Citation Nr: 1007252 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 05-17 719 ) 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: Virginia Girard-Brady, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The Veteran had active military service from March 1972 to February 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In December 2007, the Board reopened the Veteran's claim for service connection for hepatitis C, but then denied the claim on a de novo basis. By way of a December 2008 Joint Motion for Remand, and December 2008 United States Court of Appeals for Veterans Claims (Court) order, the Veteran's claim for service connection for hepatitis C was remanded for the Board to provide an adequate statement of reasons and bases regarding whether VA was required to provide a medical examination or medical nexus opinion in this case. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The Veteran has alleged that his currently diagnosed hepatitis C is the result of inoculations using an air gun that had been used to inoculate other soldiers before him. In an August 2004 statement the Veteran also raised the possibility of his hepatitis C resulting from sexual contacts during his naval service when he was in Vietnam and at Subic Bay, Philippines. The Veteran is currently diagnosed with hepatitis C, with the earliest diagnosis rendered in 1998. The question at hand is whether his currently diagnosed hepatitis C is traceable to his period of active duty service; in particular, to an alleged in-service inoculation with an air gun or to sexual activity. In this regard, the Board notes that the Veteran is competent to report incidents that occurred during military service. Although the service treatment records do not document whether the Veteran received inoculations via air gun they do verify a number of in-service inoculations. Here, because the Veteran asserts that he was exposed to the hepatitis C virus when he was inoculated with an air gun during his time on active duty, and the Veteran is competent to relay an in-service experience which is uncontradicted by the evidence of record, the Board finds that a medical opinion is necessary to address the medical probabilities that the Veteran contracted hepatitis C as a result of this inoculation, or as a result of any other in-service risk factor. The Board notes that an August 1978 letter in the claims file indicates that the Veteran was incarcerated at the Draper Correctional Facility in Elmore, Alabama. This has not been discussed by the RO in adjudicating the Veteran's claim and should be considered when the Veteran is provided a medical examination. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded a VA hepatitis C examination. Based on a physical examination and comprehensive review of the claims file, the examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that his current hepatitis C is directly related to the Veteran's period of active military service from March 1972 to February 1973. In making this determination, the examiner should discuss the etiology and the onset of the disease. A history of all of the Veteran's potential risk factors of hepatitis C exposure should be detailed in full. The examiner should list and discuss all documented risk factors and all risk factors described by the Veteran, including inoculations and sexual contacts. The examiner should also discuss all post service actions that could result in the possibility of contacting hepatitis C including the Veteran's prison incarceration in 1978. Rationale for all opinions should be provided. If the Veteran does not report for the examination, the examiner should review the Veteran's claims file and provide the requested opinion based on the evidence contained in the claims file. 2. Upon completion of the above requested development reconsider the Veteran's claims. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided a supplemental statement of the case on all issues in appellate status and be afforded the appropriate opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter 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. 2009). _________________________________________________ James L. March 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).