Citation Nr: 1120983 Decision Date: 05/31/11 Archive Date: 06/06/11 DOCKET NO. 09-19 974 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The Veteran appellant had active military service in the United States Army from October 1, 1974 to October 29, 1974. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision issued by the above Regional Office (RO) of the Department of Veterans Affairs (VA). In August 2010, a Travel Board hearing was held at the RO before the undersigned Acting Veterans Law Judge. A transcript is in the claims file. 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 A determination has been made that additional evidentiary development is necessary. Accordingly, further appellate consideration will be deferred; this case is remanded to the AMC/RO for action as described below. The appellant is seeking service connection for infection with the hepatitic C virus (HCV). Review of the appellant's service treatment records (STRs) reveals that he was hospitalized at the Moncrief Army Hospital from October 21, 1974 to October 29, 1974. A hematology laboratory slip, dated October 15, 1974, indicates that the appellant had a hemoglobin level of 13.0 grams and a hematocrit of 13 percent on that date. The appellant testified at his August 2010 Travel Board hearing that he was transfused with two units of blood while he was hospitalized at the Army hospital in October 1974. The appellant also testified that he had been told that he had hepatitis after service in 1978 or 1979, and that he had been told that he had chronic hepatitis in approximately the year 2000. He stated that he had not had any treatment for the hepatitis infection between 1979 and 2000. See Hearing Transcript pp. 5-9. A veteran's lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); see Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Receipt of a blood transfusion is the sort of treatment that is observable by a lay person. See also Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms). However, the only hospital record from the Moncrief Army Hospital for the pertinent period is the discharge summary; the complete hospital records are not included in the claims file, so it is unknown whether or not the appellant received any human blood products such as blood or plasma. On remand, a search for these Moncrief Army Hospital records should be undertaken to ascertain whether the appellant was afforded blood bank services, including transfusions of human blood products such as plasma or blood. Review of the appellant's VA treatment records dated between 1979 and 2010 reveals that he had been hospitalized at the VA Medical Center in Little Rock on at least two occasions (May-June of 1979, and March 1980). On March 23, 1980, laboratory testing for the hepatitis B surface antigen (HBsAg) was negative. However, other than the discharge summaries and the March 1980 laboratory slip, no records from those two inpatient stays are of record. An October 1982 VA outpatient treatment note states that the appellant had been hospitalized, in May 1982, to be treated for hepatitis. None of the associated inpatient records have been added to the claims file. VA is, therefore, on notice of records that may be probative to the claim. See Robinette v. Brown, 8 Vet. App. 69 (1995). VA has a responsibility to obtain records generated by Federal government entities that may have an impact on the adjudication of a claim. See Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010); Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Therefore, in order to fulfill the duty to assist, all of the appellant's outstanding Moncrief Army Hospital inpatient records and all of the outstanding VA inpatient and outpatient records, as well as all pertinent private inpatient and outpatient records, should be obtained and associated with the claims file. No comprehensive review of the appellant's medical history with opinion as to the etiology of the appellant's HCV infection has been accomplished. Nor has an analysis of risk factors been performed and it is unknown how many risk factors besides the reported blood transfusion apply to the appellant. In Stefl v. Nicholson, 21 Vet. App. 120 (2007), the Court found that the Board may not rely on its own lay opinion when provided with a medical opinion which does not clearly address the relevant facts and medical science. There is no opinion of record that explains the clinical significance of the genotype of 1 for the appellant's HCV infection that was noted in a May 2006 VA gastroenterology note, or how that genotype might reflect the origin and onset date of the HCV infection. Likewise, there is no opinion of record that explains the clinical significance of the October 1974 hematology laboratory testing results for the appellant. On remand, such opinions should be obtained. These considerations require the gathering of military and medical records and further investigation by medical professionals, inasmuch as the Board is prohibited from substituting its own unsubstantiated medical opinions. See Colvin v. Derwinski, Vet. App. 171, 175 (1991). In addition, the duty to assist includes obtaining medical records and examinations where indicated by the facts and circumstances of an individual case. See Murphy v. Derwinski, 1 Vet. App. 78 (1990). The Court has stated that the Board's task is to make findings based on evidence of record - not to supply missing facts. Beaty v. Brown, 6 Vet. App. 532 (1994). Thus, where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order to fulfill its statutory duty to assist the appellant to develop the facts pertinent to the claim. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). Therefore, to ensure full compliance with due process requirements and the development of all potentially relevant evidence as to all issues on appeal, this case is REMANDED to the AMC/RO for the following: 1. Assure that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103, and 5103A, the implementing regulations found at 38 C.F.R. § 3.159, and any other applicable legal precedent has been completed. 2. Locate the appellant's service medical records for his inpatient hospital stay at Moncrief Army Hospital in October 1974, to include all blood bank records (type and crossmatch records) and all laboratory testing records such as hematology complete blood count (CBC) results. Ask the Moncrief Army Hospital Blood Bank if the list of final disposition of human blood products for October 21, 1974 to October 29, 1974, includes the appellant's name. If any source of records contacted suggests other sources, those sources should be encompassed by the search. Any and all records obtained should be associated with the claims file. If the records cannot be located, the AMC/RO should so specifically find and the documentation used in making that determination should be set forth in the claims file. 3. Contact the appellant to obtain the names and addresses of all VA, private, or other government health care providers and treatment centers where he has been treated for any liver or sickle cell-related condition since service. After securing the necessary release(s), obtain those records that have not been previously secured. In particular, obtain all - a. private and VA inpatient and outpatient health care records dated between October 1974 and May 1979, to include all laboratory and blood bank testing results; b. VA hospital records dating from the appellant's May 23, 1979 to June 2, 1979 hospitalization at the Little Rock VA Medical Center (VAMC), to include all laboratory and blood bank testing results; c. private and VA inpatient and outpatient health care records dated between June 1979 and March 1980, to include all laboratory and blood bank testing results; d. VA hospital records dating from the appellant's March 22, 1980 to March 27, 1980 hospitalization at the Little Rock VAMC, to include all laboratory and blood bank testing results; e. private and VA inpatient and outpatient health care records dating from March 1980 to May 1982, to include all laboratory and blood bank testing results; f. private or VA hospital records dating from the appellant's May 1982 hospitalization, to include all laboratory and blood bank testing results; and g. private or VA inpatient and outpatient health care records dating from May 1982 onward, to include all laboratory and blood bank testing results. 4. To the extent there is an attempt to obtain any of these records that is unsuccessful, the claims file should contain documentation of the attempts made. The appellant and his representative should also be informed of the negative results and be given opportunity to secure the records. 5. Thereafter, the arrange for the appellant's records to be reviewed by an appropriate health care provider, such as a gastroenterologist or an infectious diseases specialist, due to the complexity of the etiological questions at issue in this case. The reviewer should be provided with the appellant's claims file, including any records obtained pursuant to the above-mentioned development, and a copy of this remand. The reviewer should render an opinion as to whether or not the appellant is infected with HCV, and, if so, discuss the etiology and onset date of the condition. The reviewer must state whether or not the appellant has ever been transfused with any human blood product and state the date such transfusion, if any, occurred, with reference to the medical evidence of record. The reviewer must list and discuss all documented risk factors for the appellant; the reviewer should rank order the documented risk factors relative to the probability that any current confirmed HCV infection is etiologically related to the risk factor. Specifically, the reviewer is requested to provide an opinion as to whether it is it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that any documented hepatic pathology is related to the appellant's service for 29 days in October 1974. The basis of the opinion should be included in the document containing the opinion. If the reviewer indicates that a physical examination or laboratory testing is necessary before an opinion can be rendered, the AMC/RO should arrange for said examination to take place Note: As used above, the term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather 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 causation as it is to find against it. Note: If any opinion and supporting rationale cannot be provided without invoking processes relating to guesses or judgment based upon mere conjecture, the physician should clearly and specifically so specify in the report, and explain why this is so. In this regard, if the physician concludes that there is insufficient information to provide an etiologic opinion without result to mere speculation, the physician should state whether the inability to provide a definitive opinion was due to a need for further information (with said needed information identified) or because the limits of medical knowledge had been exhausted regarding the etiology of the appellant's HCV pathology. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 6. If the benefit sought on appeal remains denied, the appellant and his representative should be provided a Supplemental Statement of the Case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. 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). Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. 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). _________________________________________________ JOHN Z. JONES Acting 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).