Citation Nr: 18126351 Decision Date: 08/14/18 Archive Date: 08/14/18 DOCKET NO. 14-28 557A DATE: August 14, 2018 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for hepatitis C, and the request to reopen is granted. Entitlement to service connection for hepatitis C is denied. FINDINGS OF FACT 1. The appellant has submitted evidence that was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for hepatitis C. 2. The preponderance of the evidence is against finding that the Veteran has hepatitis C due to a disease or injury in service, to include a specific in-service event, injury, or disease, that is not due to the Veteran’s willful misconduct. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for hepatitis C. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103. 2. The criteria for entitlement to service connection for hepatitis C are not met. 38 U.S.C. §§ 105, 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.301, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1969 to March 1971. This matter comes before the Board on appeal from an October 2012 Regional Office (RO) rating decision. Service Connection Rating actions from which an appeal is not perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. A final decision cannot be reopened unless new and material evidence is presented or secured with respect to that claim. See 38 U.S.C. § 5108; see also Knightly v. Brown, 6 Vet. App. 200 (1994). New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing 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 of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The question of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court has held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Id. A final denial on one theory is a final denial on all theories. Thus, a new theory in support of a claim for a particular benefit is not equivalent to a separate claim. See Ashford v. Brown, 10 Vet. App. 120 (1997). As such, new and material evidence is necessary to reopen a claim for the same benefit asserted under a different theory. See Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008). For the purpose of establishing whether new and material evidence has been submitted, the evidence is presumed credible unless it is inherently false or untrue, or it is beyond the competence of the person making the assertion. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Service connection is warranted where the evidence of record establishes that an injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a veteran must show (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, or nexus, 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). No compensation shall be paid for disability that results from a person’s own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. §§ 105, 1110, 1131; 38 C.F.R. § 3.301. However, service connection may be warranted for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). A claimant may only be compensated for a substance abuse disability where there is clear medical evidence establishing that the alcohol or drug abuse disability is caused by a primary service-connected disability, and where the alcohol or drug abuse disability is not due to willful wrongdoing. Id. New and material evidence has been received to reopen the claim of entitlement to service connection for hepatitis C, and the request to reopen is granted. The claim of entitlement to service connection for hepatitis C was originally denied in a June 2009 rating decision. In that decision, the RO noted, in relevant part, that service treatment records showed no treatment or diagnosis of hepatitis C during service. It also stated that the Veteran was noted to have a behavioral disorder identified as drug abuse during service. A July 1971 service treatment record showed that he was having withdrawal symptoms associated with heroin use. The RO noted that service connection cannot be established for hepatitis C due to possible exposure from illegal drug use, as this constitutes willful misconduct. (The RO also determined that the available scientific and medical evidence does not support the conclusion that the Veteran’s hepatitis C was associated with herbicide exposure. The Veteran has not raised that theory of entitlement in connection with this attempt to reopen his claim, and he has not presented new evidence that pertains to this theory.) The Veteran was notified of this decision in June 2009, but he did not appeal. Therefore, the decision became final, and new and material evidence is required to reopen it. In a December 2011 statement, the Veteran noted that he “was in the hospital in Viet Nam, with blood in my urine,” and stated that he “was inform[ed] later in life by my doctor that this could have cause[d] [this] condition.” The December 2011 statement constitutes lay evidence of etiology, as it is the Veteran’s account of what a doctor has told him based on the Veteran’s own lay description of his in-service symptom. The Court has found that “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds that the December 2011 statement falls under the third scenario that is listed above, as the Veteran’s lay description of his in-service blood in the urine has reportedly led a medical professional to find that this could have caused his hepatitis C. It is new evidence in that it was not of record at the time of the prior final denial. It is material in that it pertains to the nexus element of a service connection claim, as it consists of the Veteran’s testimony concerning what he has been told by a doctor. This element had previously been unestablished at the time of the June 2009 rating decision. Finally, it raises a reasonable possibility of substantiating the claim. Therefore, new and material evidence having been received, the claim of entitlement to service connection for hepatitis C is reopened. Entitlement to service connection for hepatitis C is denied. Although the October 2012 rating decision on appeal did not reopen and adjudicate the claim of service connection for hepatitis C, de novo, the Board finds that the text of the statement of the case issued in June 2014, is sufficient to establish de facto reopening of the claim and consideration of the claim on the merits de novo. Hickson v. Shinseki, 23 Vet. App. 394 (2010). The statement of the case provided the Veteran with notice of the regulation on the principles relating to service connection, and clearly considered and weighed the lay and medical evidence, ultimately concluding that service connection is not warranted. As such, the Veteran is not prejudiced by the Board's adjudication of the reopened claim on the merits, de novo, at this time. The Veteran contends that his hepatitis C is etiologically related to blood in the urine that he was treated for in service. With respect to current disability, it is not in dispute that the Veteran has hepatitis C. (See, e.g., May 2014 private medical record from Dr. F.O.) With respect to in-service disability, the Veteran’s service treatment records reflect that he was never diagnosed with or treated for hepatitis C. They do reflect that he was treated for blood in the urine (paribus hematuria) of unknown etiology in January 1971. However, the Veteran’s service treatment records also reflect that he was found to have abused heroin during service. A July 1971 service treatment record reflects that he was having withdrawal symptoms associated with heroin use. In September 1971, he was put on physical profile for a behavioral disorder, identified as drug abuse. With respect to etiology, an April 2008 private hepatitis C evaluation notes that the Veteran “was found to have Hepatitis C genotype 1a.” With respect to pertinent history, it notes that the Veteran “describes a past history of smoking heroin during Vietnam but denies any IV drug use. He has a past history of heavy ETOH consumption but for the last 6 years only consumed occasional wine cooler.” It notes that the Veteran denied “any blood transfusions or tattoos,” “any sexual activity with person infected with Hepatitis,” and “any [family history] of liver disease, colon cancer, or colon polyps.” A February 2010 private treatment record notes that the Veteran sought treatment for a gastrointestinal bleed. It notes that the Veteran has “a history of hepatitis C untreated and a history of alcohol abuse in the past.” In a December 2011 statement, the Veteran noted that he “had never been involve[d] in drugs until I got in the Army…. The Army did not treat me for drugs before I was discharge[d].” The Veteran has stated that his drug addiction worsened following discharge, which later caused his hepatitis C. Accepting the Veteran’s assertion that he did not use drugs prior to service, that he did not receive adequate drug abuse treatment in service, and that his drug abuse worsened following service, the Board finds that this testimony does not present a valid theory on which service connection may be granted. As noted above, no compensation shall be paid for disability that results from a person’s own willful misconduct or abuse of alcohol or drugs. The Veteran does not contend, and the evidence does not suggest, that his alcohol or drug abuse began as secondary to, or was a symptom of, a service-connected disability. Therefore, service connection based on abuse of drugs or alcohol must be denied. As noted above, the Veteran noted in a December 2011 statement that he “was in the hospital in Viet Nam, with blood in my urine,” and stated that he “was inform[ed] later in life by my doctor that this could have cause[d] [this] condition.” The Board finds that this statement does not constitute probative nexus evidence in favor of the Veteran’s claim. Accepting for purposes of this analysis that the Veteran’s recollection of the doctor’s opinion is accurate, the Board notes that a doctor’s assertion that blood in the urine “could have cause[d] [this] condition” is far too speculative to constitute probative medical nexus evidence. See Bostain v. West, 11 Vet. App. 124, 127- 28, quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinion expressed in terms of ‘may’ also implies ‘may or may not’ and is too speculative to establish medical nexus); Warren v. Brown, 6 Vet. App. 4, 6 (1993) (doctor’s statement framed in terms such as “could have been” is not probative). The Board therefore finds that this opinion does not provide probative medical evidence to support the Veteran’s claim. Furthermore, he wrote in his August 2014 substantive appeal that “[b]ased upon the information that my doctor has told me I feel that my hepatitis C is service-connected.” The Veteran does not suggest that “the information that my doctor has told me” consists of an etiology opinion that links the Veteran’s hepatitis C to service, but not to in-service drug or alcohol abuse. Therefore, the Board must interpret this evidence as if it were the Veteran’s own lay statement. The Board recognizes that there are instances in which a layperson may be competent to offer testimony on medical matters, such as describing symptoms observable to the naked eye or even diagnosing simple conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds, however, that the questions of whether the in-service finding of blood in the urine (1) was not related to in-service drug or alcohol abuse, and (2) was related to hepatitis C, are of such complexity as to require that individuals who provide competent medical evidence on this matter possess a level of expertise that a layperson simply does not possess. In short, the Board finds that a preponderance of the evidence weighs against finding a nexus between the Veteran’s hepatitis C and his military service, to exclude abuse of alcohol or drugs. The Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, the claim is not in equipoise. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the claim must be denied. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Elizabeth Jalley, Counsel