Citation Nr: 0100086 Decision Date: 01/03/01 Archive Date: 01/11/01 DOCKET NO. 99-18 445 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for hepatitis C. ATTORNEY FOR THE BOARD Howard M. Scott, Associate Counsel INTRODUCTION The veteran had active service from June 1967 to June 1970, and from August 1970 to September 1990. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an April 1999 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas, which denied the veteran's claim on appeal. The veteran appealed that decision to the BVA and the case was referred to the Board for appellate review. REMAND According to the record, the veteran first tested positive for hepatitis C in July 1994. The veteran has submitted a statement from a private physician, Robert Rudolphi, M.D., dated in July 1999, who treated him for approximately three to four years. Dr. Rudolphi opined that "there appears to be substantial evidence that [the veteran's] hepatitis C viral infection was contracted while on active duty." As a basis for that statement, Dr. Rudolphi referenced several incidents in which the veteran reported that he had been accidentally stuck with needles during service. The Board notes that the veteran's service medical records make no mention of the veteran being stuck by needles. Moreover, it does not appear that Dr. Rudolphi had the benefit of reviewing the veteran's medical records or his claims file when he offered his opinion in July 1999. The Board notes that during the pendency of this appeal, effective November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000). Among other things, this law eliminates the concept of a well-grounded claim, and heightens the obligations of the VA with respect to the duty to assist. In light of the amended law, which is more favorable to the veteran than the prior law, the Board finds that additional development must be completed in this appeal, before the Board may proceed with appellate disposition. See Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991)(when a law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version more favorable to the veteran will apply). According to the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000), "[t]he Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit under a law administered by the Secretary." Pub. L. No. 106-475, § 5103A(a). In the case of a claim for disability compensation, the duty to assist includes providing a medical examination or obtaining a medical opinion. Pub. L. No. 106-475, § 5103A(d)(1). Such an examination is necessary if there is competent medical evidence of a current disability, evidence that the disability may be associated with the claimant's active duty, but the record does not contain sufficient medical evidence for the Secretary to make a decision on the claim. Pub. L. No. 106-475, § 5103A(d)(2). The Board does not find that the current record satisfies the heightened duty to assist law, set forth in the Veterans Claims Assistance Act of 2000. In particular, the Board finds that the veteran should be afforded a VA medical examination to ascertain whether it is at least as likely as not, that any current hepatitis C is related to an incident of the veteran's active military service. Accordingly, this case is REMANDED for the following: 1. The veteran should be afforded a VA examination by an appropriate specialist to determine the nature and etiology of any liver disorder, including hepatitis C, that may be present. The claims folder should be made available to the examiner for review before the examination. The examiner is specifically requested to examine the opinion of record by Dr. Rudolphi. Based on the medical evidence in the claims folder, the examiner is requested to comment on whether it is at least as likely as not that any current liver disorder, to include hepatitis C, is causally related to an incident of the veteran's period of active military service. The examiner should provide a complete rationale for any opinion offered. 2. The RO must review the claims file and ensure that all notification and development action required by the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475 is completed. 3. After completion of the foregoing, the RO should readjudicate the veteran's claim based on the expanded record. If the benefit sought on appeal remains denied, the appellant and the appellant's representative, if any, should be provided with a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The purpose of this REMAND is to comply with the Veterans Claims Assistance Act of 2000, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The veteran is free to submit any additional evidence he desires to have considered in connection with his current appeal. No further action is required of the veteran until he is notified. L. M. HELINSKI Acting Veterans Law Judge Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), 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) (2000).