Citation Nr: 1001063 Decision Date: 01/07/10 Archive Date: 01/15/10 DOCKET NO. 09-08 084 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for hepatitis C. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Patner, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1973 to May 1976. This matter comes before the Board of Veterans' Appeals (Board) from a June 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for hepatitis C. In August 2009, the Veteran testified before the Board at a hearing held at the RO in Indianapolis, Indiana. The appeal is REMANDED to the RO via the Appeals Management Center, in Washington, D.C. REMAND Additional development is necessary prior to further disposition of the claim. The Veteran contends that he contracted hepatitis C while in service. At his August 2009 hearing, he stated that he had engaged in intravenous drug use and unprotected sexual relations while in service. He stated that shortly after separating from service, he was deemed unfit to donate plasma because he had gonorrhea. However, after being treated at Bell Flower Hospital, it was determined that he did not have gonorrhea, and his condition was unknown. Then, in 1993, he was diagnosed with hepatitis C, and began taking medication. Service medical records reflect that in February 1975, the Veteran tested positive for amphetamines, though he denied drug use. Private treatment records dated from July 2003 to September 2007 reflect a diagnosis of clinically mild chronic active hepatitis C, and medication for control of the disease. The Veteran's service medical records are negative for a diagnosis of hepatitis C. Although the Veteran asserts that his hepatitis C is most likely related to his drug use in service, as a layperson, he is not competent to give a medical opinion on causation or aggravation of a medical condition. Bostain v. West, 11 Vet. App. 124 (1998); Routen v. Brown, 10 Vet. App. 183 (1997); Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (layperson is generally not capable of opining on matters requiring medical knowledge). Because a VA examiner has not yet opined as to the likely etiology of the Veteran's hepatitis C, or the approximate date of onset, the Board finds that an etiological opinion is necessary in order to fairly decide the merits of the Veteran's claim. Next, it appears as though private treatment records are outstanding. The Veteran contends that shortly after separating from service he received treatment for an illness that was later diagnosed as hepatitis C at Bell Flower Hospital. As these records are pertinent to the Veteran's claim, because they evidence treatment shortly after separation from service, they should be obtained. 38 C.F.R. § 3.159(c)(2) (2009); Bell v. Derwinski, 2 Vet. App. 611 (1992). Additionally, the Veteran has stated that he received treatment for his hepatitis C beginning in 1993 by Dr. David Bash. However, records from Dr. Bash are dated only from July 2003 to September 2007. Therefore, the records dated from 1993 to 2003 should be obtained. Accordingly, the case is REMANDED for the following action: 1. After obtaining the necessary authorization from the Veteran, attempt to obtain and associate with the claims file private medical records from Bell Flower Hospital dated from 1976 to 1993. All attempts to secure those records must be documented in the claims folder. 2. After obtaining the necessary authorization from the Veteran, attempt to obtain and associate with the claims file private medical records from Dr. David Bash dated from 1993 to 2003. All attempts to secure those records must be documented in the claims folder. 3. Request a medical opinion as to the approximate date of onset of the Veteran's hepatitis C and the manner in which he likely contracted the virus. The claims folder must be made available to and be reviewed by the medical professional providing the opinion for review in conjunction with rendering the opinion. Based upon that review, the examiner should provide an opinion as to whether it is as likely as not (50 percent probability or greater) that any currently diagnosed hepatitis C is etiologically related to the Veteran's active military service. Any opinions expressed by the examiner must be accompanied by a complete rationale. 4. Then, readjudicate the Veteran's claim. If any action remains adverse to the Veteran, provide the Veteran with a supplemental statement of the case and allow an appropriate opportunity to respond. Thereafter, the case should be returned to the Board. 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ Harvey P. Roberts 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) (2009).