Citation Nr: 1119127 Decision Date: 05/18/11 Archive Date: 05/26/11 DOCKET NO. 09-28 093 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for hepatitis, claimed as hepatitis A, but diagnosed during active service as Australian Antigen Positive hepatitis, currently regarded as a form of hepatitis B. 2. Entitlement to service connection for hepatitis C. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Higgs, Counsel INTRODUCTION The Veteran served on active duty from July 1971 to July 1974. These matters are before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in September 2007, by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran provided testimony at a September 2009 hearing before an RO Decision Review Officer. A transcript of the hearing is associated with the claims file. The issues on appeal have been recharecterized in light of the holdings of the Court of Appeals for Veterans Claims (Court) in Clemons v. Shinseki, 23 Vet. App. 1 (2009) (claimant seeking service connection for disability who has no special medical expertise is not competent to provide diagnosis requiring application of medical expertise to facts such as claimant's description of history and symptoms; VA should construe claim for service connection based on reasonable expectations of non-expert claimant). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran was treated for and objectively diagnosed during service as having an episode of a form of hepatitis B, then known as Australian Antigen Positive hepatitis. A May 2008 VA examination report and what appears to be an unsigned, undated note from an private expert clinician, also received in May 2008, both express that it is plausible that the Veteran's case is unusual in that he never developed an immunity to this form of hepatitis B, as evidenced by certain laboratory test results. Both clinicians appear to be of the opinion that there is a reasonable possibility that the Veteran may have experienced this form of hepatitis B from the time of his discharge from active service in July 1974 through at least approximately the year 2006. However, the Board cannot ascertain from either opinion the relative probability of whatever degree that this was in fact the case. It further appears that the Veteran (and in turn the RO) mistakenly interpreted this episode of acute in-service hepatitis was for hepatitis A, and that such confusion might stem from the reference to "Australian Antigen Positive hepatitis," an early term for a form of hepatitis B. As the Board understands the medical laboratory reports of record, laboratory testing indicates that the Veteran does not have hepatitis A and is immune to hepatitis A as a result of an unknown remote episode of exposure to the hepatitis A virus. Additionally, it appears that the Veteran was diagnosed with hepatitis C in approximately July 2006. The May 2008 VA examiner has expressed the view that the Veteran may have been infected with hepatitis B and hepatitis C concurrently. He expressed the view that it is less likely than not that the Veteran contracted hepatitis C during service, but the reasoning seems limited to the fact that there was no known test for hepatitis C at that time (in approximately 1974), so that during those years it would be diagnosed as non-A non-B hepatitis. The Board does not have sufficient medical expertise to understand why the lack of a test for hepatitis C in 1974 renders it unlikely that the Veteran contracted hepatitis C as well as hepatitis B during active service. The May 2008 VA examiner indicated he had no VA records of treatment to review and that he had insufficient medical information to determine whether the Veteran experienced chronic hepatitis B from active service forward. Since that time the Veteran has received VA treatment and what appears to be specialized testing at VA for hepatitis C or residuals of hepatitis C. The Board does not have the medical expertise to determine whether these newly received records of treatment contain information such as laboratory results or the extent of the progression of his disease such as may be relevant to whether the Veteran experienced chronic hepatitis B or hepatitis C from active service forward. In consideration of the above, the Board finds that a clarifying medical opinion is required for adjudication of the Veteran's claims, with the opportunity for a VA clinician to review all newly received medical records and conduct any additional examination or laboratory testing as may be needed. See 38 U.S.C.A. § 5103A(d); Colvin v. Derwinski, 1 Vet. App. 171 (1991) (the Board is not competent to supplement the record with its own unsubstantiated medical conclusions as to whether the veteran had any disorder that was related to his period of active service, and if the medical evidence of record is insufficient, VA is always free to supplement the record by seeking an advisory opinion, or ordering a medical examination to support its ultimate conclusions). Also, the RO/AMC must seek a clarifying medical opinion from the private clinician who in May 2008 asked, apparently rhetorically, whether the Veteran could have had low level persistence of HBV infection from active service forward, in light unusual of in-service and post-service laboratory test results. See 38 U.S.C.A. 5103A(a)-(c). Additionally, any additional available relevant records of VA or private treatment must be obtained and made available for review by the VA examiner. See 38 U.S.C.A. 5103A(a)-(c). Accordingly, the case is REMANDED for the following action: 1. Request the Veteran to identify all available records of VA and non-VA health care providers who have treated his symptoms of hepatitis from the time of discharge from service in July 1974 through the present time. (a) After obtaining any appropriate authorizations for release of medical information, the RO must seek to obtain all relevant records that have not been previously obtained from each health care provider the Veteran identifies. (b) The records sought must include the records of the Veteran's treatment with Dr. Deak in 1975. See September 2009 RO hearing transcript, pages 5-7. (c) The records sought must include all relevant records of VA treatment from October 2009 forward, and all relevant records of private care from January 2007 forward. (d) The Veteran must also be advised that with respect to private medical evidence he may alternatively obtain the records on his own and submit them to the RO/AMC. 2. Seek to obtain a clarifying statement from the clinician who wrote as follows in May 2008: Acute Hepatitis Australian antigen positive at Camp Pendleton 1973=HBV. His HBcAv, total was "reactive" in 6/22/06 Quest Diagnostics Lab. Seems to indicate presence of HB infection in the past but anti- HBs Ab was (-)ve! Could he have had low level persistence of HBV infection all these years? The statement was sent to VA in May 2008 attached to letterhead of the Ohio Gastroenterology and Liver Institute, but the statement itself is undated and unsigned. 3. The RO/AMC, after waiting an appropriate time period for the Veteran to respond, shall seek a clarifying medical opinion by a VA physician with appropriate expertise; if possible this should be the same physician who conducted the May 2008 VA examination. The purpose of the opinion is to clarify the findings of the May 2008 VA examination report and to determine the relative likelihood that the Veteran has experienced hepatitis B or C that began during active service and lasted through the year 2006. The following considerations will govern the obtaining of this opinion: (a) The claims folder, including all medical records, and a copy of this remand, will be reviewed by the examiner. The examiner must acknowledge receipt and review of the claims folder, the medical records obtained, and a copy of this remand. (b) The examiner must indicate whether there are any additional examinations, tests or studies of the Veteran that would be helpful in providing the requested opinions. If so, all such examinations, tests or studies must be conducted. (c) The examiner must state whether the Veteran experienced exposure the hepatitis A virus at a remote but unknown time and whether he is now immune to hepatitis A. The examiner must provide a medical rationale (with citation to the relevant laboratory findings) for his or her determination. (d) The examiner must state whether the Board's lay reading of the evidence of record that the Veteran experienced hepatitis B during active service and that he may have experienced hepatitis B from the time of active service through at least 2006 is correct, and provide any further clarification for the RO/AMC and possibly the Board to interpret the medical evidence. (This is the Board's lay-interpretation of a May 2008 VA examination report and an undated, unsigned statement received from a private clinician in May 2008.) (i) If this is correct, the examiner must provide an opinion, in as precise terms as possible, as to the medical probability that the Veteran experienced hepatitis B from active service through at least 2006. (e) The examiner must provide more complete findings and rationale than exists in the May 2008 VA examination report as to the likelihood that the Veteran's hepatitis C began during active service or is related to any incident of service. In determining the relative likelihood that hepatitis C was contracted during or as a result of active service. (f) In all conclusions, the examiner must identify and explain the medical basis or bases, with identification of the evidence of record. (g) The examiner is requested to provide a complete rationale for his or her opinions, as a matter of medical probability, based on his or her clinical experience, medical expertise, and established medical principles. (h) If the examiner finds he or she cannot provide a requested finding without resort to pure speculation, he must provide a complete rationale for any such opinion. He must indicate whether his or her inability to provide such an opinion is a result of such factors as: i) an intractable lack of sufficient factual information, (ii) a lack of sufficient specialization or expertise on his or her part, or (iii) a lack of sufficient knowledge or information in the medical community at large under the current state of the art of medical care and research. 4. Readjudicate the issues on appeal. If any benefit sought remains denied, the Veteran and his representative must be provided a supplemental statement of the case and an appropriate period of time for response. Thereafter, subject to current appellate procedure, the case must be returned to the Board for further consideration, if otherwise in order. No action is required of the Veteran until he is otherwise notified by the RO/AMC. By this action, the Board intimates no opinion, legal or factual, as to any ultimate disposition warranted in this case. The Veteran has the right to submit additional evidence and argument on the matters 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 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ Vito A. Clementi 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).