Citation Nr: 1222608 Decision Date: 06/28/12 Archive Date: 07/10/12 DOCKET NO. 95-32 722 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUES 1. Entitlement to service connection for hepatitis C. 2. Entitlement to an increased initial disability rating for coronary artery disease, evaluated as 10 percent disabling prior to October 27, 2010, and 30 percent disabling thereafter. REPRESENTATION Veteran represented by: Robert M. Kampfer, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD N. Kroes, Counsel INTRODUCTION The Veteran served on active duty from February 1968 to February 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 1995 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The case is currently under the jurisdiction of the RO in Fort Harrison, Montana. Of preliminary importance, the Veteran provided testimony before a Veterans Law Judge on the claim for service connection for hepatitis C in September 1996. In March 1997, the Board denied the claim. In June 1997, the Veteran filed a Motion for Reconsideration with the Board's March 1997 decision, which was denied in August 1997. The Veteran then appealed the Board's March 1997 decision to the United States Court of Appeals for Veterans Claims (Court). In July 1999, the Court affirmed the Board's denial of the claim. The Court's decision was affirmed by the United States Court of Appeals for the Federal Circuit (Federal Circuit) in September 2000. The Federal Circuit and the Court subsequently granted an Unopposed Motion for a Voluntary Remand filed by VA pursuant to the recently enacted Veterans Claims Assistance Act of 2000 (VCAA). In a December 2000 Court Order, the Board's March 1997 decision was vacated and the Veteran's claim for entitlement to service connection for hepatitis C was remanded to the Board. In August 2001 and January 2004, the Board remanded the claim to the RO for further evidentiary development. While this development was being completed, the Veteran was offered the opportunity for an additional hearing due to the retirement of the Veterans Law Judge who conducted his September 1996 hearing, which he accepted. The Veteran then testified before the undersigned in August 2009. Transcripts of both hearings have been associated with the claims file. In May 2010, the Board again denied the Veteran's claim for entitlement to service connection for hepatitis C. The Veteran appealed the decision to the Court. In a September 2011 Order, the Court vacated and remanded the Board's May 2010 decision and implemented the provisions of a September 2011 Joint Motion for Remand (JMR). The appeal is REMANDED to the VA RO. VA will notify the Veteran if further action is required. REMAND While further delay is regrettable, the Board observes that additional development is required prior to adjudicating the Veteran's appeal. Regarding the claim for service connection for hepatitis C, the Veteran attributes his current disability to a number of in-service events, namely: herbicide exposure, receiving "jet injector" immunizations, performing the duty of burning human waste, ingesting contaminated food and beverages, and handling dead bodies while serving in Vietnam. The record reflects that the Veteran served in Vietnam from February 1969 to January 1970. During his January 1971 separation examination, he reported being hospitalized for hepatitis for three days in September 1969. The parties to the JMR indicate that the name of the medical dispensary where the Veteran received this treatment is "clearly identified" in his service treatment records (STRs) as the Engineer Hill medical dispensary in Pleiku City, Vietnam. However, the sole reference to Engineer Hill in the STRs is in conjunction with treatment of an upper respiratory infection in February 1969. Moreover, the Veteran has asserted in numerous statements that this treatment took place at Firebase November. In May 2007, the RO requested that the National Personnel Records Center (NPRC) conduct a search for pertinent treatment records at Firebase November. (The JMR notes that a search for such records was "only conducted by the NPRC," and states that there was no attempt to contact the Joint Services Records Research Center (JSRRC) for any treatment records. The Board emphasizes that the JSRRC conducts posttraumatic stress disorder claims research. According to the JSSRC website, it is not a records repository and does not provide copies of records or general historical documents. https://www.rmda.army.mil/organization/jsrrc.shtml (accessed June 21, 2012). As such, contrary to the assertions of the parties, there is no reasonable possibility that the JSSRC would have the Veteran's treatment records, and the JSRRC need not be contacted as requested.) As noted by the parties to the JMR, the only dates searched were in November and December 1969, as opposed to September 1969, when the Veteran reported treatment for hepatitis. Regardless, the NPRC was unable to conduct the search without the name of the treatment facility. In this regard, the Veteran was specifically asked to identify the hospital where he was treated at Firebase November in September 2006. He responded in October 2007 that he did not know or possess this information. However, in light of the fact that the date range provided to the NPRC did not include the Veteran's reported month of treatment at Firebase November, as well as the documentation that confirms prior, albeit unrelated, treatment at the Engineer Hill medical dispensary, a new search for these records at both locations should be conducted after the Veteran is afforded an additional opportunity to identify the pertinent medical unit. Furthermore, during the August 2009 hearing, the Veteran testified that he was first diagnosed with hepatitis C via a blood test at the VA Medical Center (VAMC) in Jacksonville, Florida around 1971. Records of this diagnosis are not on file, and should be obtained on remand if available, along with updated outpatient records from the VA Montana Healthcare System dated from December 2008. See 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Moreover, if the additional development described above yields new records relevant to hepatitis infection or treatment during service, or additional risk factors not previously addressed in the VA examination reports of record, another VA medical opinion should be obtained. Finally, with respect to the claim for an increased initial rating for coronary artery disease, in October 2011, the Veteran expressed disagreement with ratings assigned in the September 2011 rating decision that awarded service connection for that disability. However, the Veteran has not yet been issued a statement of the case. Where a notice of disagreement has been filed with regard to an issue, and a statement of the case has not been issued, the appropriate Board action is to remand the issue for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. Issue a statement of the case on the issue of entitlement to an increased initial disability rating for coronary artery disease, evaluated as 10 percent disabling prior to October 27, 2010, and 30 percent disabling thereafter, and inform the Veteran of his appeal rights. 2. Contact the Veteran and afford him an additional opportunity to identify the hospital where he was treated for hepatitis in September 1969. 3. Utilizing any hospital information received from the Veteran, contact the NPRC to conduct a search for records reflecting treatment of the Veteran for hepatitis at Firebase November (north of Kontum, Vietnam) and the Engineer Hill medical dispensary (Pleiku, Vietnam) from February 1969 through January 1970. The NPRC should be informed that the Veteran was assigned to the 102nd Engineering Company at that time. The results of such request, whether successful or unsuccessful, should be documented in the claims folder, and the Veteran informed of any negative results. 4. Obtain relevant treatment records from: (a) the Gainesville, Florida VA Medical Center (including the outpatient clinic in Jacksonville, Florida) dated from 1971 to 1972; and (b) the VA Montana Healthcare System dated from December 2008 to the present. If these records are no longer on file, a request should be made to the appropriate storage facility. All efforts to obtain VA records should be fully documented. If unavailable, the VA facilities must provide a negative response and the RO should notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 5. If and only if the action in items 3 and 4 above yields new records relevant to hepatitis infection or treatment during service, or additional hepatitis risk factors not previously addressed in the VA examination reports of record, the Veteran's claims folder should be forwarded to a VA examiner for a medical nexus opinion. The examiner must review the claims folder and note that review in the report of examination. The examiner should express an opinion regarding the likely etiology of hepatitis C, and specifically whether hepatitis is at least as likely as not (a 50% or greater probability) causally related to in service treatment for hepatitis, or is otherwise causally related to service. 6. Then, readjudicate the Veteran's claim of entitlement to service connection for hepatitis C. If any action remains adverse to the Veteran, issue a supplemental statement of the case and allow an appropriate opportunity for response. Thereafter, return the case to the Board, if otherwise in order. 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). _________________________________________________ Sonnet Gorham Acting 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).