Citation Nr: 0812186 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 03-10 543 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: Darla J. Lilley, Esq. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Kelli A. Kordich, Counsel INTRODUCTION The veteran served on active duty from January 1969 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied the benefit sought on appeal. In September 2005, the veteran testified before the undersigned Veterans Law Judge of the Board, sitting in Montgomery, Alabama. The hearing transcript is of record. In February 2006, the Board remanded the appeal for further development to include a VA examination. In June 2007, the Board denied entitlement to service connection for hepatitis C. The veteran appealed that denial to the United States Court of Appeals for Veterans Claims (Court). In December 2007, the Court issued an order granting a joint motion to remand, vacating the June 2007 Board decision and remanding the matter to the Board. 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 The Joint Remand in December 2007, pointed out that despite the Board's determination that the April 2006 VA examination complied with its remand directives, the examiner did not answer the critical question posed in the February 2006 remand, i.e., whether it was at least as likely as not that the appellant's hepatitis C was related to active service, including the 1970 diagnosis of infectious hepatitis. It was also noted that the examiner failed to provide any explanation as to why he was unable to provide a nexus opinion without resorting to conjecture or speculation, as directed by the Board's remand. On remand, the Joint Motion instructed the Board to seek another opinion as to whether it was at least as likely as not that the appellant's hepatitis C is related to service, including the 1970 diagnosis of infectious hepatitis. This will also give Dr. Vankineni an opportunity to explain the basis for his endorsement in September 2005 of the prepared statement "If [the veteran] was diagnosed with infectious hepatitis and hospitalized [for seven weeks in 1970] and is now diagnosed with HVC [hepatitis C virus] then it is as least as likely as not that he was actually suffering from HCV in 1970." (Emphasis in original) Accordingly, the case is REMANDED for the following action: 1. Contact Dr. Vankineni, provide him with a copy of the one-page medical opinion document that he signed and dated September 22, 2005, and ask him to explain the basis for his opinion, including whether he examined the veteran or reviewed any of the veteran's medical records and, if so, which records. 2. Schedule the veteran for a VA compensation and pension examination by a medical doctor who is a gastroenterologist, infectious disease physician, or hepatologist. It is imperative that the claims file be made available to the examiner for review in connection with the examination. First, the examiner should determine what liver disease the veteran currently has, and if he has hepatitis, which type of hepatitis. The examiner should ensure that the diagnosis is based on appropriate tests, such as liver function testing and other serological testing. Then, for each current diagnosis, the examiner should opine whether the diagnosed current liver disorder is at least as likely as not (by a probability of 50 percent), more likely than not (by a probability higher than 50 percent), or less likely than not (by a probability less than 50 percent) related to active service, including the 1970 diagnosis of "infectious hepatitis." The opinions expressed should be supported by a discussion of pertinent history, such as any and all applicable risk factors. Possible risk factors include the veteran's reported foot surgery as a teenager before entering service, and back surgery in 1973 due to a job injury after discharge, and long-term intravenous drug use. If any etiology opinion or diagnosis cannot be given without resorting to conjecture or speculation, whether due to inconclusive clinical or laboratory findings or any other reason, the examiner should so state and explain why. Associate with the claims file the examination report and any diagnostic or laboratory test results. 3. Thereafter, review the entire claims folder and readjudicate the claim. If the decision remains unfavorable, then issue an updated Supplemental Statement of the Case and give the veteran and his counsel an appropriate opportunity to respond. Then, if in order, return the appeal to the Board. To help avoid future remand, the RO must ensure that all requested action has been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). Thereafter, the case should be returned to the Board for further appellate review, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the RO. 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. 2007). _________________________________________________ MARY GALLAGHER 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) (2007).