Citation Nr: 0814987 Decision Date: 05/06/08 Archive Date: 05/12/08 DOCKET NO. 04-28 918 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for Hepatitis C. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Smith, Associate Counsel INTRODUCTION The veteran served on active duty from March 1967 to October 1970. The veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from a December 2002 rating decision of the Department of Veterans Affairs' (VA) Regional Office (RO) in New Orleans, Louisiana, that denied the benefit sought on appeal. 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 development directed by the Board in its last remand was not accomplished. Where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). In February 2007 the Board remanded this matter for development, to include obtaining private treatment records from Butler Lewis, Slidell Memorial, and North Hill in accordance with the veteran's May 2006 hearing testimony. In February 2007 and July 2007 the RO sent a letter to the veteran asking him to complete release forms from these three providers, in addition to the Tulane Cancer Center. In August 2007 the veteran submitted signed VA Forms 21-4142 for Slidell Memorial Hospital and the Tulane Cancer Center, stating he has been treated for his Hepatitis C at these facilities. He additionally submitted a VA Form 21-4142 for Northshore Regional Medical Center for records pertaining to his Hepatitis C. He sent a separate letter stating he did not know who Butler Lewis or North Hill were. While the Board's remand of February 2007 sought records from Butler Lewis and North Hill, in light of the veteran's August 2007 statement that he does not know who these providers are, the Board finds no reason to continue pursuing these records. However, the RO took no action in response to the release form for Slidell Memorial Hospital, which was part of the Board's February 2007 remand, or the release forms for Northshore Regional Medical Center and the Tulane Cancer Center. 38 C.F.R. § 3.159(c)(1) defines reasonable efforts in obtaining records outside the custody of the federal government as "an initial request for the records, and, if the records are not received, at least one follow-up request." A review of the claims file reveals that these records may be critical to the veteran's claim for service connection for Hepatitis C if they offer any insight into the etiology or time of onset of the veteran's Hepatitis C. At present, the U.S. Army and Joint Services Records Research Center has been unable to either confirm or deny the veteran's contentions of the in-service incurrence of the disease, and a September 2007 VA examiner was unable to provide any guidance on which risk factor is the most likely etiology of the veteran's Hepatitis C. Accordingly, the case is REMANDED for the following action: 1. Contact the veteran and request that he provide any updated authorization forms that are necessary to allow the RO to obtain any private treatment records from the following sources as identified in the veteran's August 2007 VA Forms 21- 4142: a. Northshore Regional Medical Center b. Slidell Memorial Hospital c. Tulane Cancer Center Thereafter, the RO should attempt to obtain these records. Do not associate duplicate records with the file. If no records can be obtained after an exhaustive search, VA's efforts and any resolution determined must be fully documented for the record. 2. If records from the above-listed facilities are obtained, ask the VA examiner who provided the 2007 opinion to review the newly-received records and provide an addendum opinion addressing the question of whether it is "more likely than not" (meaning likelihood greater than 50 percent), "at least as likely as not" (meaning likelihood of at least 50 percent), or "less likely than not" or "unlikely" (meaning that there is a less than 50 percent likelihood) that hepatitis C was incurred in, was manifested in, or is etiologically related to the veteran's service or any incident thereof. If an examination is required by the reviewer, one should be scheduled. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 3. Thereafter, the claim on appeal should be readjudicated and the veteran should be notified of that adjudication. If any benefit requested on appeal is not granted to the veteran's satisfaction, the veteran and his representative should be furnished a supplemental statement of the case which addresses all of the evidence obtained. The veteran should be afforded an opportunity to respond. 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). _________________________________________________ MARJORIE A. AUER 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).