Citation Nr: 1202611 Decision Date: 01/24/12 Archive Date: 02/07/12 DOCKET NO. 09-18 837A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for hepatitis C with hepatocellular carcinoma to include cirrhosis, ascites and upper gastrointestinal bleed. REPRESENTATION Appellant represented by: Rebecca Patrick, Attorney ATTORNEY FOR THE BOARD A. Spector, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1975 to August 1979. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from the February 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. Relevant to the Veteran's claim of entitlement to service connection for Hepatitis C, the Board observes that he originally filed his claim for service connection for such disorder in September 2006, and a November 2006 rating decision initially denied such claim. Subsequently, the Veteran submitted a statement in January 2007. Thereafter, the RO issued a rating decision in February 2007, considering the Veteran's statement. Following that rating decision, the Veteran submitted additional evidence, which was considered in a September 2007 rating decision. The Veteran again submitted additional evidence, which was considered in a February 2008 rating decision. As set forth in 38 C.F.R. § 3.156(b), when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. As the multiple forms of evidence submitted by the Veteran qualifies as new and material evidence, such must be considered as having been filed in connection with the Veteran's original claim and, therefore, the Board finds that the Veteran's claim of entitlement to service connection for Hepatitis C has been pending since VA received his original claim in September 2006. See Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); see also Muehl v. West, 13 Vet. App. 159, 161-62 (1999). Additionally, the Board notes that in a February 2008 rating decision, the RO confirmed and continued the denial of the Veteran's claim of service connection for Hepatitis C. In April 2008, the Veteran submitted a NOD. In August 2008, the RO issued a statement of the case (SOC) to the Veteran. The Veteran then filed a Substantive Appeal (VA Form 9) in June 2009, which was not timely. 38 C.F.R. § 3.103. However, after the Substantive Appeal was received, the RO then issued a Supplemental SOC (SSOC) in December 2009. The RO noted the June 2009 substantive appeal when issuing the SSOC for the issue of entitlement to service connection for Hepatitis C. Additionally, the RO certified such issue to the Board. Therefore, the Board finds that the VA took an action (namely, including the issue on the December 2009 SSOC and certifying it to the Board) that reasonably led the Veteran and his representative to believe that the issue was on appeal before the Board. See Percy v. Shinseki, 23 Vet. App. 37 (2009) (VA waived objection to untimeliness of substantive appeal by taking actions which led the Veteran to believe that an appeal had been perfected). Thus, the Board finds that this issue is properly before the Board and, as such, has been included on the first page of this decision. Furthermore, the Veteran initially requested a Travel Board hearing, which was scheduled for September 2, 2010. However, prior to the scheduled hearing date, the Veteran's representative submitted a written statement withdrawing that hearing request. 38 U.S.C.A. § 20.704(d) (2011). This matter was previously remanded by the Board for further development in October 2010. The Board finds the remand instructions were not in substantial compliance and this matter is returned to the Board for further consideration. See Stegall v. West, 11 Vet. App. 268 (1998). 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 Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. When the Board remanded this case in October 2010, it directed the RO/AMC to schedule the Veteran for a VA examination to obtain an opinion regarding the nature, extent, onset, and etiology of the Veteran's Hepatitis C. Additionally, the examiner was asked to review and discuss all of the Veteran's Hepatitis C risk factors. This opinion was to be supported by a complete and thorough rationale. Pursuant to the Board's remand, the Veteran was afforded a VA examination in February 2011 to assess his Hepatitis C condition. The VA examiner noted and discussed the history of the Veteran's Hepatitis C risk factors. However, the examiner failed to address all of the Veteran's Hepatitis C risk factors when rendering her opinion, to include in-service vaccinations, foot puncture from a nail, and dental work performed. See Stegall; see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (stating that once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Additionally, the examiner noted that she could not comment on dental work because no dental work was in the file. However, the Veteran's in-service dental records are in the file, and marked as so. In view of the foregoing, the Board finds that an addendum opinion is necessary in order to clarify whether it is at least as likely as not that the Veteran's hepatitis C had its onset during active service or is related to any in-service disease, event, or injury, to include the additional Hepatitis C factors that were not initially discussed by the VA examiner when rendering an opinion. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (When the medical evidence of record is insufficient, in the opinion of the Board, or of doubtful weight or credibility, the Board must supplement the record by seeking an advisory opinion, ordering a medical examination, or citing recognized medical treatises that clearly support its ultimate conclusions.). A Remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the Remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Where the Remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. Id. As such, the Board finds that this case is not ready for appellate review and must be remanded for compliance with the Remand instructions. Accordingly, the case is REMANDED for the following action: 1) The claims file should be returned to the VA examiner(s) who conducted the February 2011 VA examination (or, if unavailable, to another appropriate VA reviewer). In an addendum, the reviewer should indicate whether it is at least as likely as not that the Veteran's hepatitis C had its onset during active service or is related to any in-service disease, event, or injury. Specifically, in doing so, the examiner should consider and discuss the Veteran's additional risk factors: A. in-service vaccinations, to include air gun vaccinations; B. dental work performed in-service. Dental records are located in the file and are tabbed; C. foot puncture from a nail noted in the December 1977 service treatment records; D. "Tattooing a Major Route for Hepatitis C Infection", and the other Hepatitis C articles submitted by the Veteran, located in the claims file; E. Moreover, the examiner should specify whether the Veteran's hepatitis C is related to any in-service risk factors apart from drug use. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 2) Thereafter, the AMC/RO must review the claims file to ensure that the foregoing requested development has been completed. In particular, review the requested medical opinion to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 3) After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim should be readjudicated. If the claim remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, these issues should be returned to the Board for further appellate review. The appellant 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 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). _________________________________________________ J. A. MARKEY 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) (2011).