Citation Nr: 1109751 Decision Date: 03/11/11 Archive Date: 03/24/11 DOCKET NO. 09-40 050 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Veteran represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD N. L. Northcutt, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1967 to November 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Jurisdiction has since been returned to the RO in Nashville, Tennessee. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran contends that he developed hepatitis C as the result of in-service exposure to various hepatitis C risk factors, including tattooing, intravenous drug use, high-risk sexual activity, and shared toothbrushes and razors. The Veteran has provided a medical history of his hepatitis C in conjunction with his VA treatment and examinations. A May 2003 VA PTSD examination report reflects that the Veteran reported that his hepatitis C was discovered when he was involved in a work-related accident in 2001 and received related medical care at the "Baptist Medical Center clinic in Murfreesboro," Tennessee. The Veteran also reported that he received hepatitis C treatment in 2002 from the Southern Hills Medical Center in Nashville, Tennessee. An October 2002 VA treatment record reflects the Veteran's report that he had previously participated in two private hepatitis C clinical treatment studies, but had been unsuccessful in his attempts to obtain those treatment records to provide to his VA physicians. In a release form received by VA in December 2008, the Veteran reported receiving private treatment for his hepatitis C in approximately 2000 or 2001 from Dr. Herring of Southern Hills Medical Center in Nashville, Tennessee. However, the record fails to reflect that VA attempted to obtain these records. As VA has a duty to attempt to obtain all adequately identified relevant records, the Board finds that attempts to obtain the Veteran's treatment records from this facility, as well as the Veteran's reported 2001 treatment from the "Baptist Medical Center clinic," should be made. Additionally, any outstanding VA treatment records should be obtained. 38 C.F.R. § 3.159(c)(2) (2010). Furthermore, as mentioned supra, the Veteran has reported engaging in various hepatitis C risk-related activities during service, and the Veteran's spouse has reported discovering the Veteran's illicit drug use approximately six months after his discharge from service. However, the only service treatment record currently associated with the Veteran's claims file is his June 1967 pre-induction medical examination report. Accordingly, the Board concludes that another request for the Veteran's service treatment records should be made to ensure that all available records have been obtained and associated with the Veteran's claims file. Moreover, as the Veteran has reported engaging in hepatitis C risk-related activity both during and after service, and his reports must be deemed credible unless contradicted by the evidence of record, the Board finds that the Veteran should be afforded a VA examination, to include a medical opinion, that addresses the etiology of the Veteran's hepatitis C, including the potential relationship to service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (holding that a VA examination is warranted when the medical evidence suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (a lay person is competent to report symptoms based on personal observation when no special knowledge or training is required). Cf. Cromer v. Nicholson, 19 Vet. App. 215 (2005) (finding a history, provided by a veteran, that had varied over time was not credible). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should attempt to obtain all of the Veteran's available service treatment records and document such attempts in the Veteran's claims file. 2. The RO/AMC should obtain the Veteran's VA treatment records from September 2009 to the present. 3. Referencing the Veteran's release form submitted in December 2008 authorizing VA to obtain his 2000 or 2001 treatment records from Dr. Herring of Southern Hills Medical Center in Nashville, Tennessee, the RO/AMC should attempt to obtain those records. Additionally, the RO/AMC should request that the Veteran clarify the name and address of his reported 2001 treatment for a work-related injury (reportedly received at the Baptist Medical Center clinic in Murfreesboro, Tennessee, which is perhaps a reference to the Baptist Medical Center in Nashville or another Murfreesboro-based medical facility) and complete an appropriate release form. Thereafter, the RO/AMC should attempt to obtain the Veteran's 2001 private treatment records from this facility. 4. Then, the Veteran should be afforded an appropriate VA examination to address the etiology of the Veteran's current hepatitis C and its potential relationship to service. The examiner should be provided with the Veteran's claims folder and review it in conjunction with the examination. After considering the Veteran's reported in-service hepatitis C risk factors (which are to presumed to be credible absent evidence to the contrary), as well as his reported and documented post-service hepatitis C risk factors, the examiner should opine whether it is at least as likely as not that the Veteran's currently diagnosed hepatitis C was incurred in service. A complete rationale should be provided for all opinions expressed. If the examiner determines that a medically-sound opinion cannot be reached, it is requested that an explanation as to why that is so be included. 5. Following completion of the above, the RO/AMC should again review the record, and the Veteran's claim should be readjudicated. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). _________________________________________________ MICHAEL E. KILCOYNE 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) (2010).