Citation Nr: 1044827 Decision Date: 12/01/10 Archive Date: 12/10/10 DOCKET NO. 08-33 816A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Johnson, Counsel INTRODUCTION The Veteran served on active duty from September 1968 to September 1971. This case is before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York, that declined to reopen a previous and final claim of service connection for hepatitis C. In July 2010, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge sitting at the RO. A transcript of his testimony is associated with the claims file. Additional evidence presented at the hearing was accompanied by a waiver of RO consideration. See 38 C.F.R. § 20.1304 (2009). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 Veteran originally filed a claim of service connection for hepatitis C in August 1998. In a September 1998 rating decision, the RO denied service connection on the basis that as there was no evidence of hepatitis being incurred in or aggravated due to service, the claim was "not well grounded." The Veteran was notified of the decision and of his appellate rights by way of notice dated in September 28, 1998. The Veteran failed to submit a timely notice of disagreement (NOD) with the September 1998 rating decision and the decision became final one year later. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2010). In March 1999, the Veteran attempted to reopen this claim. In April 1999, the RO informed the Veteran by letter that he could reopen the claim by submitting new and material evidence. The Veteran did not respond within one year and the claim was therefore abandoned. See 38 C.F.R. § 3.158. Although some claims finally denied as being "not well grounded" may be readjudicated de novo, such readjudication is not allowed unless the claimant makes such a request, or the Secretary makes such a motion, within two (2) years of the enactment of the VCAA; no action to initiate readjudication of such a claim should be taken subsequent to November 9, 2002. VAOPGCPREC 03-2001 (January 22, 2001); see 38 U.S.C.A. § 7104(c) (West 2002) and 38 C.F.R. § 20.101(a) (2010) (The Board is bound in its decisions by the regulations of the Department, instructions of the Secretary, and precedent opinions of the General Counsel of the VA). In this case, the Veteran did not request readjudication under the VCAA nor did the RO initiate a de novo readjudication of the claim by November 9, 2002. Pursuant to the precedent opinion, no action to initiate readjudication of this claim may now be taken. The September 1998 RO decision is final. The Veteran sought to reopen his claim in August 2007. In a rating decision of April 2008, the RO determined that new and material evidence had not been presented to reopen the claim and the Veteran appealed. The submission of "new and material" evidence is a jurisdictional prerequisite to the Board's review of such an attempt to reopen a claim. Absent the submission of evidence that is sufficient to reopen the claim, the Board's analysis must cease. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed.Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996); McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). The only evidence noted to have been considered by the RO at the time of the prior and final September 1998 rating decision was the Veteran's service treatment records. It does not appear that the RO also considered the Veteran's service personnel records. In September 2007, and in connection with the Veteran's claim for an unrelated condition, the RO contacted the National Personnel Records Center (NPRC) and requested the Veteran's entire personnel file. In September 2007, NPRC mailed the Veteran's service personnel records. As relevant service records were associated with the claims file after the RO's prior final decision, and as it cannot be determined with certainty whether they were a part of the original claims file, the current claim for entitlement to service connection for hepatitis C will now be reconsidered on the merits. See 38 C.F.R. § 3.156(c)(1) (2010). The Veteran seeks service connection for hepatitis C. Service personnel records show the Veteran served in Vietnam from April 1969 to March 1970 with the 116th Aviation Company (Assault Helicopter) and the 341st Aviation Support Detachment. His principal duties were helicopter repairman technician inspector and helicopter mechanic. He received the Air Medal (without a "V") for meritorious achievement. The award indicates that the Veteran actively participated in more than 25 aerial missions over hostile territory in support of operations against communist aggression. A September 1968 physical examination for entrance into service shows no tattoos were observed on the Veteran's body. Service treatment records do not reflect any treatment or diagnosis of hepatitis. A September 1971 separation examination is negative for a diagnosis of hepatitis. The examination report shows that the Veteran had tattoos on both arms. In various written statements and in oral testimony at a recent hearing, the Veteran alleged that he was hospitalized in service for treatment of hepatitis C. The Veteran also described various incidents and activities in service which he believes exposed him to hepatitis C. Specifically, he alleged that during service he shared razors with other soldiers, received tattoos, used prostitutes, received barber services from Vietnamese barbers who used straight razors on multiple soldiers without any disinfectants, and received air gun inoculations. The Veteran also alleged that as a door gunner in Vietnam, his duties involved picking up wounded and deceased soldiers for transport. He stated that the helicopters he flew in were contaminated with blood from these wounded and deceased soldiers and as the crew chief; he was responsible for cleaning out the helicopter (i.e. by wiping away the blood). Of record is letter dated in January 2002, from one private physician to another, which indicates that the Veteran was diagnosed with hepatitis C in 2001. Also of record is a copy of a March 2008 VA PTSD examination that reflects that the Veteran reported a history of heroin use which initially began during his service in Vietnam, and which continued following his discharge from service. The Veteran's post-service drug use was reported to have included a "large range of drugs to include methamphetamines and cocaine." He had been completely abstinent from drug or alcohol use for more than 20 years. To date, the Veteran has not been afforded a VA examination for his hepatitis C. In disability compensation (service connection) claims, VA must provide a medical examination [for a nexus opinion, as applicable] when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service- connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, at the Veteran's hearing, he indicated that he received treatment from the Thomas Jefferson University Hospital. VA is required to assist a claimant in obtaining evidence necessary to substantiate a claim for benefits. 38 C.F.R. § 3.159(c) (2010). As VA is on notice that private treatment records exist and are potentially relevant to the Veteran's claim, all reasonable effort to obtain these records must be undertaken. In addition, as the Veteran reported that he was hospitalized in service in October 1969 for hepatitis, an additional search for service treatment records should be accomplished. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). Expedited handling is requested.) 1. Request through the appropriate channels additional service treatment records, to include in-service hospitalization records dated in October 1969 from the 6CC Hospital. 2. Contact the Veteran and request that he identify the facility and dates of treatment for any treatment for his hepatitis C. With appropriate authorization from the Veteran, obtain and associated with the claims file any records identified by the Veteran, including records from the Thomas Jefferson University Hospital. 3. The Veteran should be afforded a VA examination to provide an opinion as to the etiology of the Veteran's current hepatitis C; including whether the disease had its onset in service, or is causally related to service. All indicated clinical and laboratory tests should be completed and reviewed. The claims file, including a copy of this remand, should be made available to the examiner for review in conjunction with the examination. A notation to the effect that this record review took place should be included in the examiner's report. The examiner is requested to consider and discuss all of the Veteran's reported risk factors that may be relevant to his current hepatitis C (i.e. alleged exposure from shared razors, tattoos, prostitutes, air gun inoculations, and exposure to blood) and any additional hepatitis C risk factors associated with the Veteran's active service, including intravenous drug use. The examiner should, as part of the examination, elicit a drug use history from the Veteran indicating what types of drugs were used, and how often, in service and after service. Following a review of the claims folder and examination of the Veteran, the examiner is requested to provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's hepatitis C disability had its onset in service; or is causally related to an incident of service, such as sharing razors, tattoos, prostitutes, air gun inoculations, and reported exposure to blood. In light of the Veteran's statement that he was treated for hepatitis in service, the examiner is also requested to explain the usual incubation period and onset of symptoms for hepatitis C. A detailed reasons and bases must be provided for any opinion rendered. 4. Readjudicate the Veteran's claims for entitlement to service connection for hepatitis C. If any action taken is adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate 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. 2010). _________________________________________________ S. S. TOTH 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).