Citation Nr: 1206456 Decision Date: 02/22/12 Archive Date: 03/01/12 DOCKET NO. 07-102 62A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for Hepatitis C. 2. Entitlement to service connection for infertility, claimed as sexual dysfunction. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Spector, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1969 to February 1971. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a May 2005 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran filed a notice of disagreement (NOD) with this determination in January 2006, and timely perfected his appeal in April 2007. The Veteran initially requested a Travel Board Hearing. However, the Veteran later submitted a statement in August 2011 requesting to cancel the request for a Travel Board Hearing. 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 A review of the record discloses that further development is necessary prior to the adjudication of the Veteran's claims of service connection for Hepatitis C and infertility. The Veteran contends that while stationed in Korea, he contracted syphilis, but was misdiagnosed and treated as gonorrhea. Additionally, he reported that months later he was told at Ft. Meade that he had syphilis, which had resulted in his sexual dysfunction. He stated that the physician at Ft. Meade also informed him that he had contracted hepatitis C as well. Moreover, the Veteran stated that he spent four weeks in Kimbrough Ambulatory Care Center. While the claims file contains the Veteran's entrance and separation examinations, it appears that a complete copy of the Veteran's service treatment records are missing. The file contains service treatment records that show he was treated for gonorrhea on more than one occasion, however, medical records for treatment at Ft. Meade and Kimbrough Ambulatory Care Center are absent from the record. It is not clear if the RO has exhausted all efforts to obtain these records, as the RO did not make a formal finding on the unavailability of the Veteran's service treatment records. As such, further efforts to obtain a complete copy of the Veteran's service treatment records should be undertaken before the Board renders a decision in this case. Additionally, a remand is also necessary to obtain outstanding VA medical records. The record reflects that the Veteran was receiving periodic treatment at the VA through March 2006. However, the November 2009 Supplemental Statement of the Case discusses VA treatment records through July 2009. Because it appears that there are outstanding VA medical records dated after March 2006 that may contain information pertinent to his claims, those records are relevant and should be obtained. 38 C.F.R. § 3.159(c)(2) (2011); Bell v. Derwinski, 2 Vet. App. 611 (1992). Additionally, the Veteran should be contacted to provide any additional treatment records in his possession or authorize VA to obtain those records on his behalf. Furthermore, the evidence indicates that the Veteran has is a Hepatitis C carrier. Risk factors for hepatitis C include intravenous (IV) drug use, blood transfusions before 1992, hemodialysis, intranasal cocaine, high-risk sexual activity, accidental exposure while a health care worker, and various kinds of percutaneous exposure such as tattoos, body piercing, acupuncture with non-sterile needles, shared toothbrushes or razor blades. VBA letter 211B (98-110) November 30, 1998. While mindful that intranasal cocaine and intravenous drug use are risk factors for hepatitis C, the Board observes that service connection cannot be established for a disability which results from willful misconduct or the primary abuse of alcohol or drugs. 38 U.S.C.A. § 105(a), 1131 (West 2002); Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). Willful misconduct is defined as an act involving conscious wrongdoing or a known prohibited action, and alcohol and drug abuse are, by statute, deemed to be willful misconduct. Libertine v. Brown, 9 Vet. App. 521 (1996); 38 C.F.R. §§ 3.1(n), 3.301 (2011). For that reason, a grant of service connection is precluded for any abuse of alcohol or drugs during service, and for any disorder, including hepatitis C, which is due to the abuse of alcohol or drugs. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.326(a) (2011). VA's duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Although the Veteran has provided competent reports of continuity of symptomatology and that he is being treated for hepatitis C and infertility, VA has neither afforded the Veteran an examination nor solicited a medical opinion as to the onset and/or etiology of these disabilities. Although the Veteran has been seeking treatment from the VA for these conditions, it remains unclear to the Board whether the Veteran has a current infertility disability or hepatitis C, and if so, whether they are related to his active service. A medical opinion regarding the etiology of the Veteran's hepatitis C and infertility is therefore necessary to make a determination in this case. See 38 U.S.C.A. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1) The AMC/RO should obtain any available outstanding VA treatment records dated from March 2006 to the present. Any attempts to obtain these records and responses received thereafter should be associated with the Veteran's VA claims file. The Veteran should also be offered the opportunity to submit any private treatment records in support of his claim. 2) Contact the National Personnel Records Center, and/or any other appropriate agency, and request copies of the Veteran's complete service treatment records, to include records from Ft. Meade and Kimbrough Ambulatory Care Center. If these records are not available, a negative reply must be provided. Additionally, if a negative reply is received, the Veteran must be notified and given the opportunity to submit those records. 3) After the foregoing development has been performed, the AMC should arrange for the Veteran to undergo an appropriate VA examination for hepatitis C and infertility. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. All necessary tests should be conducted. The examiner is requested to provide an opinion as to the diagnosis, date of onset, and etiology of any infertility disability or Hepatitis C found to be present. The examiner should provide an opinion as to 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. In doing so, the examiner should consider and discuss the Veteran's various risk factors. Specifically, the examiner should discuss the Veteran's service treatment records that noted diagnoses of gonorrhea. The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran's infertility had its onset during active service or is related to any in-service disease, event, or injury. Specifically, the examiner should discuss the Veteran's service treatment records that noted diagnoses of gonorrhea. Additionally, the examiner should discuss the Veteran's statements that stated he was told at Ft. Meade that he was misdiagnosed with gonorrhea and had syphilis, which resulted in his sexual dysfunction. Additionally, the examiner should review and discuss the Veteran's service treatment records, VA treatment records, the Veteran's lay statements, and any other relevant information. 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. 4) 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 opinions 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). 5) 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 claims should be readjudicated. If a claim remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After he has had an adequate opportunity to respond, these issues should be returned to the Board for further appellate review. 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). These claims 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. 2011). _________________________________________________ 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).