was notified of the decision but did not file a notice of disagreement. 2. In a September 2000 rating decision, the RO again denied the Veteran’s claim of entitlement to service connection for hepatitis C on the basis that new and material evidence had not been submitted to reopen the claim. The Veteran was notified of the decision, he filed a notice of disagreement, and perfected this appeal to the Board. 3. In a January 2002 decision, the Board denied the claim of entitlement to service connection for hepatitis C. 4. The evidence received since the January 2002 Board decision is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the claim of entitlement to service connection. 5. Resolving all reasonable doubt in the appellant’s favor, the preponderance of the evidence supports a finding that the Veteran’s hepatitis C is the result of his active service. CONCLUSIONS OF LAW 1. The January 2002 Board decision that denied the claim of entitlement to service connection for hepatitis C is final. 38 U.S.C. § 7104 (West 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 2. New and material evidence has been received in order to reopen the claim of entitlement to service connection for hepatitis C. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156(a) (2017). 3. The criteria for the establishment of service connection for hepatitis C have been met. 38 U.S.C. §§ 1101, 1131, 5107 (West 2012); 38 C.F.R. §§ 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June to September 1973. Unfortunately, the Veteran died in May 2017, during the pendency of this appeal. Since that time, the Veteran’s surviving spouse has been recognized as a proper substitute for the Veteran for this claim that was pending at the time of his death. However, prior to discussing the appeal at hand, the Board would be remiss if it did not recognize the Veteran’s outstanding service. The Veteran was clearly a credit to the Army and to his family, and his service to his country is greatly appreciated. 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for hepatitis C. The Board finds that new and material evidence sufficient to reopen the claim for service connection for hepatitis C has been received. The Veteran was initially denied service connection in an August 1998 rating decision. The rating decision denied the claim on the basis there was no evidence hepatitis C was either directly due to the Veteran’s military service or secondary to his service connected coccygodynia. The Veteran did not file a notice of disagreement to this rating decision and it became final. In a September 2000 rating decision, the RO readjudicated the claim. However, as new and material evidence was not received, the RO continued to deny the claim. The Veteran filed a notice of disagreement with this rating decision and perfected an appeal to the Board. In January 2002, the Board also determined that new and material evidence had not been submitted to reopen this claim. Thereafter, the Veteran did not appeal this decision to the United States Court of Appeals for Veterans Claims. As such, the January 2002 Board decision with respect to this claim is final. 38 U.S.C. § 7104 (West 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). In May 2015, prior to his death, the Veteran filed a petition to reopen this claim. The evidence received since the January 2002 Board denial includes VA treatment records; a July 2015 VA examination; and, a March 2017 private opinion specifically attributing the disorder to his military service. The credibility of this new evidence is presumed and it is also material. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the Board finds that the Veteran has submitted new and material evidence sufficient to warrant reopening his claims for service connection. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. Entitlement to service connection for hepatitis C. The appellant contends that the Veteran is entitled to service connection for hepatitis C as a result of the use of a vaccine gun during service. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Veteran’s service treatment records do not contain any complaints, treatment or diagnoses relating to hepatitis C. In fact, it was not until 1998 that the Veteran was diagnosed with hepatitis C. See April 1998 VA treatment record. In support of his claim, the Veteran submitted a statement from a private physician, Dr. Vega, dated in June 1998. Dr. Vega determined that the Veteran’s hepatitis C was not associated with blood transfusions, the use of illegal drugs, or sexual promiscuity. However, Dr. Vega also did not attribute the Veteran’s hepatitis C to his military service. In connection with his most recent petition to reopen, the Veteran was scheduled for a VA examination in July 2015. The July 2015 VA examiner confirmed a diagnosis of hepatitis C, but failed to provide an etiological opinion. In January 2018, after the Veteran’s death, a private medical opinion from a Board certified physician for internal medicine, Dr. Ali, dated in March 2017 was submitted. Dr. Ali indicated a complete review of the Veteran’s claims file, including his service treatment records, was conducted. Thereafter, she concluded that it was more likely than not that the Veteran’s hepatitis C is due to his in-service exposure to a multi-use injector gun. As rationale for her opinion, Dr. Ali points to the Veteran’s lack of other risk factors commonly associated with hepatitis C, such as intravenous drug use, tattoos, and blood transfusions, as well as testimony presented by VA before Congress concerning the spread of hepatitis C. Dr. Ali also notes that a VA treatment record shows the Veteran’s identified risk factor is the vaccine gun. Finally, Dr. Ali relied on medical literature in reaching her favorable conclusion. As there is no evidence of record to contradict the favorable opinion set forth by this physician, the Board finds that it is probative to the matter at hand. Therefore, resolving reasonable doubt in the Veteran’s favor, entitlement to service connection for hepatitis C is warranted. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Berry, Counsel