Citation Nr: 18127501 Decision Date: 08/17/18 Archive Date: 08/17/18 DOCKET NO. 12-16 067 DATE: August 17, 2018 ORDER The petition to reopen the claim of entitlement to service connection for hepatitis C is denied. The petition to reopen the claim of entitlement to service connection for bipolar disorder is denied. FINDINGS OF FACT 1. In April 2008, the Board denied the claims of entitlement to service connection for hepatitis C and bipolar disorder. 2. The Veteran did not appeal the April 2008 Board decision. 3. Evidence added to the record since the April 2008 Board decision does not relate to an unestablished fact necessary to substantiate the Veteran’s claims of entitlement to service connection for hepatitis C and bipolar disorder. CONCLUSIONS OF LAW 1. The April 2008 Board decision, which denied the claims of entitlement to service connection for hepatitis C and bipolar disorder became final. 38 U.S.C. §7104(b) (2012); 38 C.F.R. § 20.1100 (2017). 2. The additional evidence received since the April 2008 Board decision is not new and material, and the claims of entitlement to service connection for hepatitis C and bipolar disorder are not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1972 to July 1972. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran failed to report to a video conference hearing scheduled in July 2018. New and material To reopen a previously and finally-disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis. 38 U.S.C. § 7104(b). In considering whether to reopen a claim, VA must assume the credibility of the aforementioned evidence which supports the Veteran’s claim as required by Justus v. Principi, 3 Vet. App. 510, 513 (1992) ([i]n determining whether evidence is new and material, “credibility” of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness.). New evidence means existing evidence not previously submitted to agency decision makers. 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). In Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the Court of Appeals for Veterans Claims (Court) held that, when evaluating the materiality of newly submitted evidence, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, but rather should focus on whether the evidence, taken together, could at least trigger the duty to assist. 1. The petition to reopen the claim of entitlement to service connection for hepatitis C is denied. In an April 2008 Board decision, the Board determined that the evidence of record showed that his hepatitis C manifested years after service, and it was not related to service. Accordingly, they concluded that it was not incurred in or aggravated during active service. The Veteran did not appeal this decision. Therefore, the Board decision as to this issue became final upon mailing. See 38 C.F.R. § 20.1100 (2017). At the time of the Board decision, the record consisted of private medical records, VA treatment records, and lay statements from the Veteran, including testimony from the Veteran at his October 2004 hearing. In June 2009, the Veteran submitted another claim of entitlement to service connection for hepatitis C. Since this Board decision, the Veteran has submitted limited lay testimony and additional VA medical records. However, none of this evidence substantiates the element of a nexus between the Veteran’s current hepatitis C diagnosis and his military service. As such, while the Board finds there has been new evidence submitted since the April 2008 Board decision, the evidence is not material. The Board has considered the Veteran’s statements concerning his hepatitis C in his December 2009 and January 2010 correspondence. However, these contentions are similar to those that he provided during his October 2004 Board hearing. The Veteran had stated at his prior Board hearing that he believed he got hepatitis C from the “needles” given to him during service. As such, the statement that he believes he contracted hepatitis C during his service is redundant of evidence on the record, and is not new evidence. Also, his other statements regarding his hepatitis C do not substantiate the needed nexus element for his service connection claim. The additional VA treatment records are new but not material. They document current treatment for hepatitis but do not indicate, in any way, that the disorder is linked to the Veteran's active duty service. This evidence is not material evidence. Thus, the petition to reopen the claim of service connection for hepatitis C is denied. 2. The petition to reopen the claim for entitlement to service connection for bipolar disorder is denied. In an April 2008 Board decision, the Board determined that the evidence of record showed that the Veteran’s bipolar disorder manifested years after service and was not related to active service. As a result, the Board concluded that the Veteran’s bipolar disorder was not incurred in or aggravated by active military service. Therefore, the Board decision as to this issue became final upon mailing. See 38 38 C.F.R. § 20.1100 (2017). At the time of the Board decision, the record consisted of private medical records, VA treatment records, and lay statements from the Veteran and his sister, including testimony from the Veteran at his October 2004 hearing. In June 2009, the Veteran submitted another claim of entitlement to service connection for bipolar disorder. Since the April 2008 Board decision, the Veteran has submitted additional VA medical records concerning his claim for bipolar disorder and general medical literature but neither these records nor the medical literature substantiate that his bipolar disorder is related to service. Thus, while “new,” the evidence is not “material.” The additional VA treatment records are new but not material. They document current treatment for bipolar disorder but do not indicate, in any way, that the disorder is linked to the Veteran’s active duty service. This evidence is not material evidence. The Board has considered the Veteran’s statements in his December 2009 and January 2010 correspondence regarding his bipolar disorder. In his December 2009 correspondence, he states that he was diagnosed with bipolar disorder in the 1980’s; and on his January 2010 statement in support of claim he states that he believed his bipolar condition is from his father. The previous Board decision found that the Veteran’s bipolar disorder had a late onset, as such this evidence is redundant of evidence on the record at the time of the previous Board decision, and is not new evidence. Additionally, providing an etiology based on hereditary supports the Board’s previous finding that his bipolar disorder was not caused by service. A September 2010 medical statement from a private physician links bipolar disorder and posttraumatic stress disorder to the Veteran's father. This evidence is not new and material and cuts against the claim. The Veteran submitted an excerpt from a medical treatise which address bipolar disorder. The discussion is general and does not specifically address the Veteran's case or fact pattern and does not indicate, in any way, that the Veteran's current bipolar disorder is linked to active duty. The evidence is new but not material to the claim. As such, the petition to reopen the claim of entitlement to service connection for bipolar disorder is denied. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Wade, Associate Counsel