Citation Nr: 21000597 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 16-61 292 DATE: January 5, 2021 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for hepatitis C. Entitlement to service connection for hepatitis C is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and major depressive disorder, is remanded. Entitlement to a temporary total evaluation because of surgical treatment requiring convalescence or hospitalization in excess of 21 days following liver transplant is remanded. FINDINGS OF FACT 1. A December 2011 rating decision denied service connection for hepatitis C; the Veteran filed a timely notice of disagreement (NOD) in December 2011; a statement of the case (SOC) was issued in July 2014; the Veteran did not file a substantive appeal as to the July 2014 SOC, and new and material evidence was not received within the appeal period. 2. Additional evidence received since the final December 2011 rating decision is neither cumulative nor redundant of the evidence previously of record and raises a reasonable possibility of substantiating the claim for service connection for hepatitis C. 3. Resolving reasonable doubt in favor of the Veteran, his hepatitis C developed as a result of exposures in service. CONCLUSIONS OF LAW 1. The December 2011 rating decision denying the claim of service connection for hepatitis C is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received to reopen the claim of service connection for hepatitis C. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for hepatitis C have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1967 to April 1968. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the proceeding is associated with the electronic claims file. The Board has re-characterized the issue on appeal as entitlement to service connection for an acquired psychiatric disorder, to include PTSD and major depressive disorder, to make clear that the issue before the Board is entitlement to a psychiatric disability, regardless of the particular diagnosis. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). New and Material Evidence In general, a RO’s determination that is not appealed within one year becomes a final decision, which may only be reopened with a showing of new and material evidence. 38 U.S.C. §§ 5108, 7105. New evidence is evidence not previously submitted to agency decision makers. Material evidence is 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 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). The Board must review all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. Evans v. Brown, 9 Vet. App. 273 (1996). For purposes of determining whether new evidence is material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). New and material evidence is not required as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of determining whether new and material evidence has been presented to reopen a claim, the evidence for consideration is that which has been presented or secured since the last time the claim was finally disallowed on any basis. Evans, 9 Vet. App. at 285. In a December 2011 rating decision, the RO denied service connection for hepatitis C on the basis that the evidence did not show that his condition began in service or was caused by some event or experience in service. The Veteran initiated an appeal to that decision by filing a NOD, and a SOC was issued in July 2014. The Veteran was notified of that decision but did perfect an appeal within 60 days of the issuance of the SOC and new and material evidence was not received within the appeal period. Accordingly, the December 2011 rating decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. The Board finds that there is a sufficient evidentiary basis to reopen the claim of service connection for hepatitis C. New evidence received since the last final denial in December 2011 includes a private medical opinion from Dr. M.S. and the Veteran’s testimony at the October 2020 Board hearing. The Board finds that the submitted evidence constitutes new and material evidence which directly relates to an unestablished fact necessary to substantiate the Veteran’s claim. Accordingly, as new and material evidence has been received, Board finds that the claim for service connection for hepatitis C is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Service Connection The Veteran contends that he developed hepatitis C as a result of exposures in service. Specifically, he contends that he was exposed to blood of other persons when he received vaccinations administered with an air injection device during service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. In order to establish service connection on a direct basis, the record must contain: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran’s service treatment records (STRs) show that he received vaccinations. No treatment records reflect suspicion or finding of hepatitis. No liver disorder was found on his separation examination. The Veteran’s private medical records indicate that he was diagnosed with hepatitis C in 1996. An October 2011 VA examiner opined that the Veteran’s hepatitis C was less likely than not incurred in or caused by the claimed in-service event. The examiner reasoned that there was no scientific evidence of transmission of hepatitis with air gun injectors. An April 2014 VA examiner opined that based on the Veteran’s history, exposure to air gun injection during service, and lack of history of other sources of exposure after service, his hepatitis C was at least as likely as not incurred in or caused by service. A May 2014 VA examiner opined that the Veteran’s hepatitis C was less likely than not caused by, or a result of air gun injectors during service. He reasoned there has been relatively few incidents of disease transmission between users, despite widespread use of the jet injector by the military and in large-scale vaccination campaigns. However, he also stated that because the jet injector breaks the barrier of the skin, there is a potential that biological material is transferred from one user to the next. The examiner noted that at the present time according to the consensus of the medical literature, there is insufficient information to provide the risk transmission percentage for hepatitis C from air guns inoculations. He noted that the closest comparable event to the air gun inoculation would be that of a needle stick risk, which has an extremely low transmission rate of 1.8 percent, but newer larger surveys have shown only a 0.5 percent transmission rate. The examiner concluded that considering the percutaneous routes and the minute amounts of blood involved are similar, the transmission risks should be comparable. In October 2020, the Veteran submitted a private medical opinion from Dr. M.S. He noted that prior to entering service, the Veteran had no signs and symptoms of liver disease, hepatitis C, or other hepatic viruses. Subsequent to his time in service, he became hepatitis C positive and has experienced a significant number of liver complications including, but not limited to, chronic hepatitis C, cirrhosis of the liver, and carcinoma of the liver. Dr. M.S. noted that while in Vietnam, the Veteran received multiple immunizations and other agents that were administered with the use of an air gun/ jet injector gun. He indicated that the Veteran’s medical records do not identify any attributable known cause of his hepatitis C, as his records are devoid of illicit drug use, tattoos in an unclean environment, blood transfusion prior to 1992, receipt of clotting factors prior to 1987, sexual exposure, hemodialysis, incarceration, or a mother with a known hepatitis infection. He stated that the only significant exposure has been the receipt of immunizations while in service with the use of an air gun. He reasoned that the use of jet injectors results in a compromise of the skin’s integrity. Thus, there is a risk of transfer or blood and biological material being transferred from one user to the next, known as cross-contamination. Consequently, the following patient receiving a vaccine is subjected to contamination of the prior and all prior patients’ blood and bodily fluids. Dr. M.S. stated that the use of the air gun injectors used by the military for mass vaccines has been discontinued for many years due to the fact that they are inherently unsterile. He concluded that given that the Veteran’s only possible exposure was with the air gun injector during service, it is at least as likely as not that his liver conditions including but not limited to his hepatitis C and the complications thereof are service-connected. The Board has been presented with positive and negative medical evidence regarding the etiology of the Veteran’s hepatitis C. However, in weighing the positive and negative evidence of record, and in resolving reasonable doubt in the Veteran’s favor, the Board finds that service connection for hepatitis C is warranted. Here, the evidence of record supports the Board’s finding that the Veteran’s hepatitis C is etiologically related to service. Specifically, the October 2020 private medical opinion and April 2014 VA medical opinion conclude that the Veteran’s hepatitis C is at least as likely as not due to exposure to air gun injectors during service. The Board finds these medical opinions to be probative, as they are based on an accurate medical and lay history as well as provide a reasoned explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As a result, the Board finds that the October 2020 private medical opinion and April 2014 VA medical opinion are entitled to significant weight. In sum, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s hepatitis C is etiologically related to service. Accordingly, the Board must resolve reasonable doubt in the Veteran’s favor and finds that service connection is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 50 (1990). REASONS FOR REMAND Service Connection for an Acquired Psychiatric Disorder The Veteran seeks service connection for an acquired psychiatric disorder. The Veteran was afforded a VA examination in April 2014, in which the examiner indicated that the Veteran did not have a current mental disorder. The Veteran’s 2016 VA treatment records indicate diagnosis of depression, PTSD, adjustment disorder, and anxiety disorder. In May 2018, the Veteran submitted a private psychological evaluation from psychologist F.J.P., in which he was diagnosed with PTSD, major depressive disorder, generalized anxiety disorder, and schizoid personality disorder. The Board finds the medical evaluation to be inadequate as there is no indication that the private provider performed the examination in accordance with the DSM-5 criteria. The Board cannot make a fully informed decision on the claim for service connection for an acquired psychiatric disorder. Accordingly, on remand another VA examination and medical opinion shall be obtained to assess the nature and etiology of any acquired psychiatric disorder present during the appeal period. Temporary Total Evaluation The evidence of record indicates that the Veteran underwent a liver transplant in February 2013 at Virginia Community University Medical Center and had a convalescence period at the Richmond VA Medical Center (VAMC) in March and April 2013. However, there are no treatment records in the claims file related to this procedure or any other surgical procedures that would have required convalescence. Accordingly, on remand the Veteran is invited to identify or submit any relevant records related to his liver transplant and convalescence. The RO should take the appropriate steps to obtain authorization to retrieve the Veteran’s treatment records. The matters are REMANDED for the following action: 1. Obtain the Veteran’s complete VA treatment records, to include records from the Richmond VAMC. 2. Provide the Veteran an opportunity to identify any pertinent treatment records regarding the February 2013 liver transplant. The Agency of Original Jurisdiction (AOJ) should secure any necessary authorizations. If such records are unavailable, the Veteran’s claims file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 3. After completing directive #1, schedule the Veteran for a VA examination with a qualified medical professional to determine that nature and etiology of any acquired psychiatric disorder. The examiner is asked to identify all current psychiatric disorders found on examination. For each diagnosed psychiatric disorder, the examiner is asked to opine as to whether it is at least as likely a not (a 50 percent or greater probability) that any diagnosed psychiatric disorder manifested in or is otherwise etiologically related to the Veteran’s military service. If PTSD is diagnosed, the examiner should detail the stressor(s) upon which this diagnosis is based. (Continued on the next page)   A complete rationale must be provided for all opinions expressed. If an opinion cannot be offered without resort to mere speculation, the examiner must indicate why this is the case and what additional evidence, if any, would allow for a more definitive opinion. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Robinson, 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.