Squidly cracked the safe. The 2012 decisions are available if you know the secret handshake and the password.

Obviously we aren’t going to use any names here. A while back I was putting up BVA cases and showing how (or how not to) be successful at it and a gentleman who identified himself as “Cleotis” left us a veiled threat that he “better not see his name up here”. Since I didn’t know who Cleotis was at the time, I felt powerless to prevent publication of his particular case. I wasn’t even sure he had continued to pursue it after he became angry with me for my perceived failures.

While strolling through the new 2012 cases I came across this one of a fellow I helped for over two years in an attempt to get him service connected. After many losses, and much work on getting the proper nexus letters, I was accused of being inept, unwilling to help him and generally an asshole for even pretending to know what I was doing. We parted company on less than happy terms. Then it dawned on me who Cleotis was. Damned if he hadn’t won. Why he never told me is a mystery. Most would be happy to share. Perhaps he’s too proud to apologize for his rudeness.

When I spotted this, my heart jumped for joy. I had gone to great lengths to push him to redevelop his evidence properly and present it anew. At some point I took over and rewrote his NOD for him. He apparently completed the appeal process because he won. vA says this is the benefit of the doubt but the preponderance of the evidence was in his favor from the beginning. Reading through his files was a litany of the typical vA justifications for denial and a purposeful ignoring of the facts needed to prove it. So, of all the cases I’ve ever taken on, this will probably be my finest hour. I don’t want to take credit for it completely because Cleotis and his wife carried the water. I wrote many a letter for them to file over the years. Much of it was done from my hospital bed when I was a guest of the Seattle VAMC in 2009.

God, there’s nothing finer than realizing this system for winning claims works. Cleotis, if you’re reading this, forgive me for publishing it. I don’t care if you never thank me for all my hard work, either. That isn’t why I do it. As I point out to each and every one of you- If the shoe was on the other foot, I’m sure you’d do it for me if you had the wherewithal.

Here is my most stunning assist in my four years of doing this. I’m saddened that it took so long and required going to D.C. Unfortunately Cleotis’ earlier legal help had made a complete hash of it and even failed to file his substantive appeal causing him to have to start over. Congratulations Cleotis. Hell, if you can win anyone can.

Citation Nr: 1206365
Decision Date: 02/21/12 Archive Date: 03/01/12

DOCKET NO. 10-28 394 ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California

THE ISSUE

Whether new and material evidence has been submitted to reopen a previously denied claim of entitlement to service connection for hepatitis C.

REPRESENTATION

Appellant represented by: Richard E. Geyer, Attorney at Law

ATTORNEY FOR THE BOARD

B. Diliberto, Associate Counsel

INTRODUCTION

The Veteran had active service from March 1965 to February 1968.

This matter comes before the Board of Veterans’ Appeals (BVA or Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, that denied the benefit sought on appeal. The Veteran appealed that decision, and the case was referred to the Board for appellate review.

In January 2012 the Veteran, through his representative, submitted additional evidence without a waiver of RO consideration. See 38 C.F.R. § 20.1304 (2011). However, in light of the positive determination below, there is no prejudice for the failure to remand the appeal back to the RO for issuance of a Supplemental Statement of the Case (SSOC).

FINDINGS OF FACT

1. The RO, in an October 2006 rating decision, denied entitlement to service connection for hepatitis C. The Veteran did not timely appeal that rating decision and it is now final.

2. The evidence received since the October 2006 rating decision relates to an unestablished fact necessary to substantiate the Veteran’s claim of entitlement to service connection for hepatitis C and raises a reasonable possibility of substantiating that claim.

3. The competent and probative evidence of record is in relative equipoise as to whether the Veteran has hepatitis C that is related to his military service.

CONCLUSIONS OF LAW

1. The October 2006 rating decision, which denied entitlement to service connection for hepatitis C, is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.104 (2011).

2. The additional evidence presented since the rating decision in October 2006 is new and material and the claim of entitlement to service connection for hepatitis C is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2011).

3. Resolving reasonable doubt in his favor, the Veteran has hepatitis C which is related to his active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2011).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Before addressing the Veteran’s claim on appeal, the Board is required to ensure that the VA’s “duty to notify” and “duty to assist” obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010). In connection with a claim to reopen on new and material evidence and in accordance with Kent v. Nicholson, 20 Vet. App. 1 (2006), the RO must satisfy the duty to notify with a letter defining new and material evidence, advising the Veteran of the reasons for the prior denial of the claim of service connection and noting the evidence needed to substantiate the underlying claim of service connection. However, given the favorable disposition in this adjudication, and the fact that no prejudice to the Veteran could result from the Board’s decision, no further notice or assistance is required. Mayfield v. Nicholson, 19 Vet. App. 103, 115 (2005); Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004); Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92.

The Veteran first claimed entitlement to service connection for hepatitis C in May 2006. The RO denied entitlement to service connection for that condition in October 2006, finding that there was no evidence linking that condition to service. The Veteran submitted a Notice of Disagreement (NOD) with that rating decision in April 2007. The RO issued a Statement of the Case (SOC) in March 2008, but the Veteran did not file a timely Substantive Appeal. Accordingly, that decision is now final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103.

In October 2008 the Veteran filed to reopen his previously denied claim of entitlement to service connection for hepatitis C. The RO issued a rating decision in October 2009, finding that new and material evidence had not been presented and declining to reopen the Veteran’s claim. The Veteran submitted a Notice of Disagreement (NOD) in January 2010. The RO issued a Statement of the Case (SOC) in May 2010 and the Veteran filed a Substantive Appeal (VA Form 9) in June 2010. Regardless of how the RO ruled on the question of reopening the Board as the final fact finder within VA must initially determine whether new and material evidence has been submitted. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001).

As a general rule, a claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to a claim that is final. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. When a veteran seeks to reopen a final decision, the first inquiry is whether the evidence presented or secured after the last disallowance is “new and material.” Under 38 C.F.R. § 3.156(a), new evidence means evidence not previously submitted to agency decision makers. 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. 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).

Furthermore, “material evidence” could be “some new evidence [that] may well contribute to a more complete picture of the circumstances surrounding the origin of the veteran’s injury or disability, even where it will not eventually convince the Board to alter its rating decision.” Hodge v. West, 155 F. 3d 1356, 1363 (Fed. Cir. 1998). If it is determined that new and material evidence has been submitted, the claim must be reopened and the VA may then proceed to the merits of the claim on the basis of all the evidence of record.

When determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). In order for evidence to be sufficient to reopen a previously denied claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1990).

The evidence submitted since the October 2006 rating decision consists of VA treatment records, letters from both VA and private physicians and numerous statements from both the Veteran and his spouse. The Board has determined that this evidence is both new and material. Specifically, the Board finds that the VA and private physician letters are competent evidence indicating a likelihood that the Veteran was exposed to hepatitis C while in service. New and material evidence having been submitted, the claim of entitlement to service connection for hepatitis C is reopened.

Having been reopened, the Veteran’s claim of entitlement to service connection for hepatitis C must be reviewed on a de novo basis. Service connection will be granted for a disability resulting from an injury or disease incurred in or aggravated by active service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. If there is no showing of a resulting chronic disorder during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

Generally, to prevail on a claim of service connection on the merits, there must be medical evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Coburn v. Nicholson, 19 Vet. App. 427 (2006); Shedden v. Principi, 381 F. 3d 1163, 1166 (Fed. Cir. 2004). If the Veteran fails to demonstrate any one element, denial of service connection will result.

The Veteran’s service treatment records are negative for any findings of treatment pertaining to hepatitis C. The Veteran’s entrance examination indicates that he entered service with a tattoo on his right upper arm and his discharge examination indicates scars on the right forearm and tattoos on the right forearm and right arm. Other injuries are also noted, including a closed fracture of the right ankle due to an assault by unknown assailants.

VA treatment records dating back to August 2002 indicate findings of hepatitis C. VA treatment records from January 2003 note that the Veteran had many tattoos on his body. The Veteran denied any intravenous drug use or blood transfusions. He reported a history of snorting cocaine in the late 1970s and early 1980s. He indicated that this was done in a group with common straws passed around. He also reported a history of multiple fights with other people where he was exposed to blood in the 1960s, a history of driving needles into his right thigh as part of a bet and a history of sharing razors and toothbrushes. He stated that each of these events occurred in service.

In a December 2006 statement the Veteran stated his belief that he contracted hepatitis C from unsanitary jet injectors. He also reported other blood transfers from fights and injuries suffered in service, relating these events in detail. He stated that he received a tattoo to his right forearm while in the field and that the needle was used by several individuals. The Veteran has subsequently submitted numerous additional statements which are largely reiterative.

The Veteran submitted a December 2006 letter from a private physician, wherein the physician stated that the Veteran’s hepatitis C was related to service based on a history of extensive unprotected blood exposure through multiple situations.

In March 2007 the Veteran submitted a letter from a physician at the VA Medical Center in Martinez, California. In that letter the physician stated that the Veteran did not have any identified civilian means by which his hepatitis C could have been acquired. He related the Veteran’s history of in-service fights and stated that the Veteran’s military blood exposure offers a plausible explanation for his hepatitis C infection.

In May 2009 another physician from the VA Medical Center in Martinez, California, submitted a letter in support of the Veteran’s claim. This physician discussed the Veteran’s reported history in detail. He also evaluated the Veteran’s service treatment records. He provided an opinion that the events related by the Veteran are at least as likely as not related to his current hepatitis C infection. In so stating the physician stated that the Veteran’s reported history was credible and that the medical history documented in his service medical records supported his contentions. The physician also noted that the Veteran’s liver biopsy suggested a much earlier date of infection than the late 1970s.

A June 2009 letter from the same physician who wrote the March 2007 letter indicates that physician’s opinion that the Veteran’s hepatitis C infection was most likely acquired during his period of military service in the 1960s.

After weighing the evidence of record and resolving all reasonable doubt in favor of the Veteran, the Board finds that the evidence is in relative equipoise as to whether he has hepatitis C that is related to his military service. For the Veteran to be successful in his claim, he needs to show only that it is at least as likely as not that his current disability is related to service. See 38 U.S.C.A. § 5107(b). The Board finds that standard has been met in this case. In so finding, the Board notes that the Veteran has been diagnosed with hepatitis C and that numerous physicians have stated that it is at least as likely as not that the Veteran contracted hepatitis C while in service. In this context, the Board also finds that the Veteran is competent to relate events in which he has been involved, namely fist fights and assaults in service. See Charles v. Principi, 16 Vet. App. 374-75 (2002).

In making this determination, the Board is not attempting to make an independent medical determination; rather, it is weighing the evidence of record and making a determination as to the probative value of such evidence. See Evans v. West, 12 Vet. App. 22, 30 (1998).

ORDER

New and material evidence having been presented, the claim of entitlement to service connection for hepatitis C is reopened.

Entitlement to service connection for hepatitis C is granted.

____________________________________________
V. L. JORDAN
Veterans Law Judge, Board of Veterans’ Appeals

I notice that the date of the win is 3/01/2012. I also notice Cleotis’ reminder not wishing to see his name in lights was dated 3/15/2012.  Oh, well. Sometimes you can’t please the customer no matter how hard you try. I also notice Cleotis followed my advice and retained a lawyer to carry the water. Smart man.