Citation Nr: 1300128 Decision Date: 01/03/13 Archive Date: 01/11/13 DOCKET NO. 08-27 616 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for hepatitis C, to include residuals thereof. 2. Entitlement to service connection for diabetes mellitus type II secondary to herbicide exposure. 3. Entitlement to service connection for hypothyroidism (claimed as thyroid condition). 4. Entitlement to service connection for hypertension. 5. Entitlement to service connection for a heart disorder. 6. Entitlement to service connection for chronic obstructive pulmonary disease (claimed as breathing problems). REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1969 to September 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. That decision denied service connection for hepatitis C. The Veteran perfected his appeal, and the case was referred to the Board for appellate review. A hearing was held on February 1, 2012, in Atlanta, Georgia before the undersigned Veterans Law Judge, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and who is rendering the determination in this case. A transcript of the hearing testimony is in the claims file. Furthermore, since the hearing, VA treatment records (Austell, Georgia) from November 2008 through December 2011 have been associated with the 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 The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. At the February 2012 hearing, the Veteran asserted that the hepatitis C for which he was treated in service caused damage to his liver and kidneys. The Veteran indicated that he was not presently being treated for hepatitis C or for a liver or kidney condition; however, he mentioned that he had a flare-up of hepatitis around 1991 or 1992 in a Residential Treatment Unit (RTU) in Cedartown, Georgia. Such records are not currently contained in the file. Therefore, the RO should attempt to secure them in accordance with the duty to assist. See 38 C.F.R. § 3.159(c). In addition, the Board notes that the Veteran has not been afforded a VA examination in connection with his claim for service connection for hepatitis C. His service treatment records, in pertinent part, show a diagnosis and treatment of infectious hepatitis in September 1971. There is no evidence of a current diagnosis of hepatitis C; however, VA treatment records from 2009 through 2011 do reveal problems of chronic kidney disease and elevated liver functions. Therefore, the Board finds that a VA examination and medical opinion are necessary for determining the nature and etiology of any hepatitis C, or residuals thereof that may be present. Furthermore, the Board notes that the RO issued a June 2009 rating decision denying service connection for type II diabetes mellitus, hypothyroidism, hypertension, a heart disorder, and chronic obstructive pulmonary disease (issues enumerated 2 through 6 on title page). The Veteran submitted a notice of disagreement (NOD) in June 2010 indicating that he wanted to appeal all five issues listed in the June 2009 rating decision. The RO did send him a letter in July 2010 acknowledging receipt of the NOD; however, to date, the RO has not issued a statement of the case (SOC) regarding these five issues. The filing of an NOD places a claim in appellate status. Therefore, the failure to issue an SOC in such a circumstance renders a claim procedurally defective and necessitates a remand. See 38 C.F.R. §§ 19.9, 20.200, 20.201 (2012); see also Manlincon v. West, 12 Vet. App. 238 (1999); Godfrey v. Brown, 7 Vet. App. 398 (1995); Archbold v. Brown, 9 Vet. App. 124 (1996). The purpose of the remand is to give the RO an opportunity to cure this defect. Thereafter, the RO should return the claims file to the Board only if the Veteran perfects his appeal in a timely manner. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997); see also In re Fee Agreement of Cox, 10 Vet. App. 361, 374 (1997) (holding that if the claims file does not contain a notice of disagreement, a statement of the case and a VA Form 9 [substantive appeal], the Board is not required, and in fact, has no authority, to decide the claim). Therefore, in order to give the Veteran every consideration with respect to the present appeal and to ensure due process, it is the Board's opinion that further development of the case is necessary. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should issue a statement of the case addressing the issues of entitlement to service connection for type II diabetes mellitus, hypothyroidism, hypertension, a heart disorder, and chronic obstructive pulmonary disease (issues enumerated 2 through 6 on title page). The statement of the case should include a discussion of all relevant evidence considered and citation to all pertinent law and regulations. Thereafter, the Veteran should be given an opportunity to perfect an appeal by submitting a timely substantive appeal in response thereto. The RO should advise the Veteran that the claims file will not be returned to the Board for appellate consideration of these issues following the issuance of the statement of the case unless he perfects his appeal. 2. The RO/AMC should obtain and associate with the claims file any treatment records from the Residential Treatment Unit in Cedartown, Georgia covering the time period of 1990 through 1995. If these are private medical records, the RO/AMC should obtain from the Veteran a completed VA Form 21-4142, Authorization and Consent to Release Information to the VA. If a search for the records yields negative results, the claims file must be properly documented as to the unavailability of these records. 3. The Veteran should be afforded a VA examination to determine the nature and etiology of hepatitis C, or any residuals thereof, to include any liver and kidney conditions, that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records as well as his post-service medical records, assertions, and hearing testimony. It should be noted that the Veteran was hospitalized and treated for infectious hepatitis during service in September 1971. He was discharged back to duty 21 days later. VA treatment records dated from 2009 through 2011also identify problems of chronic kidney disease and elevated liver function. The examiner should opine as to whether it is at least as likely as not that the Veteran has hepatitis C or residuals thereof, to include any currently identified kidney or liver condition, that are causally or etiologically related to his military service. In so doing, the examiner is asked to provide a full discussion of all possible contributing factors to any currently identified liver and kidney problem. In rendering the opinion, the examiner should not resort to mere speculation, but rather should consider that the phrase "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. Thus, unless the examiner concludes that the current disability is either likely or unlikely the result of an event, injury, disease incurred in service, the examiner should state whether it is at least as likely that the current disability is the result of an event, injury, or disease incurred in service as opposed to it being the result of some other factor or factors. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2012), copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. After completing these actions, the RO should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 5. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefit sought is not granted, the Veteran should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. 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. 2012). _________________________________________________ JESSICA J. WILLS 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) (2012).