Citation Nr: 21004654 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 17-15 907 DATE: January 27, 2021 ORDER The petition to reopen the claim of entitlement to service connection for hepatitis (to include hepatitis C) is denied. The petition to reopen the claim of entitlement to service connection for a psychiatric disorder (now claimed as depression) is denied. FINDINGS OF FACT 1. Service connection for hepatitis was denied in a September 1982 rating decision. The Veteran was notified of this decision and his appellate rights in October 1982. He did not file a notice of disagreement (NOD) or submit new and material evidence within the following year and the decision became final. 2. Since the September 1982 rating decision, evidence submitted to reopen the claim relating to the issue of entitlement to service connection for hepatitis is either cumulative or redundant, or does not relate to an unestablished fact necessary to substantiate the claim. 3. Service connection for a nervous condition was denied in a September 1982 rating decision. The Veteran was notified of this decision and his appellate rights in October 1982. He did not file an NOD or submit new and material evidence within the following year and the decision became final. 4. Since the September 1982 rating decision, evidence submitted to reopen the claim relating to the issue of entitlement to service connection for a psychiatric disorder is either cumulative or redundant, or does not relate to an unestablished fact necessary to substantiate the claim. CONCLUSIONS OF LAW 1. The criteria for reopening the claim for entitlement to service connection for hepatitis (to include hepatitis C) have not been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104 (a), 3.156. 2. The criteria for reopening the claim for entitlement to service connection for a psychiatric disorder (now claimed as depression) have not been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104 (a), 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1977 to February 1980. The Veteran testified before the undersigned Veterans Law Judge in March 2020. In August 2020 correspondence VA informed him that it was unable to produce a complete transcript of the proceeding due to audio malfunctions heard throughout his testimony in VA’s recording system. VA offered the Veteran the opportunity to testify at another hearing. The Veteran replied in September 2020 that he did not wish to appear at a hearing and asked VA to consider his case on the evidence of record. The Board observes that additional VA CAPRI records have been associated with the Veteran's eFolder since the Statement of the Case. However, these records are not relevant to the claims decided herein. Therefore, a remand to the Agency of Original Jurisdiction to issue a Supplemental Statement of the Case is not required. 38 C.F.R. § 19.37. New and Material Evidence A claim which has been finally denied in an unappealed rating decision generally may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). An exception to this rule exists when new and material evidence is secured with respect to a claim which has been disallowed, in which case the Secretary shall reopen the claim and review the prior disposition. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156 (a). Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence can be neither cumulative nor redundant of the evidence previously of record and must raise a reasonable possibility of substantiating the claim. Id. The Court of Appeals for Veterans Claims (CAVC) has held that the phrase “raises a reasonable possibility of establishing the claim” must be viewed as enabling rather than precluding reopening. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Id. Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA’s duty to assist or through consideration of an alternate theory of entitlement. Id. at 118. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principle, 3 Vet. App. 510, 513 (1992). Absent the submission of evidence that is sufficient to reopen the claim, the Board’s analysis must cease. The Board may not then proceed to undertake an examination of the merits of the claim. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996); McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). Regardless of whether the RO found new and material evidence to reopen a claim, the Board is not bound by such a determination and must nevertheless consider whether new and material evidence has been received. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). In this case, the Board will therefore undertake a de novo review of the petitions to reopen the claims of entitlement to service connection for hepatitis (to include hepatitis C) and a nervous condition (now claimed as depression). In August 2013 correspondence, the Veteran asserted that the time limit to appeal the September 1982 rating decision should be waived. He stated that he tried to appeal that decision but was told he was not entitled to benefits because his discharge was a chapter 9. When he replied with a copy of his DD 214, he received a reply that he had never been in the Army. His Army service was never acknowledged until 2007. However, a review of the Veteran's eFolder does not show that he submitted a response of any type to the October 1982 notice of the September 1982 rating decision, nor did he submit new and material evidence within the following year. 1. New and material evidence to reopen the claim of entitlement to service connection for hepatitis (to include hepatitis C). 2. New and material evidence to reopen the claim of entitlement to service connection for a nervous condition (now claimed as depression). Service connection for hepatitis and a nervous condition was denied in a September 1982 rating decision. The Veteran was notified of this decision and his appellate rights in October 1982. He did not file an NOD or submit new and material evidence within the following year and the decision became final. Service connection for hepatitis was denied because it was not shown, with any residuals at the time of discharge by history only. Service connection for a nervous condition was denied because it was secondary to improper use of drugs. Turning to the evidence of record at the time of the September 1982 rating decision, the Veteran’s DD 214 reflects that the narrative reason for separation was alcohol or other drug abuse. The Veteran's service treatment records reflect that he underwent inpatient treatment with disposition to duty in October 1979. The diagnoses were improper use of opium, opium alkaloids and their derivatives, heroin, moderate, detoxified; improper use of alcohol, moderate, detoxified; and reactive depression, acute, mild, treated, improved, manifested by feelings of loneliness and unhappiness over being in Germany, unknown stress, unknown predisposition, no impairment for further military duty. The Veteran again underwent inpatient treatment with disposition to duty in November 1979. The diagnoses were hepatitis, HAA [hepatitis-associated antigen] positive; and history of opiate or synthetic morphine-like analgesic drug use within the past 8 months. The Veteran's January 1980 report of separation medical examination reflects that all pertinent clinical evaluations were normal. He had evidence of IV injections on both arms. He admitted to IV drug use, and had had HAA [hepatitis-associated antigen] and hepatitis. The January 1980 report of medical history reflects that the Veteran reported being in good health and under no medication. In November 1979, he had spent 2 weeks in hepatitis isolation. He had a history of positive HAA and hepatitis, and IV drug usage, heroin. On an August 1982 Veteran's Application for Compensation or Pension, the Veteran stated that he was one of 5 generator mechanics to repair 104 generators in a limited period. His Lieutenant kept demanding that he do even more and his mental health broke. He also had a drug problem but his record of 54 generators repaired should show that his drug use did not affect his work efficiency. Evidence added to the record since the September 1982 rating decision includes subsequently dated VA treatment records that show treatment and diagnoses of hepatitis C and major depression in 2009. These records fail to show that the Veteran had hepatitis at separation, or that his post-service hepatitis is related to active duty (other than willful misconduct/drug abuse) or in-service hepatitis, or that his post-service depression is related to active duty or in-service reactive depression. A July 2013 VA Hepatitis, Cirrhosis and other Liver Conditions Disability Benefits Questionnaire (DBQ) reflects that the Veteran reported having no known residuals or problems after his in-service treatment. An August 2009 VA blood test was positive for hepatitis C AB. A September 2013 VHA Clarification provides that the examiner had reviewed VBMS and opined that the Veteran's current hepatitis C was incurred during service. The Veteran was using heroin IV when in service, which was the probable cause of his hepatitis C. A July 2013 VA Mental Disorders DBQ provides a sole diagnosis of Axis 2 personality disorder with antisocial traits. The Veteran reported that during active duty his superiors were making him take speed to stay awake and do his work, so the Veteran decided to take other drugs as well. The examiner noted that the Veteran's intake notes from his in-service rehab noted reactive depression because of feelings of loneliness and unhappiness over being in Germany. There was no notation of being overworked, stressed from work, etc. The examiner stated that she could not find evidence to link the depression that had been ongoing since 2009 with the events that occurred during service. While Veteran was in the service there was paperwork noting “reactive depression” which would mean his depression was caused by a situational stressor, which in his case was documented by the physician at the time as loneliness and unhappiness about being stationed in Germany. There was no paperwork indicating the depression had anything to do with the Veteran's job situation. Additionally, although the Veteran had reactive depression, other people become depressed at situations without resorting to significant drug usage, and the Veteran himself said that he was being made to take speed so he figured he would do other drugs as well. The examiner stated that this statement shows that the Veteran's drug usage was not tied to depression. The examiner stated that any Axis 1 type of syndromes manifested, such as anxiety and/or depression, are at least as likely as not the result of his personality disorder and consequently his personal needs being thwarted by society’s rules and regulations, resulting in depressive symptoms. In his August 2013 correspondence, the Veteran asserted that he contracted hepatitis C during a field exercise with at least another dozen soldiers. The officers in charge of maneuvers and war games forced him to stay up for days on end by giving him X-112, which he described as a German OTC diet medication. After days of this, he was mentally and physically exhausted. His depression began at this time and he began to use harder drugs to be able to do his job. So, the depression came before the drug addiction. The Board finds that the additional VA treatment reports, and the DBQs and VHA Clarification, are new in that they were not in the record at the time of the September 1982 rating decision. However, they are not material. They do not relate to an unestablished fact necessary to substantiate either claim or raise a reasonable possibility of substantiating either claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Shade, supra. They do not show that the Veteran had hepatitis or its residuals at separation from active duty, or that his nervous condition was not secondary to improper use of drugs. See September 1982 rating decision. Moreover, they do not show that the Veteran's current hepatitis C is related to any in-service event other than IV heroin use during active duty, or that the Veteran’s post-service depression is related to any inservice events or reactive depression. They do show a current personality disorder, which for purposes of VA benefits is defined as a congenital or developmental defect that is not a disease or injury for the purpose of service connection. 38 C.F.R. § 3.303 (c). Moreover, evidence such as the VA DBQs and VHA Clarification that is unfavorable to the appellant’s case and which supports the previous denial cannot trigger a reopening of the claim. See Villalobos v. Principi, 3 Vet. App. 450, 452 (1992). The Veteran’s August 2013 correspondence is not new to the extent that it merely repeats his prior contentions that during active duty his superiors overworked him which resulted in a nervous condition. Cumulative and redundant evidence cannot be new. 38 C.F.R. § 3.156 (a). Further, any new evidence is not material to the extent that it contends his current hepatitis is due to his in-service IV heroin use. No compensation shall be paid for disability that was the result of the person’s own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. § 1110. Alcohol abuse and drug abuse, unless they are a secondary result of an organic disease or disability, are considered to be willful misconduct. 38 C.F.R. § 3.301 (c). While the isolated and infrequent use of drugs by itself will not be considered willful misconduct, the progressive and frequent use of drugs to the point of addiction will be considered willful misconduct. 38 C.F.R. § 3.301 (c)(3). Moreover, the July 2013 VA Mental Disorders DBQ provides that the Veteran's service treatment records show that his drug usage was not tied to reactive depression but was a choice he made since he was already being made to take speed. As a result, any contention linking his current hepatitis C to IV heroin use during active duty does not raise a reasonable possibility of substantiating the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Shade, supra. The evidence submitted by the Veteran since the September 1982 rating decision, either by itself or when considered with previous evidence of record, does not relate to an unestablished fact necessary to substantiate his claim for service connection for hepatitis (to include hepatitis C) or his claim for service connection for a psychiatric disorder (now claimed as depression). Therefore, the petition to reopen the claim of entitlement to service connection for hepatitis (to include hepatitis C) and the petition to reopen the claim of entitlement to service connection for a nervous condition (now claimed as depression) must be denied. 38 C.F.R. § 3.156 (a). As new and material evidence has not been received sufficient to reopen either claim, the petitions to reopen the claims must be denied. 38 U.S.C. § 5108. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Davitian, 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.