Citation Nr: 1146764 Decision Date: 12/22/11 Archive Date: 12/29/11 DOCKET NO. 03-34 569 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for hepatitis C. 2. Entitlement to service connection for a cervical and lumbar spine disability. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARINGS ON APPEAL The Veteran and her mother ATTORNEY FOR THE BOARD S. Heneks, Counsel INTRODUCTION The Veteran served on active duty from January 1984 to February 1984. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a February 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, which denied the benefits sought on appeal. In November 2004, the Veteran testified at a formal hearing before a hearing officer at the Indianapolis RO. In May 2008, the Veteran presented testimony at a hearing conducted by the use of video conferencing equipment at the Indianapolis RO before Kathleen K. Gallagher, a Veterans Law Judge (VLJ) sitting in Washington, D.C. Transcripts of these hearings are in the Veteran's claims folder. During the May 2008 hearing, the Veteran withdrew her claim for entitlement to service connection for post traumatic stress disorder (PTSD). Accordingly, this issue is no longer in appellate status. 38 C.F.R. § 20.204. In a July 2008 decision, the Board denied the claims. Subsequently, the Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (the Court) and in a December 2009 Memorandum Decision, the Court set aside the July 2008 decision and remanded the issues for readjudication. In January, March, and July 2011, the Board requested expert medical opinions on the issue of entitlement to service connection for hepatitis C from experts in the field of infectious diseases at VA Medical Centers (VAMCs). The Board finds that the VA opinions dated in February and August 2011 adequately address the questions posed in the requests. Given the foregoing, the Board finds that it has adequate information to address the claim for service connection for hepatitis C. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with). In her February 2009 informal brief to the Court, the Veteran stated that she should have appealed the appeal that she dropped, referring to the claim for service connection for PTSD. As noted above, the Veteran withdrew that claim during her May 2008 hearing. The Board will refer the Veteran's February 2009 statement to the RO for any further development. The issue of entitlement to service connection for a cervical and lumbar spine disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Hepatitis C has not been shown to be casually or etiologically related to service. CONCLUSION OF LAW Hepatitis C was not incurred in active service. 38 U.S.C.A. §§ 1131, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.303 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his/her representative, if applicable, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Further, in Dingess v. Nicholson, the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, VA is required to review the evidence presented with the claim and to provide the claimant with notice of what evidence not previously provided will help substantiate his/her claim. 19 Vet. App. 473 (2006); see also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Specifically, VA must notify the claimant of what is required to establish service connection and that a disability rating and effective date for the award of benefits will be assigned if service connection is awarded. The Board finds that the duty to notify was satisfied by letters sent to the Veteran in June 2004 and October 2006 with regard to the claim for hepatitis C. The June 2004 letter addressed all four notice elements and also contained information specific to substantiating a claim for hepatitis C. The October 2006 letter contained information about the disability rating and effect date provisions. Although the October 2006 letter was not sent prior to the initial adjudication of the claim in February 2003, this was not prejudicial since the claim was subsequently readjudicated in an August 2007 supplemental statement of the case (SSOC). Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (VA cured failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating claim and notifying claimant of such readjudication in the statement of the case). Therefore, the Board finds that VA has fulfilled its duty to notify under the VCAA with regard to the claim for hepatitis C. VA also has a duty to assist the Veteran in the development of a claim. This includes assisting the Veteran in procuring service treatment records and other relevant treatment records and providing a VA examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, VA obtained the Veteran's service treatment records and all relevant private treatment records properly identified by the Veteran. 38 C.F.R. § 3.159(c)(1). Additionally, her Social Security Administration (SSA) records were obtained in February 2007. VA opinions with respect to the claim for hepatitis C were obtained in February and August 2011. 38 C.F.R. § 3.159(c)(4). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As noted below, the Board finds that the VA opinions obtained in this case are adequate, as they are predicated on a reading of the service and post-service medical records in the Veteran's claims file. They considered all of the pertinent evidence of record, to include the Veteran's service and post-service records and the statements of the Veteran, and provide a complete rationale for the opinions stated, relying on and citing to the records reviewed. There is adequate medical evidence of record to make a determination in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the claim for hepatitis C has been met. 38 C.F.R. § 3.159(c)(4). VA has also assisted the Veteran and her representative throughout the course of this appeal by providing them with a November 2003 SOC (statement of the case) and SSOCs dated in June 2005, November 2005, February 2006, and August 2007 which informed them of the laws and regulations relevant to the claim for hepatitis C. For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. LAW AND ANALYSIS Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition 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 the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability benefits. In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify."). 1. Entitlement to service connection for hepatitis C. In considering all of the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for hepatitis C. The Veteran contended in her February 2002 claim that she contracted hepatitis C from contaminated in-service air gun vaccinations or dental procedures. The Board acknowledges that she had initial dental processing to include panorex and panorex screening in January 1984, was given vaccinations during service even though there is no documentation of such, and that she currently has hepatitis C. However, in order to establish service connection, there must be competent evidence establishing an etiological relationship between an injury in service and the current disability. After careful consideration, the Board concludes that this element is lacking and therefore the Veteran is not entitled to service connection for hepatitis C. The Veteran's service treatment records did not contain findings of hepatitis C. Additionally, the pre and post-service medical evidence is absent for an indication that the Veteran's hepatitis C is related to her service. In fact, the only evidence that the Veteran contracted hepatitis C from jet injectors or dental work during service was made by the Veteran during the course of the appeal. The evidence reflects that the Veteran had several risk factors for hepatitis C infection. As referenced in the June 2004 notice letter, the medical community recognizes several risk factors for hepatitis C infections including organ transplant, blood transfusions, or blood product receipt before 1992; hemodialysis; accidental exposure to blood by health care workers; intravenous drug use or intranasal cocaine use; high risk sexual activity; and other direct percutaneous exposure to blood such as tattooing or shared toothbrushes or shaving razors. In particular, the evidence indicates that the Veteran had blood transfusions before 1992, used IV drugs and cocaine, and had high risk sexual activity. In this regard, SSA records indicated that the Veteran was in a motor vehicle accident in May 1979 but it was not indicated if she had a transfusion. In a February 1987 psychiatric evaluation, it was noted that the Veteran had "many liaisons with other men, both single and married" and that she had indicated a former boyfriend suggested she should be tested for sexually transmitted diseases. In high school she began to use LSD, uppers, downers, and just about everything except narcotics but quit about age 19 except for a brief experimentation with speed and cocaine in the summer of 1986. The Veteran had surgery on her left hand in September 1987 but the record noted that she did not receive a blood transfusion. Another September 1987 record indicated that she reported IV drug abuse. A September to October 1987 psychiatric report reflected that she had a long history of abusing alcohol, marijuana, and other illegal drugs since high school. She reported being sober since 1987 and drug free since 1986. It should be noted that the Veteran has a history of treatment for psychiatric disabilities to include schizophrenia since 1986, and has been assessed as having visual hallucinations and being a poor historian. During an October 1999 psychological evaluation, the Veteran reported that she was diagnosed with hepatitis C in February 1999 and believed that she contracted it from her ex-husband. In a December 1999 record, the Veteran reported that she had a transfusion following a miscarriage in 1983 and after her hand surgery in 1987. Private treatment records from B.M.H. noted that in January 2000, the Veteran stated that she contracted hepatitis C from two surgeries where she received blood both times. One surgery was a D&C and the other was the aforementioned left hand surgery. In a February 2000 letter to Dr. D.F.L., it was noted that the Veteran apparently contracted hepatitis C through a blood transfusion approximately 18 years ago. The physician added that based on spider angioma, it was likely that the Veteran had hepatitis C for a period of eight to ten years or longer. The Veteran has not challenged the evidence that she used IV drugs, cocaine, and has had multiple sexual partners. The Board also finds it significant that there is no mention of exposure to hepatitis C from jet injectors or dental work in any of the treatment records, to include by the Veteran herself, until after she filed her claim in 2002. The Board does observe that the Veteran has retracted her earlier reports that she had a blood transfusion after her 1983 miscarriage. The Board acknowledges that medical evidence lacks documentation that the Veteran did receive a blood transfusion after her 1983 miscarriage/D&C procedure and that there was a record indicating that she did not have a transfusion after her 1987 hand surgery. As referenced above, the Veteran reported to two separate physicians in December 1999 and January 2000 that she had a blood transfusion after her D&C procedure. However, in her March 2003 notice of disagreement (NOD), the Veteran stated that she did not have a blood transfusion after her D&C procedure. She did not dispute that she received blood after cutting her hand. When directly asked by her representative during her November 2004 hearing if she had any blood transfusions, she replied that there was no hospital record of a blood transfusion. She did not say that she did not have transfusions. Further, the Veteran was also evasive when asked by her representative if she knew of any hepatitis C risk factors that she had before or after service. She replied, "We live in a high risk world, I don't know, I just know that those [jet injectors and dental work] were high risk and I was exposed." See November 2004 RO Hearing Transcript at 4. The Board concludes that the Veteran's earlier statements made to her physicians in 1999 and 2000 that she did have a blood transfusion are more credible than her statements made after she filed her claim that she did not have a blood transfusion. It is noteworthy that she reported these risk factors after her initial diagnosis of hepatitis C in 1999 but made no mention of her service, dental work, or jet injectors. Because these records were generated with a view towards ascertaining the Veteran's then-state of physical fitness, they are akin to statements of diagnosis and treatment and are of increased probative value. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); see also Lilly's: An Introduction to the Law of Evidence, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rationale that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). Moreover, as the Veteran did not start denying that she had a transfusion until after she filed her claim, the Board observes that self interest may play a role in the more recent statements. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (interest may affect the credibility of testimony); cf. Pond v. West, 12 Vet. App. 341, 346 (1999). The Board concludes that the contemporaneous evidence has greater probative value than the later history provided by the Veteran. See Curry v. Brown, 7 Vet. App. 59, 68 (1994). Thus, the Board concludes that the evidence indicating that the Veteran had the risk factors of IV drug use, cocaine use, transfusions, and multiple sexual partners is highly probative. Importantly, although the Board finds the Veteran's reports that she received inoculations via airguns and had dental work during service are competent. However, the Board does not concede and does not find her most recent reports that she observed blood dripping down other veterans' arms after receiving the inoculations to be credible. Further, the Board does not concede that the Veteran was exposed to blood during her dental procedures. The Board finds it significant that the Veteran has changed her reports of the circumstances surrounding her inoculations with the air gun. When she initially filed her claim, she did not mention seeing blood on others arms following the inoculations. After being asked by her representative during her November 2004 hearing if she noticed a lot of people with their arms bleeding or cuts from the air guns after the inoculations, the Veteran replied that yes, in fact there was. However, later in her testimony after being asked by her representative if there was an abnormal amount of blood splatter or if she saw blood on the equipment, she contradicted her earlier testimony and replied that she did not recall. She added that there was nothing unusual about the dental work she received and that the dental work was a filling, not extraction of a tooth or root canal. During her May 2008 Board hearing, the Veteran testified that she saw another veteran in front of her with blood dripping down her arm while in line for inoculations. She added, "and also, I don't recall, it's been a long time ago. I don't recall though them cleaning those air guns off between each veteran." The Board concludes that the Veteran's reports made approximately 20 years after her separation from service that she saw blood dripping down other veterans' arms after receiving inoculations are not credible. The Veteran contradicted herself during her November 2004 hearing and stated during both hearings that it had been a long time since service and that she did not recall when asked for more details about the circumstances of her inoculations. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (interest may affect the credibility of testimony); cf. Pond v. West, 12 Vet. App. 341, 346 (1999). Thus, the Board finds the lack of documentation of blood running down veterans' arms after receiving inoculations and the lack of self reports of blood from inoculations when the Veteran first filed her claim more credible than her recent reports that she saw such. With regard to her dental work, there is no indication that her dental work was unusual or that she was exposed to blood during her procedures. As referenced above, there is a January 1984 record noting that the Veteran had initial dental processing, panorex, and panorex screening. However, there was no record of any treatment or a filling. Section 15 on the form, restorations and treatments completed during service, did not contain notations of any fillings or dental work. See Curry v. Brown, 7 Vet. App. 59 (1994) (contemporaneous evidence can have greater probative value than inconsistent testimony provided by the claimant at a later date). The Veteran specifically testified that she did not recall her dental work being unusual. Thus, the Board will only concede that she had dental work, not that she was exposed to blood. Turning to the medical opinions of record, the December 2006 VA examiner noted that it was unclear how the Veteran contracted hepatitis C because there were no blood transfusions proven, she did not have tattoos, and she did not report intravenous drug use. The examiner noted that the Veteran received an air gun vaccine but that it was supposed to be a safe procedure. The diagnosis was active hepatitis C. The examiner concluded that it was less than a 50 percent probability that the Veteran's hepatitis C was a result of the vaccine in service. Because the December 2006 VA examiner did not provide a thorough rationale to support the opinion, the Board will not consider it. The Board obtained two VA medical opinions in February and August 2011. The February 2011 VA examiner is the division chief of infectious diseases at a VAMC. The examiner noted that the Veteran received vaccinations by airgun injection and that she had a dental examination with panorex screening and had a filling fixed. The examiner referenced the medical records which indicated a history of polysubstance abuse including cocaine, history of IV drug use, and that two separate physicians documented in their notes that the Veteran admitted to having multiple sexual partners. The examiner noted the December 1999 record wherein the Veteran reported having received blood transfusions in 1983 after a mischarge and her 1987 assault but stated that there was no documentation of any blood transfusions and that there were no records pertaining to the 1983 miscarriage. The examiner referred to the February 2000 record wherein the Veteran claimed to have received a blood transfusion 18 years earlier. The examiner stated that based on the physician's report that the Veteran had hepatitis C for at least 8-10 years as reflected by the spider angiomas, this would place her time of infection broadly before 1992. The examiner concluded that based on the records reviewed, there was no definitive way to determine when the Veteran was infected with hepatitis C; nor was there any evidence that the Veteran acquired hepatitis C during her service in 1984. The examiner stated that presently, there have been no documented cases of hepatitis C transmission by airgun injectors, though VA has described the risk as biologically plausible. The examiner cited to a VA study that found no association between hepatitis C infection and a history of airgun vaccination in veterans when adjusted for intravenous drug use. The examiner did not believe the dental examination the Veteran received during service would have put her at risk for hepatitis C. The most important epidemiological risk factors for acquiring hepatitis C include intravenous drug use, receiving blood transfusion prior to 1992, and multiple sexual partners. The examiner cited to another study which concluded that epidemiologic studies have also identified non injection drug use to be associated with hepatitis C infection, though this association likely reflects confounding with other high risk behaviors. The examiner noted that the Veteran repeatedly made the claim that she had a blood transfusion in the 1980s, though she noticed that some of the Veteran's claims were often not supported by her medical record. The examiner again stated that the Veteran's medical records also document a history of illegal drug use, including verbal admission to intravenous drug use, and multiple sexual partners. Therefore, the examiner opined that it was unlikely that the Veteran contracted hepatitis C from airgun injectors or dental work during her military service. The August 2011 VA opinion was obtained from a different chief of infectious diseases at a different VAMC. The examiner noted that independent review of all available medical records by the VA infectious diseases consultation service confirmed the statements made by the February 2011 VA examiner. The examiner referenced that it had been stipulated that the Veteran likely had vaccines via airguns and that she had dental procedures. The examiner also noted that the Veteran had several risk factors for hepatitis C including intravenous drug use, multiple sexual partners, and two blood transfusions in the 1980s prior to the first diagnosis in 1999. The examiner concluded that it was unlikely that the Veteran contracted hepatitis C from either airgun injections during vaccinations or dental work during her military service. The rationale was based on relative risk. The examiner continued that review of the medical literature reveals no evidence of documented hepatitis C virus transmission by airgun injectors. There is evidence of documented hepatitis B virus transmission by airgun injectors different from those devices previously used by the military. There was no evidence that could be found in the medical literature that Ped-o-Jet injectors used by the military have been associated with transmission of hepatitis C virus or any other blood borne pathogens. The examiner cited an article which concluded that it is approximately 10 times as likely that hepatitis B virus can be transmitted through a blood source when compared with hepatitis C virus transmission. Therefore, it is logical to conclude that approximately 10 times as much contaminated blood would have to be transferred from a virus-positive source to the Veteran to cause infection. This is likely the reason that there have been no cases reported of hepatitis C virus transmission by airgun injectors. The examiner noted that there was no documentation that the Veteran received any invasive dental work (work likely to be associated with blood contamination) during her military service. Therefore, it is impossible to conclude that there is any reasonable likelihood that the Veteran could have been infected at the time of her screening dental procedures. Since there is documentation in the medical record and previous reviews that the Veteran had other risk factors for hepatitis C virus infection, it must be concluded that the relative risk for acquiring hepatitis C virus infection from one of those factors is much greater than the risk of acquiring hepatitis C virus infection from either an airgun injector or a screening dental examination. The magnitude of the difference in these risk cannot be estimated with available information. However, it is concluded that it is likely that the Veteran acquired hepatitis C virus infection form one of those other risk factors and that it is unlikely that this infection was acquired from either an airgun injector or a dental screening evaluation done during military service. The Board finds these opinions highly probative. In this regard, both opinions were based on a complete review of the claims file and specifically referenced information that was most pertinent. Both opinions fully answered the question presented and provided a thorough rationale, citing to studies and utilizing their expertise as infectious disease specialists. Thus, the Board finds these opinions highly persuasive. In sum, none of the medical evidence indicates that the Veteran's hepatitis C is related to her in-service dental procedures or to her vaccinations. The Board acknowledges the June 2002 Vietnam Veterans of America newsletter which cited a study that concluded that jet injectors were capable of transmitting blood borne pathogens. However, the February 2011 VA examiner specifically referenced the study, noting that VA has described the risk as biologically plausible, but added that no study has found an association between hepatitis C infection and use of airgun vaccination in military veterans. The August 2011 VA examiner went on to distinguish the difference between hepatitis B and C transmission using airguns that the military used and specifically concluded that the relative risk from contracting hepatitis C from airguns was less than that from the Veteran's other risk factors. See Sacks v. West, 11 Vet. App. 314, 317 (1998) ("This is not to say that medical article and treatise evidence are irrelevant or unimportant; they can provide important support when combined with an opinion of a medical professional."). The Board notes that the Veteran is not competent to report that she contracted hepatitis C from in-service vaccinations and dental procedures because, she, as a layperson, is not qualified to render a medical opinion as to etiology or diagnosis. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). In deciding whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b). In this case, the Board finds that the preponderance of the evidence weighs against the Veteran's claim and therefore, the provisions of § 5107(b) are not applicable. Accordingly, entitlement to service connection for hepatitis C is denied. 38 C.F.R. § 3.303. ORDER Entitlement to service connection for hepatitis C is denied. REMAND 2. Entitlement to service connection for a cervical and lumbar spine disability. The Veteran testified during her May 2008 hearing that she was involved in a car accident prior to service in 1979 and injured her neck and back. She contended that wearing a back pack and carrying gear during service aggravated her pre-existing cervical spine and back problems. The Veteran testified that she had problems with her neck and back during service but only complained of her leg. The available pre-service medical evidence does not reflect that the Veteran had a neck or back disability prior to her entrance into service in 1984. The SSA records contain a May 1979 report which indicated that the Veteran had a back abrasion following a car accident but not a stiff neck. There were no findings of neck or back problems on her November 1983 entrance examination. As such the presumption of soundness applies. The service treatment records are absent for complaints of neck or back pain. The first post-service medical record of neck pain was in a March 1987 orthopedic report wherein the Veteran stated that her neck pain began following her automobile accidents in either 1979 or 1986. However, the examiner noted that the Veteran had not seen a physician since 1979 and was a poor historian. A September 1987 report noted that the Veteran had a cervical strain following a car accident in July 1987. Despite the lack of in-service complaints or evidence of a cervical or back disability, the Board observes that the Veteran is competent to report that her neck and back hurt during service and that she felt pain after wearing a back pack and carrying gear. The Veteran has not had a VA examination for this claim. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Board concludes an examination is needed because there is evidence that she has current cervical and back disabilities, that she experienced pain and carried a back pack during service, and insufficient evidence to decide the case. 38 C.F.R. § 3.159(c)(4)(i). The Board observes the Court's statement that the Veteran appeared to argue in her informal brief that VA failed to obtain medical records from Dr. D.N. However, the Board observes that the Veteran has repeatedly indicated that she does not know Dr. D.N.'s whereabouts. During her November 2004 hearing and in a March 2006 statement, the Veteran reported that she did not know where Dr. D.N. is or if he still practices. Accordingly, because the Veteran has been unable to provide an address for Dr. D.N. in order for VA to attempt to obtain any medical records, there is no duty to try to obtain them. 38 C.F.R. § 3.159(c)(1)(i). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to evaluate her claim for service connection for a cervical and lumbar spine disability. A copy of the claims folder and this REMAND must be made available to the examiner in conjunction with the examination. The examination report must include responses to the each of the following items: Based on a review of the claims folder and the examination findings, including the service treatment records, private treatment reports, and any additional treatment reports, the examiner should render any relevant diagnoses pertaining to the claim for a cervical and lumbar spine disability. Additionally, the examiner should state a medical opinion as to the likelihood (likely, unlikely, at least as likely as not) that any current cervical and lumbar spine disability is causally or etiologically related to her symptomatology in military service from January to February 1984 as opposed to its being more likely due to some other factor or factors. In particular, the examiner should indicate whether it is at least as likely as not that carrying a heavy backpack and gear during service caused any current cervical and lumbar spine disabilities. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2011), copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 2. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefit sought is not granted, the Veteran and her representative should be furnished a Supplemental Statement of the Case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or 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. 2010). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs