Citation Nr: 18124091
Decision Date: 08/07/18	Archive Date: 08/03/18

DOCKET NO. 14-14 093
DATE:	August 7, 2018
ORDER
The claim for entitlement to service connection for hepatitis C is reopened.  To this extent only, the appeal is granted.
REMANDED
The claim for entitlement to service connection for hepatitis C is remanded.
FINDINGS OF FACT
1. In an April 2002 rating decision, the agency of original jurisdiction (AOJ) denied the Veteran’s claim of entitlement to service connection for hepatitis C.  The AOJ confirmed and continued the denial in a September 2003 rating decision.  The Veteran neither appealed this decision nor submitted new and material evidence within the one-year appeal period.
2. The evidence associated with the claims file after the AOJ’s previous denials of the Veteran’s hepatitis C service connection claim is new and material as it raises a reasonable possibility of substantiating the claim for service connection for hepatitis C.
CONCLUSIONS OF LAW
1. The September 2003 rating decision denying service connection for hepatitis C is final.  38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2017).
2. New and material evidence has been received to reopen the claim for service connection for hepatitis C.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from March 1987 to September 1989.  The Veteran testified before the undersigned Veterans Law Judge during a November 2016 Board hearing.  This matter is on appeal from a July 2011 rating decision.
The claim for entitlement to service connection for hepatitis C is reopened.  To this extent only, the appeal is granted.
New and Material Evidence 
The Veteran seeks to establish service connection for hepatitis C.  Service connection is established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during periods of active service.  38 U.S.C. § 1110.  In general, service connection requires competent evidence showing: (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).
Under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the Veteran.  38 U.S.C. § 5108; 38 C.F.R. § 3.156(a).  Under the applicable provisions, a claim shall be reopened and reviewed if “new and material” evidence is presented or secured with respect to a claim that is final.  Evidence is considered “new” if it was not of record at the time of the last final disallowance of the claim.  “Material” evidence is evidence which 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 and must raise a reasonable possibility of substantiating the claim.  38 U.S.C. § 5108; 38 C.F.R. § 3.156(a).  If it is determined that new and material evidence has been received, the claim must be reopened.  VA may then proceed to the merits of the claim based on all the evidence of record.
The Board must presume the credibility of evidence to determining whether it constitutes new and material evidence needed to reopen the claims and may not assess its probative weight in relation or comparison to other evidence for reopening purposes.  See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, “credibility” of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness).
Hepatitis C
In April 2002 and September 2003, upon consideration of the Veteran’s service treatment records, the AOJ denied the Veteran’s claim of entitlement to service connection for hepatitis C, reasoning that evidence did not show the disability was not incurred in or not aggravated by service.  The Veteran did not submit a timely substantive appeal or new and material evidence requiring readjudication within one year of the date of notice of the September 2003 decision.  As such, the decision became final.  See 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103.
VA and clinic treatment records, as well as recent VA examination reports associated with the claims file indicate that the Veteran continued to receive treatment relating to his claim for hepatitis C.  Further, the Veteran has provided additional lay statements concerning the relationship between his hepatitis C diagnosis and an in-service medical procedure.  The evidence is new, as it was not of record at the time of the prior denial.  It is also material in that it raises a reasonable possibility of substantiating the Veteran’s claim.  Thus, the claim for service connection for hepatitis C is reopened.  See 38 C.F.R. §§ 3.156(a), 3.304(f); Shade v. Shinseki, 24 Vet. App. 110 (2010) (holding that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low” and 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 the VA’s duty to assist or through consideration of an alternative theory of entitlement).
REASONS FOR REMAND
The claim for entitlement to service connection for hepatitis C is remanded.
The claims file also contains additional VA treatment records related to the Veteran’s claim.  The Board may not consider additional evidence not previously reviewed by the AOJ, unless a waiver of initial AOJ review is obtained from the Veteran.  Disabled American Veterans, et. al. v. Secretary of Veterans Affairs, 327 F. 3d 1339 (Fed. Cir. 2003); 38 C.F.R. § 20.1304(c).  The Veteran has declined to waive AOJ consideration of this relevant evidence.  Therefore, the appeal must be remanded for the issuance of an SSOC.
The matter is REMANDED for the following action:
1. Obtain and associate with the record any outstanding VA treatment records.
2. After completing the above, readjudicate the claim.  If any benefit sought remains denied, provide a Supplemental Statement of the Case to the Veteran and his representative and return the appeal to the Board for appellate review, after the Veteran has had an adequate opportunity to respond.


 
T. MAINELLI
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	N. Rasool 

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