Citation Nr: 0635626 Decision Date: 11/16/06 Archive Date: 11/28/06 DOCKET NO. 04-10 217 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for cause of death. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The veteran had active service from March 1976 to March 1980. He died in April 2003. This matter comes before the Board of Veterans' Appeals (Board) from an August 2003 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. REMAND The veteran died in April 2003, at the age of 44. The death certificate reflects that the immediate cause of death was septicemia; another significant condition contributing to but not resulting in the underlying cause of death was end-stage liver disease due to Hepatitis C. No autopsy was performed. During his lifetime the veteran did not claim or establish service connection for any disabilities. The appellant was sent a Hepatitis development letter in July 2003, to which she responded that same month. She was forwarded a copy of the only available service medical record (SMR), the veteran's service enlistment examination and an adjunct medical history questionnaire, in response to her August 2003 request for copies of his SMRs. She was notified that copies of his service personnel records were not contained in his claim file. The available SMRs do not show that the veteran complained of or sought treatment for Hepatitis C. The veteran's Hepatitis C was first diagnosed years after active service and there is no medical opinion linking it to his period of military service. Nonetheless, where, as here, the SMRs are incomplete, the obligation to explain findings and conclusions and to consider carefully the benefit-of-the-doubt rule is heightened. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). But, this does not lower threshold for an allowance of a claim, for example where the evidence almost but not quite reaches the positive-negative balance. In other words, the legal standard for proving a claim is not lowered; rather, the BVA obligation to discuss and evaluate evidence is heightened. Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, the absence of some of the SMRs in a fire does not create an adverse-presumption rule. Cromer v. Nicholson, 19 Vet. App. 215 ( 2005). The appellant argues that the veteran's Hepatitis C had its inception during service as a result of one or more injections by a jet air gun (or jet injector). The available SMRs also do not show that he received any injections with a "jet air gun." The appellant has submitted a September 2003 article from the Internet apparently created by a non-medical source which indicates that a VA regional office had recently awarded service connection for disability to a Vietnam veteran as a result of "Jet Injectors" used for inoculation. It was stated that a VA research project head had stated that "[a]nyone who had inoculations with the jet injector is at risk of hepatitis C and should be tested.' Research indicates that Hepatitis C virus still exists on medical instruments after cleaning solutions." It was further stated that another problem was that the incubation period for Hepatitis C could be decades long. The appellant's service representative drew attention to and provided a copy of VA Fast Letter 04-13 which addresses the "Relationship Between Immunization with Jet Injectors and Hepatitis C Infection as it Relates to Service Connection." As background information that Fast Letter noted that: In August 2003, one regional office issued a rating decision granting service connection for hepatitis C virus (HCV) infection as the result of immunization with a "jet air gun." A misleading statement, incorrectly ascribed to Lawrence Deyton MSPH, MD Chief Consultant, Public Health Strategic Health Care Group, US Department of Veterans Affairs, Washington, DC is posted on the Internet (http://www.hcvets.com/). On this site, the following is incorrectly ascribed to Dr. Deyton: "Anyone who had inoculations with the jet injector were [sic] at risk of having hepatitis C and should be tested." The Fast letter further states that Hepatitis C "is spread primarily by contact with blood and blood products" and that "[s]ince the 1990's, injection drug use has been the principal mode of transmission" of Hepatitis C. Also, "thus far, there have been no case reports of [Hepatitis C] being transmitted by an airgun transmission." Fast Letter 04-13 concluded that: The large majority of [Hepatitis C] infections can be accounted for by known modes of transmission, primarily transfusion of blood products before 1992, and injection drug use. Despite the lack of any scientific evidence to document transmission of [Hepatitis C] with airgun injectors, it is biologically plausible. It is essential that the report upon which the determination of service connection is made includes a full discussion of all modes of transmission, and a rationale as to why the examiner believes the airgun was the source of the veteran's hepatitis C. In the Informal Hearing Presentation, it was requested that an independent medical expert (IME) opinion be obtained to determine whether the veteran's fatal Hepatitis C was due to inoculations during service by a jet injector. Generally see 38 U.S.C.A. § 7109(a) (West 2002) and 38 C.F.R. § 20.903(a) (2006). While a medical opinion is needed in this case, it does not appear to the Board that the issue is of such complexity or is so controversial as to warrant submission to an IME. Nevertheless, the veteran's claim file should be reviewed by a VA physician for an opinion on this very matter, in accordance with the suggestion in Fast Letter 04-13. Accordingly, the case is REMANDED for the following action: 1. Notify the appellant that she should submit copies of all relevant records in her possession that she has not previously submitted. 2. The appellant should be requested to clarify whether the veteran ever sought or received the Social Security Administration (SSA) disability benefits. If she responds in the positive, contact SSA and obtain a copy of the decision concerning the veteran's claim for disability benefits with that agency, including any medical records used to make the decision, copies of any hearing transcripts, etc. If the RO learns that the records sought do not exist or that further efforts to obtain them would be futile, this must be specifically indicated in the record. 3. Arrange for a VA physician to review the veteran's claim file for an opinion to assess the nature, time of onset, and etiology of the veteran's Hepatitis C. Specific attention of the physician is drawn to the possibility of the use of "jet injectors" to administer inoculations to the veteran during military service. Also, although the appellant reported in a Hepatitis development letter that the veteran had not used intravenous drugs, an August 2000 private clinical record documents his post-service use of crack and some intravenous drug use. These matters should be considered in reflecting the risk factors for the veteran's development of Hepatitis C. The physician should express an opinion as to the nature, time of onset, and etiology of the veteran's Hepatitis C. Specifically, the examiner should render an opinion as to whether it is at least as likely as not that the veteran's Hepatitis C was of service origin In making these determinations, the VA physician should review and consider the VA Fast Letter 04- 13 cited by the appellant's representative. Discuss the rationale of the opinion, whether favorable or unfavorable. If, however, no opinion can be rendered, please explain why this is not possible. 4. Thereafter, the RO should readjudicate the claim. If the benefit remains denied, prepare a Supplemental Statement of the Case (SSOC) and send it to the appellant and representative. Also, provide an appropriate period of time to respond. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The appellant need take no further action until she is further informed. No inference should be drawn regarding the final disposition of the claim as a result of this action. The appellant has the right to submit additional evidence and argument concerning the claim the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. ___________________________________ LINDA ANNE HOWELL Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2006).