Citation Nr: 1431781 Decision Date: 07/15/14 Archive Date: 07/22/14 DOCKET NO. 14-00 617 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Adams, Counsel INTRODUCTION The Veteran had active duty from August 1963 to August 1966. This matter is on appeal from a September 2012 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. This matter was most recently Remanded by the Board in February 2014 so that a Travel Board hearing could be scheduled. In June 2014, the Veteran testified during a Travel Board hearing before the undersigned Veterans Law Judge. A transcript is of record. The Board has considered that the RO previously denied a compensation claim under 38 U.S.C.A. § 1151 for hepatitis C in an August 2002 rating decision. The analysis was limited to whether the Veteran should be entitled to compensation under 38 U.S.C.A. § 1151. As such, the Board finds that consideration of whether new and material evidence has been submitted with respect to the current claim for a hepatitis C is not necessary. Rather, a new decision on the merits is required. Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996) (A claim based on a new diagnosis is a new claim, and is adjudicated without regard to prior denials that did not consider that diagnosis); cf. Velez v. Shinseki, 23 Vet. App. 199 (2009) (in determining whether new and material evidence is required, the focus of the Board's analysis must be on whether the evidence presented truly amounts to a new claim based upon distinctly diagnosed diseases or injuries). Here the claim is based on an entirely different theory of entitlement; rather than being related to a particular post-service VA medical treatment, the Veteran asserts that his hepatitis C is related to service. As such, the claim for hepatitis C has been properly characterized on the title page of this decision. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran contends that he has hepatitis C that is related to vaccinations through jet injector inoculations or air guns during his service. He cites to several articles that suggested a positive relationship between air guns and hepatitis C. He states that he did not have any other risk factors associated with contracting hepatitis C, such as high-risk sexual activity or intravenous drugs use. Accordingly, the Veteran should be afforded an examination which considers a complete review of the claims file (including the Veteran's outstanding VA treatment records which have been requested herein) to determine the nature and etiology of the Veteran's hepatitis C. See 38 C.F.R. § 3.159. Accordingly, the case is REMANDED for the following actions: 1. Obtain copies of the Veteran's treatment records from the Columbia VA Medical Center since April 2012. If the records are not available, or if the search yielded a negative result, that fact should be clearly documented on the Veteran's electronic claims file and/or paper claims file and the Veteran notified of the efforts made to obtain such records. 2. On completion of the above, schedule an appropriate VA examination, to address the nature and etiology of the Veteran's hepatitis C or chronic residuals related thereto. All indicated studies should be performed. The claims folder should be provided to the examiner for review of pertinent documents. The examination report should reflect that such a review was conducted. After the foregoing has been completed, please provide an opinion on the following: Is it at least as likely as not (50 percent or more probability) that the diagnosed hepatitis C or residuals thereof, as identified above, had its onset in or is etiologically-related to the Veteran's active duty service? The examiner should specifically consider and discuss the Veteran's contentions (including those set out in the most recent Brief of Appellant), regarding the Veteran's reported risk factors in-service (jet injector inoculations). Discussion of the articles submitted by the Veteran would be helpful. Other evidence in the record such as the June 2014 hearing transcript, records from the Social Security Administration, and his VA medical records must also be considered. The reviewer should also consider other identified major risk factors for the hepatitis C virus. See VBA Training Letter 211A (01-02) (April 17, 2001); VBA Fast Letter 04-13 (June 29, 2004). Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. Thereafter, the issue on appeal should be readjudicated. If the benefits sought on appeal are not granted to the Veteran's satisfaction, he and his representative should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate opportunity to respond thereto. The SSOC should contain, among other things, a summary and discussion of the relevant evidence received since the SOC was issued in October 2013. The case should then be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the ultimate outcome of the case. 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. 2013). _________________________________________________ MICHAEL A. HERMAN 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) (2013).