Citation Nr: 19140015 Decision Date: 05/23/19 Archive Date: 05/23/19 DOCKET NO. 07-04 620 DATE: May 23, 2019 ORDER Entitlement to service connection for hepatitis C is denied. New and material evidence has not been received to reopen a claim of entitlement to service connection for end-stage renal disease and the appeal is denied. FINDINGS OF FACT 1. A preponderance of the competent and credible evidence of record shows that the Veteran’s hepatitis C is not related to active service. 2. The preponderance of the evidence of record does not support a finding that the proximate cause of the Veteran’s hepatitis C was either (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable. 3. Service connection for end-stage renal disease was denied in an April 2000 Board decision. The Veteran did not perfect an appeal. 4. Evidence associated with the claims file since the April 2000 Board decision is cumulative or redundant of evidence of record at the time of the prior denial, does not relate to unestablished facts necessary to substantiate the claim for service connection for end-stage renal disease, and does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for hepatitis C have not been met. 38 U.S.C. §§ 1110, 1114, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.350, 3.352. 2. The April 2000 Board decision that denied service connection for end-stage renal disease is final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.160(d), 20.1100, 20.1103, 20.1104. 3. As new and material evidence has not been received, the claim for service connection for end-stage renal disease is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from March 1977 to May 1980. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a February 2006 rating decision by the Roanoke, Virginia Regional Office (RO) of the Department of Veterans Affairs (VA). The appeal was remanded for additional development in October 2010, June 2013, and July 2017. In light of the additional notice provided to the Veteran, the treatment records that have been obtained and associated with the record, the obtaining of the requested medical opinions, and the further adjudicatory actions taken by the Agency of Original Jurisdiction, the Board finds that there has been substantial compliance with the prior remand directives. Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141 (1999). The Veteran testified at a personal hearing before one of the undersigned Veterans Law Judges in June 2010 and before another of the undersigned Veterans Law Judges in March 2013. Copies of the transcripts of those hearings are of record. At his March 2013 hearing the Veteran waived his right to have a hearing before the third Veterans law Judge participating in the decision in his appeal. The Veteran has asserted that his available service medical records are incomplete. In particular, the Veteran has stated that while he was serving in Korea in 1979, he was treated for gonorrhea, and the pages documenting that treatment are missing. In response to the Veteran’s concerns, in February 2008, the Agency of Original Jurisdiction (AOJ) requested that the inpatient clinical records pertaining to gonorrhea and genital warts for B Company, 2nd Division, Camp Casey, Tungdasaun, Korea, be obtained for the period from January 1, 1979, through December 31, 1979. In March 2008, the Personnel Information Exchange System (PIES) informed the AOJ that no records could be located. In April 2008 and July 2008 letters, the AOJ informed the Veteran that his reported record of treatment could not be located, and the Veteran was informed of alternate sources for records that could be used in place of service medical records. In July 2008, the AOJ made a formal finding that the claimed service records were unavailable for review. The Board separately notes that the available service medical records show that in April 1977, the Veteran sought treatment from a service treatment provider for a urethral discharge. A culture was taken to test for gonorrhea. However, the results of that culture are not of record. In cases such as this, where the Veteran’s service records are lost or destroyed, there is a heightened obligation on the part of VA to explain findings and conclusions and to consider carefully whether reasonable doubt exists to resolve in favor of the Veteran. Cuevas v. Principi, 3 Vet. App. 542 (1992); O’Hare v. Derwinski, 1 Vet. App. 365 (1991). Because those records, if they existed, remain absent from the file, the Board’s analysis has been undertaken with that heightened obligation in mind. The case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board’s obligation to evaluate and discuss in a decision all evidence that may be favorable to the claimant. Russo v. Brown, 9 Vet. App. 46 (1996). Service Connection Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a relationship between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 1. Entitlement to service connection for hepatitis C An initial matter, the Board notes that the Veteran has been diagnosed with hepatitis C. Therefore, a current diagnosis is shown. Concerning whether there was an in-service incurrence or aggravation of a disease or injury, a veteran is presumed in sound condition except for defects noted when examined and accepted for service. Clear and unmistakable evidence that (1) the disability existed prior to service and (2) was not aggravated by service will rebut the presumption of soundness. 38 U.S.C. § 1111; Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-2003. The Veteran’s February 1977 service entry physical examination report does not show hepatitis C, and the Veteran indicated on an accompanying Report of Medical History that he had never had hepatitis. However, a June 1977 service examination report shows that the Veteran had a mild case of hepatitis in May 1976, prior to active service. The clear and unmistakable standard is an onerous one consisting of evidence that is undebatable. Cotant v. Principi, 17 Vet. App. 116 (2003); Vanerson v. West, 12 Vet. App. 254 (1999). The June 1977 service examination report only mentions hepatitis by history. Additionally, it does not specify which type of hepatitis was suspected or present. Therefore, the June 1977 service examination report does not clearly and unmistakably show that the Veteran had hepatitis C prior to service. Therefore, concerning hepatitis C, the Veteran is presumed to have been sound upon entering active duty Other than the June 1977 examination report which mentions unspecified hepatitis by history, the service medical records show no complaint of, diagnosis of, or treatment for, hepatitis. However, hepatitis C was not recognized prior to the late 1980s and the Veteran separated from service in 1980. Therefore, the absence of in-service manifestations is not dispositive of the issue. Additionally, the Board notes that the Veteran has consistently asserted that he contracted hepatitis C through high-risk sexual activity while on active duty. To support that assertion, he has stated that he was treated for gonorrhea while on active duty. As reviewed in the introduction, it appears that some of the Veteran’s service medical records are missing. However, the available service records show that the Veteran was treated in April 1977 for a penile discharge, and a culture for gonorrhea was taken. The results of that culture are not of record. The Board finds that engaging in high-risk sexual activity is an observable procedure, and a layperson may provide competent statements of having engaged in high-risk sexual activity. As the Veteran has continuously asserted that he engaged in high-risk sexual activity during service, the Board finds that the Veteran’s lay statement to be both credible and competent in establishing an in-service event. Layno v. Brown, 6 Vet. App. 465 (1994). Additionally, the Veteran has suggested that his hepatitis C could have been incurred due to service medical personnel treating him with a dirty needle. Therefore, the threshold question is whether there is a medical nexus between the Veteran’s in-service high-risk sexual activity and/or in-service medical treatment and the current diagnosis of hepatitis C. Several risk factors for hepatitis C have been recognized by VA, including intravenous drug use, blood transfusions before 1992, organ transplant before 1992, hemodialysis, intranasal cocaine use, high-risk sexual activity, accidental exposure while a health care worker, and various kinds of percutaneous exposure such as tattoos, body piercing, acupuncture with non-sterile needles, and shared toothbrushes or razor blades. VBA Letter 211B (98-110), November 30, 1998. The Board notes that the Veteran has admitted that he has used illicit drugs after service. However, the Veteran has been adamant that he has not used drugs intravenously. The Board notes that a June 1996 treatment record shows that the Veteran had a four-year history of cocaine use. The treatment record indicates that the Veteran smoked cocaine. A review of the medical evidence shows that, in an undated letter, T.M., M.D. stated that according to a service treatment record from June 1977, the Veteran was diagnosed with mild hepatitis C in May 1976. In a December 2007 VA fee-basis examination and medical opinion, the examiner interviewed and examined the Veteran to determine the nature and etiology of hepatitis C. In reviewing the Veteran’s history, the examiner stated that the hepatitis C was at least as likely as not transmitted through high risk sexual activity. In the next sentence of the report, the examiner stated that the disease was contracted by unclear causes. It was noted that the Veteran had been rehabilitated from drug-related problems, but there was no evidence that the Veteran’s drug problems involved intravenous use. The examiner found no evidence in the service treatment records to indicate that the Veteran had hepatitis in the service. The one reference to hepatitis found was the 1977 examination report wherein the Veteran was noted to have had mild hepatitis in May 1976. The examiner noted the undated letter from Dr. M. but clarified that the Veteran was not diagnosed with hepatitis C in May 1976. Rather, the record did not indicate which type of hepatitis was present. The examiner reiterated that the way the Veteran’s hepatitis C occurred was unknown. In a March 2008 letter, T.R.M., M.D., F.A.C.P. stated that it was equally as likely as unlikely that the Veteran contracted hepatitis C during the time he developed a sexually transmitted disease while on active duty. No further rationale was provided. At a December 2010 VA examination, the examiner recorded the Veteran’s self-reported history that he was told on entering the military that he had hepatitis without specifics of A, B, or C. The examiner noted the 1977 service treatment record which indicated a case of mild hepatitis in 1976, per the Veteran’s history. The examiner stated that prior to 1976, hepatitis was described as hepatitis non-A or non-B, and the Veteran acknowledged that he was initially told he had hepatitis without specification of what type. The examiner concluded that it would be mere speculation to state that the Veteran’s hepatitis C was caused by the Veteran’s time in service. In June 2012, the December 2010 VA examiner provided an addendum to that examination report. The examiner stated that while there was sufficient evidence to support the conclusion that sexual transmission of hepatitis C occurs, quantifying the magnitude of an individual’s risk of hepatitis C acquisition by sexual contact has been more challenging. The examiner cited from several professional articles which compared the prevalence of hepatitis C infection reported in groups with high risks of sexually transmitted diseases with the transmission rate among monogamous partners. The examiner stated that the studies found only a slightly higher prevalence of hepatitis C antibodies in the high-risk group than in the monogamous group. The examiner noted that the Veteran stated that he may have been exposed through contaminated needles as part of in-service medical treatment. The examiner acknowledged that the Veteran was likely treated with needles while on active duty, but he was treated at American military facilities. The examiner noted that single use, disposable needles were the standard of care during that time, so contaminated needles or syringes could not have been the source of the Veteran’s hepatitis C. The examiner further noted that the Veteran had a history of crack cocaine use. The examiner cited from a June 1996 medical treatment record which indicated that the Veteran had a history of crack cocaine use mostly in the form of smoking. The examiner stated that there was research evidence to support the risk of hepatitis C transmission through shared cocaine paraphernalia, including pipe use. The examiner explained that occult cracks in the skin of the lips or oral cavity allowed the virus to enter the body. It was also conjectured that the virus could be passed on through inhaled means, as the virus can live on dry surfaces such as dollar bills rolled to hold cocaine for several days. The examiner cited to an article that showed that in a group of 600 presumably healthy cocaine users were tested for hepatitis C, thirty-three percent had positive antibodies to hepatitis C when tested. The examiner summarized that the Veteran’s hepatitis C was less likely than not a progression of service. At an August 2013 VA examination, the examiner opined that the Veteran’s hepatitis C was less likely than not incurred in or caused by his service. The examiner stated that the Veteran reported that he had hepatitis prior to enlisting in service, and that a service treatment record indicated that the Veteran had a history of “mild hepatitis” in May 1976. It was noted that during the 1970s, testing for hepatitis was not routinely performed. The examiner remarked that the Veteran was diagnosed with hepatitis C in 1998, and people were not tested for specific types of hepatitis until 1990. The examiner additionally noted that the Veteran actually tested positive for hepatitis B antibodies. The examiner stated that even if the Veteran had hepatitis C prior to service, that service would not have caused aggravation. The examiner explained that hepatitis C is a virus, and viruses have a natural history of progression or remission. The examiner stated that most cases of hepatitis at the time of the Veteran’s service involved hepatitis A and B. In reviewing the medical opinions of record, only one affirmatively supports the Veteran’s claim, the March 2008 letter from Dr. M.. However, Dr. M. merely gave a bare statement that it was equally as likely as unlikely that the Veteran contracted hepatitis C during the time he developed a sexually transmitted disease while on active duty. No further rationale was given. Among the factors for assessing the probative value of a medical opinion are the physician’s access to the claims file and the thoroughness and detail of the opinion. Hayes v. Brown, 5 Vet. App. 60 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence); Wood v. Derwinski, 1 Vet. App. 190 (1992). As Dr. M. provided no rationale for his given opinion, the Board finds that the March 2008 letter from Dr. M. is of less probative value and outweighed by the other evidence of record. The Board acknowledges that the December 2007 fee-basis examiner stated that the Veteran’s hepatitis C was at least as likely as not transmitted through high risk sexual activity. However, the examiner did not link the Veteran’s hepatitis C to high risk sexual activity that occurred while the Veteran was on active duty. Additionally, in the next sentence of the report, the examiner stated that the disease was contracted by unclear causes. Therefore, due to those ambiguities, to whatever extent the December 2007 opinion could be construed to support the Veteran’s claim, the Board finds it to be of low probative value and outweighed by the other evidence of record. The Board finds the June 2012 VA addendum opinion and August 2013 VA opinion to the most probative evidence of record. Both examiners discussed the Veteran’s various risk factors. The June 2012 VA examiner specifically discussed various medical studies that had been performed regarding the Veteran’s claimed risk factors. Both examiners supported their opinions with rationale. The Board finds the June 2012 VA examination addendum opinion and August 2013 VA opinion to be the most persuasive evidence of record. The probative value of medical evidence is based on the physician’s knowledge and skill in analyzing the data, and the medical conclusion the examiner reaches. As is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. Guerrieri v. Brown, 4 Vet. App. 467 (1993). The Board has considered the Veteran’s lay statements but assigned his opinion regarding the etiology of his hepatitis C less probative weight. The Board finds that such an opinion requires knowledge of the potential causes of the disease, and the inherently medical issue of comparing the in-service and post-service exposures and determining which is more likely to have brought about the post-service diagnosis. Those are not matters which are capable of lay observation. Accordingly, the Veteran’s lay statements are not competent evidence of an etiologic relationship between claimed hepatitis C and service. The Veteran has submitted several articles regarding risk factors for hepatitis C. The Board observes that medical articles or treatises can provide important support when combined with the opinion of a medical professional if they discuss generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222 (1999); Sacks v. West, 11 Vet. App. 314 (1998); Wallin v. West, 11 Vet. App. 509 (1998). However, standing alone, the medical treatise evidence is simply too general to make a causal link between the Veteran’s hepatitis C and his service that is more than speculative in nature. Moreover, the June 2012 VA examiner who provided an opinion on the specific facts of this case noted medical treatise information concerning risk factors and hepatitis C and concluded that it was less likely than not that the Veteran’s hepatitis C was related to or aggravated by his service. Therefore, the Board finds that the statements in the articles submitted by the Veteran are outweighed by the June 2012 VA examiner’s assessment of the medical literature as a whole. Hayes v. Brown, 5 Vet. App. 60 (1993). The Board finds that the preponderance of the evidence is against a finding that the Veteran’s current hepatitis C is related to or aggravated by his service. Consequently, the claim for service connection for hepatitis C must be denied on a direct basis. In a May 2017 brief, the Veteran’s representative noted that the Veteran underwent surgery at a VA Medical Center in September 1982 to correct an inguinal hernia. The representative asserted that as that treatment preceded the confirmation of the Veteran’s diagnosis of hepatitis C and could potentially have placed him in contact with unsterile medical equipment or contaminated blood, the Veteran’s current hepatitis C is related to the September 1982 surgery. Under the applicable criteria, compensation under 38 U.S.C. § 1151 is awarded for a veteran’s qualifying additional disability in the same manner as if such additional disability was service connected. A qualifying disability is one which is not the result of a veteran’s willful misconduct, and which was caused by hospital care, medical or surgical treatment, or examination furnished him under any law administered by VA, and the proximate cause of the disability was (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable. 38 U.S.C. § 1151(a). To determine whether a veteran has an additional disability, VA compares his condition immediately before the beginning of the hospital care, medical or surgical treatment, or examination upon which the claim is based to his condition after such care, treatment, or examination has stopped. VA considers each involved body part separately. 38 C.F.R. § 3.361(b). To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in a veteran’s additional disability. Merely showing that he received care, treatment, or examination and that he has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA’s failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2). Additional disability caused by a veteran’s failure to follow properly-given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. 38 C.F.R. § 3.361(c)(3). The proximate cause of disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(d). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran’s additional disability, it must be shown that the hospital care, medical or surgical treatment, or examination caused his additional disability (as explained in 38 C.F.R. § 3.361(c)); and VA (i) failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) furnished the hospital care, medical or surgical treatment, or examination without a veteran’s or, in appropriate cases, his representative’s informed consent. 38 C.F.R. § 3.361(d)(1). Whether the proximate cause of a veteran’s additional disability was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable, but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2). VA treatment records document that in September 1982, the Veteran had surgery to correct an inguinal hernia. In February 2018, the Veteran underwent VA examination. The Veteran did not recall his history of inguinal hernia surgery or the details of the surgery. The examiner was unable to confirm whether the Veteran was in contact with unsterile medical equipment during that hernia surgery. However, hepatitis C was a virus which would not have been aggravated by inguinal hernia surgery. The examiner explained that hepatitis C is a virus which has a natural history of progression or remission. In an addendum, the examiner opined that the Veteran’s initial origin and etiology of hepatitis C was unclear. The examiner noted that a record dated the initial diagnosis of hepatitis C in May 1976, but he felt that may have been a misprint and actually represented hepatitis A. The examiner stated that there was no objective evidence provided in the form of serology to establish the actual date of origin. The examiner noted the Veteran’s history of drug use and high-risk sexual behavior. The examiner found that it was not at least as likely as not that the Veteran’s hepatitis C was caused by inguinal hernia surgery or any negligence or error in judgement by the VA. The examiner stated that the opinion was provided due to the unclear initial date of onset as well as multiple risk factors, including drug use, high risk sexual activity, and hemodialysis. The Board finds that the record does not support a finding that the proximate cause of the Veteran’s hepatitis C was either (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable. In this matter, the Board finds the opinion of the February 2018 VA examiner to be the most probative and persuasive evidence of record. The examiner commented on what the record did and did not show, and he explained the underpinnings of his given opinion. Significantly, no other competent medical opinion contradicts the opinion of the February 2018 VA examiner. The only statements that suggest a connection between the Veteran’s current hepatitis C and his 1982 hernia surgery come from the accredited representative. The Veteran’s representative has not been shown to have any medical training. Thus, his statements are lay evidence. The Board has considered these lay statements but has assigned them less probative weight. Again, the Board finds that such an opinion requires knowledge of the potential causes of the disease, and the inherently medical issue of comparing the possible hernia surgery with other possible exposures and determining which is more likely to have brought about the diagnosis. Those are not matters which are capable of lay observation. Accordingly, the accredited representative’s lay statements are not competent evidence of an etiologic relationship between the Veteran’s hepatitis C and 1982 hernia surgery. Finally, the Board notes that service connection may also be established on a presumptive basis for certain recognized chronic disease. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309(a)). However, hepatitis C is not recognized chronic disease under 38 C.F.R. § 3.309(a), and as such, service connection cannot be established presumptively. Accordingly, as the probative medical evidence is against a finding that hepatitis C is etiologically related to any aspect of the Veteran’s active service, or to his post-service September 1982 hernia surgery, service connection is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107. New and Material Evidence Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. VA rating decisions and Board decisions that are not timely appealed are final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.1103. A finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. New evidence is defined as 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). An adjudicator must follow a two-step process in evaluating a previously denied claim. First, the adjudicator must determine whether the evidence added to the record since the last final decision is new and material. If new and material evidence is presented or secured with respect to a claim that has been finally denied, the claim will be reopened and decided upon the merits. Once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all the evidence, both new and old, after ensuring that the VA’s statutory duty to assist the appellant in the development of his claim has been fulfilled. 38 U.S.C. § 5108; Elkins v. West, 12 Vet. App. 209 (1999); Vargas-Gonzalez v. West, 12 Vet. App. 321 (1999). The claim to reopen does not require the submission of new and material evidence as to each previously unproven element of a claim for that claim to be reopened. Shade v. Shinseki, 24 Vet. App 110 (2010). For the purpose of establishing whether new evidence is material, the credibility of the new evidence, although not its weight, is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). 2. Whether new and material evidence has been submitted to reopen a previously denied claim for service connection for end-stage renal disease In an April 2000 decision, the Board determined that service connection was not warranted for end stage renal disease. At that time, the evidence consisted of the service medical records, federal treatment records, and the Veteran’s assertions. The Board noted that the service medical records did not contain diagnoses of any kidney or renal disorder or hypertension. The post-service medical evidence did not show that the Veteran had been diagnosed with cardiovascular-renal disease, including hypertension, during the initial post-service year. The Board found that the first post-service medical evidence which showed a diagnosis of end stage renal disease was dated in June 1996. At that time, the Veteran was assessed with chronic renal failure that may have resulted from unrecognized longstanding hypertension, hypocalcemia, and hypertension. A physician indicated that the kidneys were underdeveloped. Following a kidney biopsy, the Veteran was diagnosed with end stage renal disease secondary to glomerulosclerosis. The Board found that the medical records contained no medical opinions relating the Veteran’s hypertension, glomerulosclerosis, or renal disease to active service. The decision of the Board became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104(a), 20.200, 20.302, 20.1103. The evidence added to the claims file after the April 2000 Board denial includes additional VA and private treatment records, and records from the Social Security Administration. Those additional records merely show ongoing treatment for renal disease. They do not give any indication that the Veteran’s renal disease could be related to his service or to a service-connected disability. Therefore, the additional records are cumulative of the evidence in the prior reports previously considered in the April 2000 Board decision. Thus, as they are cumulative, those treatment records cannot be new and material. Anglin v. West, 203 F.3d 1343 (2000). The Veteran has submitted private examination reports from T.R.M., M.D., F.A.C.P.. In a May 2004 letter, Dr. M. states that the Veteran had severe hypertension, which had caused his kidneys to fail. Dr. M. stated that he strongly believed that elevated blood pressure caused the Veteran’s renal failure. In another undated letter, Dr. M. opined that it was more than likely that hepatitis C had caused or contributed to the Veteran’s renal failure. As those records from Dr. M. attribute the Veteran’s renal disease to two nonservice-connected causes, hypertension and hepatitis C, they do not raise a reasonable possibility of substantiating the claim. They are not material evidence to the current claim. All of the newly submitted statements from the Veteran reiterate an assertion that end stage renal disease was caused by hepatitis C. As hepatitis C is not a service-connected disability, those statements are again not material to the current claim. In sum, the Board finds the evidence added to the claims file since the April 2000 Board decision is cumulative or redundant of the evidence of record and does not raise a reasonable possibility of substantiating the claim. The evidence added to the record does not include any new competent and credible evidence which demonstrates that the Veteran’s renal disease occurred in or was caused by service, which was the basis for the prior determination. They also do not include any competent and credible evidence which demonstrates that the Veteran’s renal disease was caused or aggravated by a service-connected disability. As the information provided in support of the application to reopen the claim for service connection for end stage renal disease does not include new and material evidence, the appeal as to this issue must be denied. John L. Prichard Acting Veterans Law Judge Board of Veterans’ Appeals Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Layton, 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.