Citation Nr: 21006974 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 16-49 195 DATE: February 8, 2021 ORDER New and material evidence having been received, the application to reopen the claim of service connection for hepatitis C is granted. Service connection for hepatitis C is denied. FINDINGS OF FACT 1. The Veteran had active service from June 1973 to August 1974. 2. Service connection for hepatitis C was denied in April 2006, November 2006, and September 2013; the Veteran did not appeal, and those decisions became final. The evidence submitted since the last final denial in 2013 relates to an unestablished fact necessary to substantiate the claim for hepatitis C 3. Hepatitis C is not casually or etiologically related to service. CONCLUSIONS OF LAW 1. The April 2006, November 2006, and September 2013 rating decisions, which denied service connection for hepatitis C, are final. 38 C.F.R. § 7105 (2012); 38 C.F.R. § 20.1103 (2020). 2. New and material evidence has been received to reopen the claim for service connection for hepatitis C. 38 U.S.C. §§ 1110, 5107, 5108 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.159 (2020). 3. Hepatitis C was not incurred in service. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In July 2019, the Board denied the claim. The Veteran appealed to the Veterans Claims Court. In May 2020, the Court vacated the July 2019 Board decision. The case has since been returned to the Board for further action. New and Material Evidence to Reopen the Claim Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision.38U.S.C. §5108; 38C.F.R. §3.156. “New” evidence means evidence “not previously submitted to agency decisionmakers.” “Material” evidence means “evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim.” 38 C.F.R. § 3.156(a). In order to be considered “new and material” evidence, the evidence must not be cumulative or redundant, and “must raise a reasonable possibility of substantiating the claim,” which has been found to be enabling, not preclusive. See Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1991). The record reflects that a claim for service connection for hepatitis C was previously denied in April and November 2006. The Veteran did not appeal, and those decisions became final. In September 2013, the Regional Office denied service connection for hepatitis C due to the absence of an in-service incurrence. The evidence of record at the time of that decision included service treatment records (STRs), lay statements and clinical records. The Veteran did not appeal, and that decision became final. The evidence received since the prior final denial consists of clinical records, duplicate STRs, news articles, prior Board decisions, and lay statements. Specifically, in a November 2016 statement, the clinician rendered an opinion as to whether hepatitis C was incurred in service. This evidence is new as it was not of record at the time of the prior rating decision. Moreover, the evidence is material as it relates to the unestablished element of a nexus between a current disorder and an in-service event. Therefore, the application for service connection is reopened, and the appeal is granted to this extent. Service Connection for Hepatitis C Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). As to a current disorder, in a February 1999 clinical record, the Veteran reported being diagnosed with hepatitis in 1980 but stated that he was not sure what kind. Further, in an October 2012 statement, he stated that he was first diagnosed with hepatitis in 1978 but did not know that it was hepatitis C until 1997. In addition, VA clinical records note hepatitis C was diagnosed in 2004. Therefore, the first element of service connection is met. As to an in-service incurrence, the Veteran contends that he was infected with hepatitis C through the use of air gun inoculators in vaccinations. However, STRs reveal no complaint of, diagnosis of, or treatment for, hepatitis C. Moreover, hepatitis C was not recognized prior to the late 1980s. As the Veteran separated from service in the late 1970s, the absence of in-service manifestations is not dispositive of the issue. To the extent that the Veteran asserts that hepatitis C began in service, in a February 1999 clinical record, he stated that he thought he was exposed to hepatitis C in 1980 after cleaning a septic tank. Further, in an April 2006 statement, he reported that a clinician told him that he had likely had hepatitis C for 30 years and that vaccination guns were “likely the culprit.” In an August 2013 VA opinion, the clinician opined that hepatitis C was less likely than not incurred in service. In support of the appeal, the Veteran’s treating nurse practitioner opined in November 2016 that hepatitis C was directly related to the use of air gun inoculators in vaccinations. He reasoned that the Veteran was in service during the time in which air gun inoculators had been used and that there was no credible evidence of another source of exposure. Moreover, the clinician noted that prior case law and scholarly articles showed a connection between hepatitis C and the use of air gun inoculators in vaccinations. In support of the opinion, the clinician attached a 2005 Board decision. As to the prior Board decision and the clinician’s reliance on the decision in rendering a medical opinion, the Board’s decisions are not precedential and do not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303. Therefore, the 2005 decision is not binding on the facts of this appeal and the clinician’s reliance on a non-precedential decision renders the opinion less probative. Next, although the November 2016 clinician concluded that hepatitis C was incurred in service, there is no indication that he reviewed the claims file, to include the STRs. Moreover, the clinician based his conclusion on the fact that there was no other credible source of exposure, rather than on any medical basis. However, the absence of an etiology does not establish that hepatitis C was due to air gun inoculation. Moreover, the medical evidence reflects that the Veteran has also been diagnosed with HIV, is bisexual, and related to one provider that not all of his partners had been honest about their sero status. While this evidence is not dispositive as to the etiology of hepatitis C, it does weigh against the clinician’s finding that the Veteran had no other risk factors. Therefore, the opinion is assigned lesser probative value. To the extent that the clinician reviewed the VA website and found information regarding hepatitic C and the use of air gun inoculation, it is unclear precisely what he reviewed but a common internet search of the VA website regarding this issue includes a VBA Fast Letter dated in June 2004. This letter concluded that despite the lack of scientific evidence to document transmission of hepatitis C with air gun injectors, it was biologically plausible. A common internet search of the definition of plausible shows that it is defined as within the bounds of possibility. However, the law is well established that service connection cannot be based on resort to speculation or remote possibility. See Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Obert v. Brown, 5 Vet. App. 30, 33 (1993). A biological plausibility that hepatitis C was incurred in service does not meet the standard of “at least as likely as not” that is needed for a grant of service connection. Thus, to the extent that the clinician relied on a review of the website indicating a biological plausibility as the basis of the opinion, it is assigned lesser probative value. The Veteran submitted an internet article from a veteran website discussing the above referenced VBA Fast Letter. However, for the reasons discussed above regarding the clinician’s reliance on the internet article, the article itself is insufficient to establish service connection. Next, while the Veteran reported in 2006 that a physician told him that vaccination guns were “likely the culprit” and statements related to a veteran by a health care professional can be considered, this statement was vague and offered as a bare conclusion without any medical foundation. Further, medical treatment notes from the physician identified by the Veteran were reviewed but reflected no indication that the physician attributed hepatitis C to any event in service. In addition, even if the physician related to the Veteran that air gun inoculator was likely the source, this statement is speculative and not sufficient to support service connection. To the extent that the Veteran contends that hepatitis C was due to immunization by air gun inoculator during service, and that he was exposed to hepatitis C during those inoculations, there is no competent evidence that the instruments used for inoculations were contaminated with the hepatitis C virus, as asserted. Stated differently, for an air gun inoculator or exposure to blood to be considered a risk factor, there had to be exposure to blood infected with hepatitis C. In this case, there is no competent evidence of in-service contact with blood contaminated with hepatitis C. Moreover, there is no evidence showing that the Veteran's receipt of inoculations caused him to develop hepatitis C. The Board has considered the Veteran’s lay statements that hepatitis C began in service. He is competent to report symptoms because this requires only personal knowledge, as it comes to him through his senses; however, he is not competent to offer an opinion as to the etiology of his current disorder due to the medical complexity of the matters involved. Therefore, the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Ragofsky, Attorney Advisor 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.