Citation Nr: 18126459 Decision Date: 08/15/18 Archive Date: 08/14/18 DOCKET NO. 15-27 507 DATE: August 15, 2018 ORDER New and material evidence having been submitted, the finally adjudicated claim of entitlement to service connection for hepatitis C is reopened. Entitlement to service connection for hepatitis C is denied. FINDINGS OF FACT 1. In a final decision dated in February 2003, the RO denied the Veteran’s claim of entitlement to service connection for hepatitis C. 2. Evidence received since this final rating decision is both new and material, and raises a reasonable possibility of substantiating the underlying claim. 3. The evidence of record does not establish that the Veteran’s hepatitis C had its onset during service; is causally or etiologically related to any disease, injury, or incident in service; nor did it manifest within one year of his discharge. CONCLUSIONS OF LAW 1. As new and material evidence has been received, the criteria have been met for reopening the claim of entitlement to service connection for hepatitis C. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.104, 3.156. 2. The criteria have not been met for entitlement to service connection for hepatitis C. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. New and Material Evidence Claim. Generally, an unappealed decision by the AOJ is final. See 38 C.F.R. § 20.1103. However, a veteran may request that VA reopen a claim upon the receipt of “new and material” evidence. 38 U.S.C. § 5108. If new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review its former disposition. Id. New evidence is defined as existing evidence that was not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence means existing evidence that, by itself or when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be cumulative or redundant of the evidence of record at the time of the prior final denial, and it must raise a reasonable possibility of substantiating the claim. Id. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but also whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). For the purposes of reopening a claim, the evidence is presumed credible unless it is inherently false, or if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992). In a February 2003 rating decision, the AOJ continued to deny the Veteran’s claim of entitlement to service connection for hepatitis C. Irrespective of any decision by the AOJ to reopen a claim, the Board must first make the threshold determination of whether there is the required new and material evidence since the last final and binding denial of the claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). In a rating decision issued in February 2003, the AOJ denied the Veteran’s claim of entitlement to service connection for hepatitis C. Ultimately, review of this rating decision indicates that the AOJ primarily denied the Veteran’s claim based on the lack of a relationship (“nexus”) between his claimed condition and service, to include as secondary to a service-connected disability. The Veteran was notified of this denial and of his appellate rights, but did not appeal this rating decision, or submit new and material evidence within one year of the denial; thus, this rating decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. Among the relevant evidence added to the record since the last final denial are the Veteran’s written contentions and several VA examination reports and medical opinions, which all address the nature and etiology of the Veteran’s currently diagnosed hepatitis C. Here, the Board finds that this evidence is new, as it was not previously associated with the record at the time of the prior final denial. Moreover, this evidence is also material, as it raises a reasonable possibility of substantiating the Veteran’s claim. Accordingly, the Board finds that new and material evidence has been submitted to reopen the Veteran’s claim of entitlement to service connection for hepatitis C. To this extent, his claim is granted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. Entitlement to service connection for hepatitis C. Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, to successfully establish service connection, there must be competent and credible evidence showing (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus or link between the current disability and the disease or injury incurred in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain “chronic diseases” may be presumed to have been incurred in service if they manifest to a degree of 10 percent or more within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). This presumption is rebuttable by probative evidence to the contrary. Id. When such a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). To be “shown in service,” the disease identity must be established and the diagnosis must not be subject to legitimate question. Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38 C.F.R. § 3.303(b). There is no “nexus” requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. Walker, 708 F.3d at 1336. In determining whether service connection is warranted, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant); see also Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The appellant, who has been properly substituted in place of the deceased Veteran, is claiming entitlement to service connection for hepatitis C, which is being argued as being attributable to the Veteran’s active military service in Vietnam, including as secondary to a service-connected disability. Specifically, the Veteran asserts that he either contracted hepatitis C during service or, more likely, when he underwent multiple blood transfusions after service. See Veteran’s July 2015 Stmt. As will be explained below, the Board finds that the preponderance of the evidence is against this claim; thus, entitlement to service connection must be denied. As a preliminary matter, the Veteran’s post-service treatment records establish that he has a current diagnosis of hepatitis C. See, e.g., Aug. 2011 VA Exam. Rep. (indicating that hepatitis C was first diagnosed in May 2002). Thus, there is probative (i.e. competent and credible), medical evidence of his claimed disability. See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (stating that service connection presupposes a current diagnosis of the condition claimed, to at least confirm the Veteran has it; without this minimum level of proof, there can be no valid claim). However, as already alluded to, there still must be competent and credible evidence also of a relationship between the Veteran’s claimed disability and his military service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993); Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D’Amico v. West,.209 F.3d 122, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546,548 (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). And, unfortunately, it is in this equally critical respect that the evidence is less favorable to the appellant’s claim. Regarding direct incurrence, the Veteran’s STRs contain no complaints, treatment for, or diagnosis of hepatitis C or any other liver condition. Following separation from service, the earliest documented evidence of any complaints or treatment for any such condition nearly 30 years after his separation from active military service. The fact that a chronic condition was not shown for such a prolonged period after his period of active service weighs against a claim that it was related to service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (explaining that the Board may consider “evidence of a prolonged period without medical complaint,” along with other factors in resolving a claim). In support of this claim, the Veteran was afforded a VA compensation examination in August 2011, during which the examiner confirmed his diagnosis of hepatitis C. Here, the examination report indicates that hepatitis C was discovered on routine examination in May 2002. Relevantly, the Veteran reported engaging in high-risk sexual activity during service and undergoing surgery for bleeding ulcers, which involved a blood transfusion. After considering the physical examination findings, and the evidence of record, to include the Veteran’s lay statements, the examiner initially opined that it is less likely than not that the Veteran’s hepatitis C is related to his high risk sexual activity. Pertinently, the examiner indicated that sexual activity has a low risk for transmission of hepatitis C in heterosexual relationships and the Veteran denied engaging in any same sex activity. Moreover, the examiner then opined that it is more likely than not that the blood transfusion in 1980 is the source of the Veteran’s hepatitis C. To this extent, the examiner indicated that 1980 is prior to the available testing for hepatitis C in blood transfusion products. As noted, this blood transfusion was after discharge. Considering the above, the Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for hepatitis C. Here, the Veteran was eventually diagnosed with this condition almost 30 years after his separation from service, and, although this fact, alone, is not reason enough to deny his claim, there also has not been the required attribution of this condition to his service. 38 C.F.R. § 3.303(d). See also Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Mense v. Derwinski, 1 Vet. App. 354 (1991). Ultimately, the Board must consider all the evidence relevant to the claim, including the availability of medical records, the nature and course of the disease or disability, the amount of time that has elapsed since military service, and any other pertinent facts. Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000). Therefore, when appropriate, the Board may consider the absence of evidence when engaging in a fact-finding role. See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness). All said, this condition has not been attributed to his active military service by a competent and credible medical opinion. Again, while the Veteran is competent to report symptoms that he perceives through his own senses, these reports must be weighed against the medical evidence of record. See Layno v. Brown, 6 Vet. App. at 469. To the extent he has attempted to establish the required nexus through his personal lay assertions, he is not competent to offer an opinion on the etiology of his hepatitis C, because, as stated, of its medical complexity. Determining the origins of these types of conditions require specialized training for determinations as to diagnosis and causation and, thus, fall outside the realm of common knowledge of a layperson susceptible to lay opinions on etiology. Accordingly, neither the Veteran nor the appellant is competent to render a nexus opinion or attempt to present lay assertions to establish a nexus between the Veteran’s current diagnosis and his active military service. See Jandreau, supra. Lastly, the Board acknowledges the Veteran’s assertion that his hepatitis C should be service-connected because it was more likely caused by a blood transfusion to treat a condition [i.e. bleeding ulcer] which he asserts was caused by his service-connected acquired psychiatric disorders. However, service connection for these ulcers was denied in April 2002 and January 2012. The Veteran did not submit an appeal in either of these rating decisions. Therefore, as he is not service-connected for these ulcers, secondary service connection for hepatitis C is not warranted. For these reasons and bases, the Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for hepatitis C. Since the preponderance of the evidence is against this claim, there is no doubt to be resolved in the appellant’s favor. In turn, service connection must be denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jonathan Z. Morris, Associate Counsel