Citation Nr: 1044019 Decision Date: 11/23/10 Archive Date: 12/01/10 DOCKET NO. 07-06 265 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD M. Vavrina, Counsel INTRODUCTION The Veteran served on active duty from October 1967 to April 1970, including service in the Republic of Vietnam from April 8, 1968 to April 21, 1969 and from January 31, 1970 to March 8, 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal of a May 2005 rating decision, denying the Veteran's claim. He perfected an appeal to the denial. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action, on his part, is required. REMAND The Board's review of the claims file reveals that additional action is warranted on the claim on appeal. Here, the Board's review reveals that there are possible outstanding VA and Vet Center medical records that may bear on the Veteran's claim. The most recent VA treatment record from the Upstate New York VA Healthcare System is dated July 28, 2008, while the most recent Rochester Vet Center treatment record is dated April 7, 2008. The Board emphasizes that records generated by VA facilities and Vet Centers that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, on remand, VA should obtain all outstanding pertinent VA and Vet Center medical records. Similarly, when VA is put on notice of the existence of private medical records, VA must attempt to obtain those records before proceeding with the appeal. See Lind v. Principi, 3 Vet. App. 493, 494 (1992); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). A November 1970 VA hospital discharge report reflects that the Veteran was admitted on August 13, 1970 as a transfer from Strong Memorial Hospital where he had been given emergency treatment for 5 1/2 days following a suicide attempt. More recent VA treatment records show that the Veteran was referred to the digestive disease clinic at Strong Memorial Hospital following a diagnosis of hepatitis C in 2004. A May 2005 Strong Memorial Hospital record reveals that a follow-up with the Veteran would be done in several weeks. On remand, the Veteran should be asked to sign authorization for release of medical records from Strong Memorial Hospital. A July 2003 Rochester Vet Center record reflects that the Veteran was trying to get Social Security Administration (SSA) disability benefits. There is no evidence of VA having made efforts to obtain these records. SSA records must be obtained before a decision on the claim can be made. See Murincsak, supra. Risk factors for hepatitis C include: organ transplant before 1992, transfusions of blood or blood products before 1992, hemodialysis, accidental exposure to blood by healthcare workers (to include combat medic or corpsman), intravenous (IV) drug use or intranasal cocaine use, high-risk sexual activity, and other direct percutaneous (through the skin) exposure to blood such as by tattooing, body piercing, acupuncture with non-sterile needles, and shared toothbrushes or shaving razors. The evidence of record reveals that the Veteran has tattoos, though it is unclear when he received them; and that he has been treated on several occasions for drug abuse, when and what kind of drug use has not been clarified. Moreover, a June 25, 1976 VA treatment record reflects a history that he was first married in 1968 to a "Chinese-Thai" woman while on R&R leave in Thailand and that he lived with her for one week and that he was married to his second wife in May 1969 and lived with her until separation in August 1970 and that while he was in the Marines this wife was raped by a black Marine at Quantico. The Veteran also claims that another man bit him and that, during combat in Vietnam, he was exposed to blood as a result of moving dead bodies. Finally, the Veteran contends that the type of hepatitis C that he has is found mainly in Southeast Asia. Because additional information is needed to clarify the Veteran's alleged risk factors and their timing, on remand, he should be sent another hepatitis C risk factor questionnaire to complete. The Veteran is reminded that VA's duty to assist is not a "one-way street," and that a claimant seeking help cannot passively wait for it in those circumstances where he or she may or should have information that is essential in obtaining putative evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Finally, the Board finds that, following receipt of additional records, the Veteran should be scheduled for a VA examination to obtain a nexus opinion taking into consideration the Veteran's service treatment records and any other records obtained on remand. The Veteran is hereby notified that failure to report to the scheduled examination, without good cause, may result in a denial of his claim. See 38 C.F.R. § 3.655(b) (2010). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Accordingly, the case is REMANDED for the following action: 1. Obtain from the Upstate New York VA Healthcare System all outstanding pertinent records of evaluation and/or treatment of the Veteran, since July 28, 2008, and from the Rochester, New York, Vet Center, since April 7, 2008. All records and/or responses received should be associated with the claims file. 2. Request from SSA copies of any decision(s) and all records underlying any such decision(s) submitted or obtained in support of any claim for disability/ supplemental security income benefits by the Veteran. All records/responses received should be associated with the claims file. 3. Send the Veteran and his representative a letter asking him to provide authorization to enable VA to obtain all outstanding pertinent records from Strong Memorial Hospital, for hospitalization in August 1970, and for treatment at the digestive disease clinic, since May 17, 2005. In addition, ask the Veteran to complete a hepatitis C risk questionnaire. All records and responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. Following completion of 1, 2 and 3 above, arrange for the Veteran to undergo VA examination for the purpose of determining the etiology of the Veteran's hepatitis C. The entire claims file, to include a copy of this REMAND, must be made available to the examiner, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all results made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. After examining the Veteran and reviewing the records contained in the claims file, the examiner is requested to offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hepatitis C: (a) had its onset during the Veteran's military service; (b) is otherwise medically related to service, to include due to sexual relations with his first two wives, to whom he was married while in service, any tattoos received while in the Marines, a human bite, or as a result of moving dead bodies; or (c) is due to post- service drug abuse or tattoos. The examiner should include in the report the rationale for any opinion expressed and a discussion of the known risk factors for hepatitis C confirmed or supported by the record as associated with the Veteran's history. If the examiner determines that it is not feasible to respond to any of the inquiries above, the examiner should explain why it is not feasible to respond. 5. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the Veteran's claim. If any benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The Veteran 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 appeal 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. 2010). _________________________________________________ DEBORAH W. SINGLETON 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) (2010).