Citation Nr: 20029181 Decision Date: 04/27/20 Archive Date: 04/27/20 DOCKET NO. 18-32 180 DATE: April 27, 2020 ORDER As new and material evidence sufficient to reopen the previously denied claim for service connection for hepatitis C has not been received, the application to reopen is denied. FINDINGS OF FACT 1. In a June 2009 rating decision, the RO confirmed and continued a February 2009 denial of the Veteran’s claim for service connection for hepatitis C on the basis that there was no evidence of any in-service risk factors for hepatitis C that were not due to willful misconduct on the Veteran’s part; the Veteran did not appeal this denial or submit new evidence within one year of this denial. 2. Evidence received since the June 2009 RO decision is cumulative and redundant of evidence already of record and does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for hepatitis C. CONCLUSIONS OF LAW 1. The June 2009 rating decision denying service connection for hepatitis C is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 20.1103. 2. New and material evidence sufficient to reopen the Veteran’s claim of entitlement to service connection for hepatitis C has not been submitted; the claim is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1977 to April 1979. In March 2020, the Veteran testified at a Travel Board hearing before the undersigned. The Board notes that there is some ambiguity in the record regarding the Veteran’s representation. In December 2015, he submitted a valid VA Form 21-22 appointing Disabled American Veterans (DAV) as his representative. A June 2018 VA Form 21-22a appointed a private individual, D.B.L., as his representative under 38 C.F.R. § 14.630. However, this form was not accompanied by a statement signed by D.B.L. and the Veteran that no compensation would be charged or paid for the services, as required under 38 C.F.R. § 14.630(a). VA has continued to recognize DAV as the Veteran’s proper representative. The Veteran has not been prejudiced by this nor was he unaware of it as he was represented by DAV at his RO and Board hearings. 1. Whether new and material evidence has been submitted sufficient to reopen the previously denied claim for service connection for hepatitis C Where service connection for a disability has been denied in a final decision, a subsequent claim for service connection for that disability may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. New evidence means 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). According to the United States Court of Appeals for Veterans Claims (Court), the pertinent VA law requires that in order 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. See Evans v. Brown, 9 Vet. App. 273 (1996). When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, raise a reasonable possibility of substantiating the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). The newly presented evidence need not be probative of all the elements required to award the claim, just probative of each element (or at least one element) that was a specified basis for the last disallowance of the claim. See Evans, supra at 283; see also Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998) (noting that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to grant the claim). The credibility of the newly submitted evidence is presumed for the purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510 (1992). The Veteran’s claim for service connection for hepatitis C was initially denied in a February 2009 rating decision. The RO determined that the evidence showed that the Veteran’s hepatitis C was caused by his own willful misconduct, specifically his intravenous heroin use in service. After the Veteran submitted new evidence, the RO confirmed and continued this denial on the same basis in a June 2009 rating decision. The Veteran did not appeal this decision or submit any new evidence within one year of the denial. The June 2009 rating decision thereby became final. The previous denial of service connection was premised on findings that there was no evidence of risk factors or in-service incurrence of hepatitis C other than due to the Veteran’s own willful misconduct. VA regulations prohibit the granting of service connection for a disability that is the result of the Veteran’s willful misconduct. 38 C.F.R. § 3.301. Thus, for evidence to be material in this matter, (i.e., relating to unestablished facts necessary to substantiate the claim, and raising a reasonable possibility of substantiating the claim), it would have to show that there is now evidence of an in-service risk factor for hepatitis C that was not the result of his willful misconduct. The Veteran has submitted no such evidence. The new evidence submitted or obtained since the last final denial in June 2009 are (1) VA treatment records, (2) a November 2015 letter from the Veteran’s private physician, (3) a May 2018 Hepatitis DBQ from the Veteran’s VA physician, and (4) various statements and RO and Board hearing testimony from the Veteran. None of this evidence establishes any in-service risk factors for hepatitis C that are not due to the Veteran’s own willful misconduct. Significantly, the new medical evidence confirms that the Veteran’s hepatitis C was due to his intravenous drug use in service. The only evidence to suggest a different risk factor are May 2018 and August 2018 written statements from the Veteran. In the May and August 2018 statements, the Veteran claims that he received a blood transfusion in service to treat his overdose from intravenous heroin use. The Board notes that there is no evidence of such a blood transfusion in his service treatment records. However, even if the Board were to presume this to be true for purposes of reopening the claim, this would still be the result of the Veteran’s own willful misconduct. He claims that he received the blood transfusion as treatment for a heroin overdose. As the in-service heroin use is willful misconduct, any disability arising therefrom, including from any relevant treatment, would be due to the Veteran’s own willful misconduct. As such, this assertion is not evidence that raises a reasonable possibility of substantiating the claim. Rather, this claim is redundant of the prior statements indicating that the hepatitis C resulted directly from his drug use. In sum, the evidence submitted since the June 2009 RO denial of service connection does not include any evidence showing in-service risk factors for hepatitis C that are not due to the Veteran’s own willful misconduct. The additional treatment records and statements/hearing testimony are “new” but not material. Rather, they are simply redundant of evidence of record at the time of the prior denial and do not constitute new evidence. Bostain v. West, 11 Vet. App. 124 (1998) (lay hearing testimony that is cumulative of previous contentions considered by decision maker at time of prior final disallowance of the claim is not new evidence). As stated above, in order to reopen the previously denied claim for service connection for hepatitis C, the Veteran must submit evidence that shows an in-service risk factor for hepatitis C that is not due to his own willful misconduct. The evidence he has submitted, as well as the evidence obtained by VA, fails to establish such. Accordingly, the Board finds that the evidence received since the June 2009 rating decision, while not previously considered, does not raise a reasonable possibility of substantiating the claim. The petition to reopen the Veteran’s claim for service connection for hepatitis C is denied. The Board is grateful to the Veteran for his service, and regrets that it cannot render a favorable decision in this matter. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Moore, 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.