Citation Nr: 19197068 Decision Date: 12/31/19 Archive Date: 12/31/19 DOCKET NO. 16-12 905 DATE: December 31, 2019 ORDER As the VA Form 9 (substantive appeal) has been deemed to be timely filed as to the January 2014 statement of the case, reinstatement of the underlying appeal is granted. Entitlement to service connection for hepatitis C is granted. FINDINGS OF FACT 1. The record is adequate to rebut the presumption of regularity in the mailing of the January 2014 statement of the case. 2. The evidence is at least evenly balanced as to whether the Veteran’s hepatitis C is related to active military service. CONCLUSIONS OF LAW 1. The criteria for a timely filed VA Form 9 (substantive appeal) as to the January 2014 statement of the case are met. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.202, 20.302. 2. The criteria for service connection for hepatitis C are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1975 to February 1977. This case is before the Board of Veterans’ Appeals (Board) on appeal from a December 2010 Regional Office (RO) rating decision. In that rating decision, the RO denied entitlement to service connection for hepatitis C. In October 2019, the Veteran testified at a video conference hearing at the RO before the undersigned Veterans Law Judge sitting in Washington, DC. A transcript of his testimony is associated with the claims file. 1. Whether the VA Form 9 (substantive appeal) received in March 2014 was timely filed as to the January 2014 statement of the case. The Veteran asserts that his substantive appeal should be accepted as timely because the January 2014 statement of the case was not properly mailed to him. 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 substantive appeal must be filed within 60 days from the date the RO mailed a claimant the statement of the case (or within the remainder of the one-year period from the date of mailing of the rating decision being appealed, whichever period ends). 38 C.F.R. §§ 20.200, 20.300, 20.302. Otherwise, the rating decision becomes final. See 38 C.F.R. § 20.1103. The time to appeal a VA decision does not commence, and the VA decision will not become final, if a veteran is not notified of the decision and his appellate rights. See Ingram v. Nicholson, 21 Vet. App. 232, 241 (2007); Hauck v. Brown, 6 Vet. App. 518, 519 (1994). Moreover, the filing of a timely substantive appeal, as opposed to a notice of disagreement, is not a jurisdictional bar to the Board’s jurisdiction. Therefore, the Board can implicitly or explicitly waive the issue of timeliness about a substantive appeal. Nonetheless, the Board may decline to exercise jurisdiction over an appeal, if a substantive appeal was not timely filed. See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). A “presumption of regularity ‘supports the official acts of public officers and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.’ Ashley v. Derwinski, 2 Vet. App. 62, 64 (1992) (quoting United States v. Chem. Found., Inc., 272 U.S. 1, 1415, 47 S.Ct. 1, 71 L.Ed. 131 (1926)).” Fithian v. Shinseki, 24 Vet. App. 146, 150 (2010); see also Mindenhall v. Brown, 7 Vet. App. 271 (1994) (applying this presumption of regularity to procedures at the RO). Once the presumption attaches to a particular VA action, the claimant attacking the presumption bears the burden of showing by “clear evidence” that regular, proper procedures were not followed. See Parks v. Shinseki, 716 F.3d 581, 584 (Fed. Cir. 2013); Butler v. Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001); see also Hilkert v. West, 12 Vet. App. 145, 151 (1999) (en banc) (holding that an appellant bears burden of demonstrating error on appeal). By way of history, the Veteran filed a request to reopen his service connection claim for hepatitis C. The RO reopened the claim but denied the service connection claim for hepatitis C is a December 2010 rating decision. After the Veteran filed a timely notice of disagreement with the decision in November 2011, a statement of the case was issued on January 2, 2011 The Veteran’s substantive appeal was then received on April 17, 2014, 15 days after the January 2014 statement of the case was prepared (and not within the one-year time to appeal the December 2010 rating decision). The question for the Board is whether the Veteran timely filed his substantive appeal or, if not, whether his substantive appeal should be accepted as timely filed. The claims file shows that the RO prepared the statement of the case on January 2, 2014. The notification letter dated January 2, 2014 that accompanied the statement of the case listed a different mailing address than that which was the current address of record and there is no documentation in the claims file of the Veteran changing his address to the address listed in the January 2014 notification letter. Furthermore, in May 2014, after being notified that the VA Form 9 was not timely, the Veteran’s attorney submitted a copy of email correspondence with RO. The correspondence shows that a VA National IRIS Response Center manger emailed the Veteran’s attorney on January 6, 2014 and informed her that in response to her inquiry for an updated on the Veteran’ appeal in December 2013, the RO sent a statement of the case on January 2, 2014. On January 8, 2014, the attorney responded in an email that she just spoke to the Veteran and he has not received the statement of the case. She noted that the Veteran was living on a small boar in the Marin and included his new mailing address, which was different than the address listed in the January 2014 notification letter. The attorney also noted that she also had not received a copy of the statement of the case and also included her address that should have been on file with the RO. In October 2019, the Veteran and his attorney testimony was consistent with the statements in the May 2014 notice of disagreement. The above email correspondence between the Veteran’s attorney and a VA representative substantiates the Veteran’s assertion that neither he nor his attorney received a copy of the original statement of the case in a timely manner. Use of an incorrect address for a claimant constitutes the “clear evidence” required to rebut the presumption of regularity. See Crain v. Principi, 17 Vet. App. 182, 187 (2003), see also Fluker v. Brown, 5 Vet. App. 296, 298 (1993). The Veteran’s attorney informed VA of the Veteran’s new address in January 2014 and the RO failed to send the statement of the case to the new address of record. See 38 C.F.R. §§ 3.1(q); 3.103(b). The January 2014 statement of the case was not returned to the RO as undeliverable; however, the Court has held that VA “is not entitled to a presumption of receipt based on the mailing not having been returned as undeliverable where the mailing was not correctly addressed to the claimant.” See Boyd v. McDonald, 27 Vet. App. 63, 72 (2014). As the statement of the case was not mailed to the current address of record at that time and an email dated in January 2014 from the Veteran’s attorney indicates that neither the Veteran nor the attorney had received a copy of the statement of the case, the evidence is sufficient to rebut the presumption of regularity. See Crain, 17 Vet. App. at 187 and Chute v. Derwinski, 1 Vet. App. 352, 353 (1991) (evidence may be sufficient to rebut the presumption of regularity where the appellant wrote to his representative indicating that he did not receive the mailing, such as by asking for information about the status of his appeal). Because the presumption of regularity has been rebutted, the Secretary has the burden to show that the Board decision was mailed in the appropriate manner “or that the appellant actually received a copy of the decision.” Sthele v. Principi, 19 Vet. App. 11, 19 (2004); see Fluker v. Brown, 5 Vet. App. 296, 298 (1993). There is no such evidence in this case. In light of the foregoing, the appeal of the timeliness of the substantive appeal is granted and therefore the Board has jurisdiction to decide the underlying claim of service connection. 2. Entitlement to service connection for hepatitis C. The Veteran contends that his current hepatitis C is due to being exposed to other service members’ blood through vaccinations conducted by air gun injection during active military service. Establishing service connection generally requires competent evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. 38 C.F.R. § 3.303; see Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Certain chronic diseases will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. As an initial matter, the Veteran originally filed a service connection claim for hepatitis C in November 2003. In a May 2004 rating decision, the RO denied the service connection claim on the basis that the Veteran’s service treatment records did not show a diagnosis of or treatment for hepatitis C and the suggestion that blood borne diseases may have been spread from jet inoculations have not been accepted by the medical community at that time. The evidence of record at the time of the March 2009 denial consisted of service treatment records, VA treatment records, and lay statements from the Veteran. Although notified of the denial in May 2004 at his then current address, the Veteran did not initiate an appeal with this decision. Moreover, no new and material evidence pertinent to the claim was received within the one-year appeal period. See 38 C.F.R. § 3.156(b). Typically, this fact would render the decision final as to the evidence then of record, and not subject to revision on the same factual basis. See 38 U.S.C. § 7105(b); 38 C.F.R. §§ 3.104, 20.302, 20.1103. Under such circumstances, VA can only reopen and review such claim if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). However, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding the requirement that new and material evidence must first be received. 38 C.F.R. § 3.156 (c). See also Kisor v. Shulkin, 869 F.3d 1360 (Fed. Cir. 2017) (accepting VA’s interpretation of the relevancy requirement of 38 C.F.R. § 3.156(c)). In this case, the Veteran submitted inoculation records from service. This evidence is relevant to the Veteran’s service connection claim for hepatitis C. The inoculation records existed at the time of the May 2004 rating decision, but were not obtained in conjunction with that claim. Pursuant to 38 C.F.R. § 3.156 (c), the receipt of the additional service records requires reconsideration of the claim for service connection, which, effectively, renders the prior denials non-final. Thus, there is no basis for analysis of the claim as a request to reopen under 38 C.F.R. § 3.156(a). Turning to the claim on appeal, the Board concludes that the is at least evenly balanced as whether the Veteran’s current diagnosis of hepatitis C is related to active military service. The evidence shows that the Veteran has a current diagnosis of hepatitis C. Specifically, an October 2009 VA treatment record problems list includes hepatitis C. Furthermore, a December 2009 VA treatment record shows that the Veteran had a diagnosis of hepatitis C. The Veteran’s service treatment records do not show any complaints of or treatment for symptoms of hepatitis C during active service. However, there was no known test to diagnose hepatitis C until late 1980s. As the Veteran separated from service in 1977, it is not likely that he would have received a diagnosis of hepatitis C during service. Therefore, the absence of in-service manifestations or a diagnosis of hepatitis C is not dispositive of the issue. Furthermore, the Veteran’s service treatment records reflect that the Veteran received vaccinations during active military service. Unfortunately, the records do not document the manner in which the Veteran received the vaccinations. However, the Veteran submitted a memo from Quad service Medical Materiel Quality Control at Fort Detrick noting that a product withdrawal was in effect for certain hypodermic injection apparatus due to concern of the potential transmission of blood borne diseases to include at the 84th Medical Wing of Lackland Air Force Base, which is the location where the Veteran was stationed for basic training. Furthermore, the Veteran has consistently asserted that he contracted hepatitis C during service through the use of air-gun inoculations. The Board finds that air-gun inoculations are observable procedures and a layperson may provide competent statements of having received air-gun inoculations. In light of the foregoing, the Board finds that the Veteran’s lay statement to be both credible and competent in establishing the in-service event of receiving vaccination by air gun. With respect to the issue of whether the Veteran’s hepatitis C is related to active military service to include from vaccinations conducted by air gun injection, the claims file contains a positive medical opinion. Specifically, the May 2004 VA examiner determined that the Veteran more likely than not has hepatitis C and it is as likely as not that the hepatitis C is secondary to jet gun inoculations, it would have depended on the proper sterilization techniques that time, and it is as likely as not have occurred in service. The examiner documented that the Veteran denied other risk factors to include blood transfusions, use of IV drugs, tattoos, piercings, and any unusual sexual activities. Although the examiner did not have a copy of the claims file, the examiner noted that he reviewed the Veteran’s electronic VA medical records and the opinion was based on the credible lay statements from the Veteran. Thus, the VA examiner was not relying on inaccurate facts when he provided the favorable opinion and therefore, the Board finds that opinion to be credible. See Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (indicating the Board may not disregard a medical opinion solely on the rationale that the medical opinion was based on a history given by the veteran) and Coburn v. Nicholson, 19 Vet. App. 427 (2006) (reliance on a veteran’s statements renders a medical report not credible only if the Board rejects the statements of the veteran as lacking credibility). It is also persuasive that the claims file does not include any medical opinion to the contrary. In conclusion, the most probative evidence of record is at least evenly balanced regarding whether the Veteran’s current hepatitis C is related to active military service. Thus, resolving any reasonable doubt in favor of the Veteran, entitlement to service connection for hepatitis C is warranted. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Berry, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.