Citation Nr: 20025872 Decision Date: 04/15/20 Archive Date: 04/15/20 DOCKET NO. 18-25 501 DATE: April 15, 2020 ORDER New and material evidence having been received, the claim of service connection for hepatitis C is reopened. New and material evidence having been received, the claim of service connection for cirrhosis of the liver is reopened. New and material evidence having not been received, the claim of service connection for diabetes mellitus, Type II (diabetes) is not reopened. Service connection for hepatitis C is granted. Service connection for cirrhosis of the liver with portal hypertension (cirrhosis of the liver) is granted. Dependency indemnity compensation (DIC) based on service connection for the cause of the Veteran’s death is granted. FINDINGS OF FACT 1. In a November 2011 rating decision, the Agency of Original Jurisdiction (AOJ) denied the claim of service connection for hepatitis C; a timely notice of disagreement (NOD) was not filed, and no new and material evidence was received within the appeal period. 2. Additional evidence received since the November 2011 decision is new, relates to an unestablished fact necessary to substantiate the claim of service connection for hepatitis C, and raises a reasonable possibility of substantiating the claim. 3. In a November 2011 rating decision, the AOJ denied the claim of service connection for cirrhosis of the liver; a timely NOD was not filed, and no new and material evidence was received within the appeal period. 4. Additional evidence received since the November 2011 decision is new, relates to an unestablished fact necessary to substantiate the claim of service connection for cirrhosis of the liver, and raises a reasonable possibility of substantiating the claim. 5. In a November 2011 rating decision, the AOJ denied the claim of service connection for diabetes; a timely NOD was not filed, and no new and material evidence was received within the appeal period. 6. Evidence received since the November 2011 decision is either cumulative or redundant of the evidence of record at the time of the November 2011 denial and, by itself or in conjunction with the evidence previously assembled, does not relate to an unestablished fact necessary to substantiate the claim of service connection for diabetes. 7. The weight of the competent and probative evidence is at least in equipoise as to whether hepatitis C had its onset in or is otherwise related to the Veteran’s periods of service. 8. The weight of the competent and probative evidence is at least in equipoise as to whether cirrhosis of the liver had its onset in or is otherwise related to the Veteran’s periods of service. 9. The weight of the competent and probative evidence is at least in equipoise as to whether the Veteran’s cause of death had its onset during or is otherwise related to his periods of service. CONCLUSIONS OF LAW 1. The November 2011 decision denying service connection for hepatitis C is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. 2. New and material evidence has been received since the November 2011 decision to reopen the claim of service connection for hepatitis C. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The November 2011 decision denying service connection for cirrhosis of the liver is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. 4. New and material evidence has been received since the November 2011 decision to reopen the claim of service connection for cirrhosis of the liver. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 5. The November 2011 decision denying service connection for diabetes is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. 6. Evidence received since the November 2011 decision is not new and material; accordingly, the claim of service connection for diabetes is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 7. The criteria for service connection for hepatitis C have been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 8. The criteria for service connection for cirrhosis of the liver have been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 9. The criteria for entitlement to DIC based on service connection for the cause of the Veteran’s death have been met. 38 U.S.C. §§ 1131, 1310, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1977 to December 1980 and March 1989 to June 1989; he died in December 2016. The appellant is his surviving spouse and was properly substituted as the claimant in this matter. These matters come before the Board of Veterans’ Appeals (Board) on appeal from March 2014 and June 2017 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the appellant testified at a Board videoconference hearing. A transcript of the hearing has been associated with the virtual file. New and Material Evidence Generally, a claim which has been denied in a final decision by an AOJ may not thereafter be reopened and allowed. 38 U.S.C. § 7105(b). If, however, new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary must reopen the claim and review its former disposition. 38 U.S.C. § 5108. To be considered new, evidence cannot have been previously submitted to agency decision makers or be cumulative or redundant of evidence of record at the time of the last prior final denial. To be material, evidence must, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the claim, and raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). 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, 117 (2010). The credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). In deciding whether new and material evidence has been submitted, the Board considers evidence submitted since the time that the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). 1. Whether new and material evidence has been received to reopen the claim of service connection for hepatitis C. 2. Whether new and material evidence has been received to reopen the claim of service connection for cirrhosis of the liver. After review of the record, the Board finds that new evidence has been received since the final prior decision, and such evidence is material to the issues of service connection for hepatitis C and cirrhosis of the liver. In November 2011, the AOJ denied original claims of service connection for hepatitis C and cirrhosis of the liver based on a negative nexus opinion. The Veteran did not file a timely NOD and no new and material evidence was received within the period; therefore, the November 2011 decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 3.104, 3.156(b), 20.1103. The Board will therefore consider evidence received since the November 2011 decision. In May 2015, VA received a letter from Gary A. Thomas, M.D., indicating a positive nexus between hepatitis C and cirrhosis of the liver and the Veteran’s periods of active service. Specifically, stating that jet injector inoculations used during military service is as likely as not to have caused hepatitis C which secondarily caused cirrhosis of the liver. December 2014, Private treatment record. The Board finds this evidence is new and directly pertains to the basis for the prior final denial, by addressing whether hepatitis C and cirrhosis of the liver are causally related to the Veteran’s periods of active service. The claims of service connection for hepatitis C and cirrhosis of the liver are therefore reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. Whether new and material evidence has been received to reopen the claim of service connection for diabetes. After review of the record, the Board finds that evidence received since the November 2011 decision denying service connection for diabetes is either cumulative or redundant of the evidence of record at the time of the November 2011 denial and, by itself or in conjunction with the evidence previously assembled, does not relate to an unestablished fact necessary to substantiate the claim of service connection for diabetes. In November 2011, the AOJ denied original claims of service connection for diabetes based on the lack of an in-service incident and a negative nexus between the disorder and the Veteran’s periods of service. The Veteran did not file a timely NOD and no new and material evidence was received within the period; therefore, the November 2011 decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 3.104, 3.156(b), 20.1103. The Board will therefore consider evidence received since the November 2011 decision. In May 2015, VA received a letter from Dr. Thomas opining that cirrhosis of the liver is causally related to service but diabetes is not etiologically related to cirrhosis of the liver. December 2014, Private treatment record. The appellant stated she believed diabetes was causally related to cirrhosis of the liver since the Veteran developed diabetes after cirrhosis was diagnosed. See January 2020, Hearing transcript; October 2014, NOD. Initially, the Board notes that although the lay evidence is new, it cannot serve as a basis for new and material evidence within the meaning of § 5108 since a lay person is not competent to render medical opinions. See Glynn v. Brown, 6 Vet. App. 523, 530 (1994) (finding no clear and unmistakable error when the Board refused to reopen a claim based, in part, on an incompetent statement from a lay witness rending a medical opinion); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.156(a); 38 U.S.C. § 5108. Additionally, the private physician’s negative nexus opinion is cumulative or redundant of the evidence of record and is therefore not new evidence. Based on the foregoing reasons, the Board finds the appellant failed to submit new and material evidence since the previous final denial; accordingly, the claim of service connection for diabetes is not reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Service Connection 4. Service connection for hepatitis C. 5. Service connection for cirrhosis of the liver. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303(a). As a general matter, establishing service connection requires competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. The appellant is competent to report symptoms and experiences observable by his or her senses, but not to diagnose the cause of symptoms, as this requires specialized medical training. See Jandreau, 492 F.3d at 1377; 38 C.F.R. § 3.159(a). In relevant part, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). The appellant contends that the medical evidence of record is sufficient to support service connection for hepatitis C and cirrhosis of the liver. Specifically, the appellant contends the Veteran contracted hepatitis C during bootcamp from an air gun inoculator that was used on over 150 soldiers. January 2020, Hearing transcript; November 2018, VA form 21-4138; July 2012, Correspondence. After review of the record, the Board finds the criteria for service connection for hepatitis C and cirrhosis of the liver with portal hypertension have been met. The record contains competent diagnoses of chronic hepatitis C and cirrhosis of the liver with portal hypertension. See September 2011, VA treatment record; December 2014, Correspondence by Dr. Thomas. The Board, accordingly, finds competent evidence of a current disorder. Service treatment records (STR) indicate the Veteran’s complaint of hepatitis, possible hepatitis was indicated, but he did not have jaundice and bile was negative. May 1978, STR. In November 2011, a VA examiner opined that it is less likely than not that hepatitis C and cirrhosis were caused by the Veteran’s periods of service. The examiner reasoned the Veteran had a tattoo before service which could have caused hepatitis C, and cirrhosis is most likely due to hepatitic C as it has caused long-term liver changes. November 2011, VA examination. In December 2014, the Veteran’s previous treating gastroenterologist, Dr. Thomas, considered the Veteran’s professional tattoos as potential risk factors for hepatitis C as well as potential exposure from a jet injector inoculator used during the military. Dr. Thomas, while acknowledging other risk factors, opined the jet injector used during service was as likely as not the cause of hepatitis C. He further explained that chronic hepatitis C can cause significant liver damage, as is the case with the Veteran’s development of cirrhosis of the liver with portal hypertension. Private treatment records dated July 2014 and December 2014. In August 2015, John J. Poterucha, M.D., a previous treating physician of the Veteran’s, noted the Veteran did not have the usual recognized risk factors for hepatitis C (such as illicit drug use or prior blood transfusions), but received multiple injections using a jet injector in the military. Dr. Poterucha opined the jet injector carries a risk of transmission of hepatitis C and is likely the cause of the Veteran’s hepatitis C. August 2015, Correspondence. In September 2018, a private medical opinion was provided by Barbara Wade, M.D., a board-certified infectious disease specialist, after reviewing the claims file, medical and military records, and the medical opinions of Dr. Thomas and the 2011 VA examiner. Dr.Wade noted the Veteran’s statements that he never engaged in high risk activities for hepatitis C, never had a blood transfusion, never used intravenous drugs, has had the same spouse/partner since 1982, and his two tattoos were created by needles removed from sealed sterilized packets. She also considered the Veteran’s statement that he was exposed to air jet injector shots on several occasions in service; the first instance was in basic training where his entire company (150+) assembled outside to receive 8 to 12 shots and many soldiers were bleeding significantly from ill-aimed shots. Dr. Wade discussed the history of the hepatitis C virus and risks of infection from military jet injectors, then opined it is at least as likely as not that hepatitis C was caused by jet injector inoculations administered during service given the documented, undisputed risks of infection from mass inoculations with jet injectors, rather than his professional tattoos as professional tattoo artists are typically well versed in the ability to decrease infections by using sterile instruments. She further opined that it is at least as likely as not that cirrhosis of the liver was caused by hepatitis C as hepatitis C is the leading cause for chronic cirrhosis and patients with hepatitis C do not show hepatic-specific symptoms of the infection for diagnosis until clinical manifestations occur, which was clearly the case for the Veteran. September 2018, IME; November 2018, VA form 21-4138. In light of the above, the Board finds the weight of competent and probative evidence is at least in equipoise as to whether chronic hepatitis C and cirrhosis of the liver with portal hypertension were caused by or related to the Veteran’s active service. The Board finds Dr. Wade’s positive nexus opinion to be competent, credible, and highly probative, as it is supported by review of the relevant medical history and claim’s file, reports accurate history, includes a description of the Veteran’s condition, proper consideration of lay evidence, addresses other medical opinions of record, and provides clear clinical findings supported by data. See September 2018, report; November 2018, VA form 21-4138; Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board assigns less weight to the 2011 VA examiner’s negative opinion because the examiner did not have the opportunity to review the Veteran’s lay statements concerning his professional tattoos and the details concerning in-service jet inoculations. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (a medical opinion is inadequate if it does not take into account the Veteran’s reports of symptoms and history). Resolving all reasonable doubt in favor of the Veteran, the Board finds service connection for a chronic hepatitis C and cirrhosis of the liver with portal hypertension are both warranted. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 57-58. 6. Dependency indemnity compensation (DIC) based on service connection for the cause of the Veteran’s death A surviving spouse of a qualifying veteran who died as a result of a service-connected disability is entitled to receive dependency and indemnity compensation. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. As noted above, the appellant is the Veteran’s surviving spouse. November 2018, Death certificate. To warrant service connection for the cause of the Veteran’s death, the evidence must show that a service-connected disability was either a principal or a contributory cause of death. A disability will be considered the principal cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. A disability will be considered a contributory cause of death when it contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. The death certificate lists the causes of death as cardiac arrest due to severe portopulmonary hypertension, end-stage liver disease, and hepatitis C cirrhosis with nonalcoholic steatohepatitis. November 2018, Death Certificate. As the Board has already determined service connection for hepatitis C and cirrhosis of the liver with portal hypertension are warranted, service connection for the Veteran’s cause of death is likewise warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Straughn, Associate 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.