Citation Nr: 21077493 Decision Date: 12/30/21 Archive Date: 12/29/21 DOCKET NO. 16-21 270 DATE: December 30, 2021 ORDER The application to reopen a claim of service connection for hepatitis C is granted. REMANDED Entitlement to service connection for hepatitis C is remanded. FINDINGS OF FACT 1. The appellant's claim of service connection for hepatitis C was originally denied in a November 2009 rating decision on the basis that the disability was not incurred in or caused by service; additional relevant evidence was received following the November 2009 decision and the appellant's claim was readjudicated on a de novo basis and again denied in January 2010 and May 2010 rating decisions on the basis that hepatitis C was not incurred in or caused by service; the appellant did not appeal any of these decisions within one year of their issuance and new and material evidence was not received within one year of the issuance of the May 2010 decision. 2. Evidence received since the May 2010 agency of original jurisdiction (AOJ) decision includes information that was not previously considered and which relates to an unestablished fact necessary to substantiate the claim of service connection for hepatitis C, the absence of which was the basis of the previous denial. CONCLUSIONS OF LAW 1. The AOJ's May 2010 decision that denied the claim of service connection for hepatitis C is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156(a)-(b), 19.52(a), 20.1103. 2. The evidence received since the May 2010 AOJ decision is new and material and reopening of the claim of service connection for hepatitis C is therefore warranted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant had a period of active duty for training (ACDUTRA) with the Army Reserve from June 1967 to October 1967. These matters come before the Board of Veterans' Appeals (Board) from a February 2015 rating decision. The appellant requested a Board hearing before a Veterans Law Judge (VLJ) on his May 2016 substantive appeal (VA Form 9). He was notified that a Board hearing was scheduled for a date in January 2020 by way of an October 2019 letter. This letter was sent to his address of record and was not returned as undeliverable. A copy of the letter was also sent to the appellant's representative. The appellant failed to appear for the scheduled Board hearing. To the Board's knowledge, he has not requested that the requested hearing be rescheduled. The appellant's Board hearing request is therefore considered withdrawn. See 38 C.F.R. § 20.704 (d). As for characterization of the issues on appeal, a claim of service connection for hepatitis C was denied by way of a final May 2010 rating decision. Where the claim in question has been finally adjudicated, the Board must initially determine whether new and material evidence has been submitted with regard to the claim of service connection for hepatitis C. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Only where the Board concludes that new and material evidence has been received does it have jurisdiction to consider the merits of this claim. Hickson v. West, 11 Vet. App. 374, 377 (1998). Therefore, the Board has included the issue of whether new and material evidence has been received to reopen the claim of service connection for hepatitis C. Application to Reopen Generally, an AOJ decision denying a claim which has become final may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (d)(3). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to VA, and material evidence is defined as 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). The newly presented evidence is presumed to be credible for purposes of determining whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110, 117 (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 v. Brown, 9 Vet. App. 273, 285 (1996). The application to reopen a claim of service connection for hepatitis C The appellant's claim of service connection for hepatitis C was originally denied in a November 2009 rating decision on the basis that the disability was not incurred in or caused by service. Additional relevant evidence was received following the November 2009 decision and the appellant's claim was readjudicated on a de novo basis and again denied in January 2010 and May 2010 rating decisions on the basis that hepatitis C was not incurred in or caused by service. The appellant was notified of the May 2010 decision, he did not appeal the decision within one year of its issuance, and new and material evidence was not received within that year. Therefore, the May 2010 decision became final. See 38 U.S.C. § 7105 (d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 19.52(a), 20.1103. The pertinent new evidence received since the May 2010 denial of service connection for hepatitis C includes an internet article received in March 2015 concerning jetgun (air gun) injections. This additional evidence reflects that air gun injectors which were used for vaccinations in the military were capable of causing hepatitis transmission. Medical treatise evidence does not need to be accompanied by a medical opinion to be material evidence. Hill v. McDonald, 28 Vet. App. 243, 255 (2016) ("one of the articles address the missing element of nexus in it states that a lightning strike might affect the musculoskeletal system, including causing contusions, fractures, and muscle and ligament tears. This article is, on its face, material to whether the lightning strike could have worsened the appellant's preexisting back condition"). The appellant contends that his claimed hepatitis C was caused by the use of air gun injectors during his service. Therefore, the additional evidence pertains to an element of the claim of service connection for hepatitis C that was previously found to be lacking and raises a reasonable possibility of substantiating the claim by indicating that the Veteran's claimed hepatitis C may be related to service. The evidence is, therefore, new and material, and the claim of service connection for hepatitis C is reopened. REASONS FOR REMAND Entitlement to service connection for hepatitis C is remanded. In May 2015, the appellant submitted a "General Release for Medical Provider Information to the Department of Veterans Affairs" form (VA Form 21-4142a) on which he reported that he received relevant treatment from Dr. Lawler/Chili Family Medicine. The AOJ has not attempted to obtain these identified relevant outstanding private treatment records. A remand is required to allow VA to obtain authorization and request these records. The matter is REMANDED for the following action: 1. Ask the appellant to identify the location and name of any VA or private medical facility where he has received treatment for hepatitis, to include the dates of any such treatment. Ask the appellant to complete a VA Form 21-4142 for all records of his treatment for hepatitis from Dr. Lawler/Chili Family Medicine and any other sufficiently identified private treatment provider from whom records have not already been obtained. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 2. Readjudicate the claim, to include consideration of the new evidence submitted. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Elwood, 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.