Citation Nr: 1433658 Decision Date: 07/28/14 Archive Date: 08/04/14 DOCKET NO. 06-39 091 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a waiver of an overpayment of VA compensation benefits in the amount of $12,089.30. 2. Entitlement to service connection for hepatitis C. REPRESENTATION Veteran represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Jennifer R. White, Counsel INTRODUCTION The Veteran had active service from April 1967 to April 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2006 and June 2007 decisions of the Department of Veterans Affairs (VA), Regional Office (RO), in Waco, Texas. The issue of entitlement to a waiver of overpayment was previously before the Board in November 2008 at which time it was remanded for additional development. During the pendency of that appeal, in June 2008, the Veteran perfected an appeal as to the issue of service connection for hepatitis C. Both issues are now currently before the Board. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that an Informal Hearing Presentation has been submitted on behalf of the Veteran by his representative. This has been considered by the Board in adjudicating this matter. The remaining documents in the Virtual VA paperless claims file are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The appeal is REMANDED to the agency of original jurisdiction. VA will notify you if further action is required on your part. REMAND Unfortunately, a 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 claims so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(c), (d) (2013). In Disabled American Veterans, et al. v. Secretary of Veterans Affairs, 327 F.3d 1339, (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) determined that it was impermissible for the Board to consider additional evidence without having to remand the case to the agency of original jurisdiction for initial consideration and without having to obtain the appellant's waiver. The November 2006 Statement of the Case was the last time the agency of original jurisdiction made a determination concerning the Veteran's entitlement to waiver of the instant overpayment. The November 2008 Remand indicated that the Veteran's claim was being remanded so that a Supplemental Statement of the Case concerning additional evidence associated with the claims file since November 2006 may be provided to the Veteran. Very unfortunately, no additional Supplemental Statement of the Case has been issued concerning the issue of the waiver of overpayment. Thus, the claim must be remanded once again for further adjudication. See Stegall v. West, 11 Vet. App. 268 (1998). Additionally, in a January 2007 statement, the Veteran asserted that his hepatitis C, diagnosed in approximately 1998, was due to either to jet injections or inoculations in service, blood through combat, sharing razors, or other personal items. The Veteran was afforded a VA examination to consider his contentions in April 2007. Unfortunately, the examiner did not have the Veteran's claims file available for review. Thus, the agency of original jurisdiction must obtain an additional opinion concerning the etiology of the Veteran's hepatitis C. In a January 2008 letter, the Veteran indicated that he had not received a January 2007 notice letter concerning his claim of service connection for hepatitis C. Additional notice with a risk factor questionnaire for hepatitis C must be provided on remand. The Board additionally notes that the Veteran was requested to submit a privacy release in order to obtain his medical records while incarcerated. To date, this information has not been received by the Veteran. He should be given an additional opportunity to complete any relevant privacy release on remand. Any outstanding VA treatment records, not already associated with the claims file, to include ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA treatment records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. The agency of original jurisdiction shall send the Veteran appropriate notice consistent with the Veterans Claims Assistance Act of 2000 (VCAA) concerning establishing service connection for hepatitis C, as well as, a risk factors for hepatitis C questionnaire to complete and return in furtherance of his claim. 2. The agency of original jurisdiction shall request the Veteran to provide identifying information concerning any health care facilities where he received treatment or underwent evaluation for the disability at issue, to include any medical records while the Veteran was incarcerated. It should then undertake any additional indicated development to obtain any pertinent, outstanding evidence, to include contacting any identified health care facilities. The agency of original jurisdiction must continue its efforts to obtain any pertinent, outstanding service medical records unless additional efforts would be futile. 3. The agency of original jurisdiction shall ask the Veteran to identify all locations of VA treatment or evaluation for his asserted disability and contact each VA medical facility identified by the Veteran to obtain ongoing medical treatment records pertaining thereto. All records obtained must be associated with the Veteran's claims file. 4. The agency of original jurisdiction shall make arrangements with the appropriate VA medical facility for the Veteran's claims file to be reviewed and an opinion provided regarding the etiology of the Veteran's hepatitis C. If deemed necessary, the examiner may require an in-person examination of the Veteran. Specifically, following review of the claims file, and upon consideration of sound medical principles, the physician should provide an opinion as to whether it is at least as likely as not that the Veteran's hepatitis C is the result of in-service versus post-service risk factors. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. The absence of evidence of treatment for hepatitis C in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. The examiner must provide a rationale for each opinion given. 5. The agency of original jurisdiction will then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claims adjudication. 6. The agency of original jurisdiction shall readjudicate the claim concerning the waiver of overpayment in light of all evidence added to the record since November 2006, as well as, the claim of service connection for hepatitis C. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until he is so informed. He 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). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. 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. 2013). ______________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs