Citation Nr: 1306501 Decision Date: 02/26/13 Archive Date: 03/01/13 DOCKET NO. 07-17 325A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Whether new and material evidence to reopen a claim for service connection for hepatitis C has been received. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1967 to July 1969. The Veteran was awarded the Purple Heart Medal, the Combat Action Ribbon, and the Vietnamese Cross of Gallantry with Palm. This case comes before the Board of Veterans' Appeals (Board) on appeal of November 2005 and March 2006 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Board notes that the issue of entitlement to service connection for a back condition was also listed in a December 2010 statement of the case and appealed via a Form 9 substantive appeal in January 2011. However, service connection for spondylosis of the lumbar spine was granted by the RO in a September 2012 rating decision. As such, that issue has been resolved and is not before the Board. See Grantham v. Brown, 114 F.3d 116 (Fed. Cir. 1997). In a written statement dated in November 2012, the Veteran's representative indicated that the Veteran wished to continue the appeal for service connection for hepatitis C and to withdraw his appeal regarding other issues. The Board therefore considers the claims for an increased rating for a shell fragment wound of the right thigh and for an increased rating for a metallic foreign body of the right tarsal to be withdrawn. 38 U.S.C.A. § 7105(b), (d) (West 2002); 38 C.F.R. § 20.204 (2012). The Board notes that in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in this file shows that the records are either duplicative of the evidence in the paper claims file or not relevant to the current issue on appeal. 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 Board's review of the claims file reveals that further RO action in this appeal is warranted. By way of background, the Veteran filed an original claim of service connection for hepatitis C in April 2002. The Veteran claimed that he contracted hepatitis C when he received a blood transfusion after being injured by a land mine in Vietnam in 1968. The claim was denied in a July 2003 rating decision due to the lack of evidence of a blood transfusion in service or other evidence of a nexus between the Veteran's hepatitis C and service. The claim was not appealed and the decision became final. The Veteran filed an application to reopen his claim for service connection for hepatitis C in February 2005. The RO denied the application to reopen the claim in a November 2005 rating decision and granted the application to reopen the claim but denied the claim on the merits in a March 2006 rating decision. See 38 C.F.R. § 3.156(a) (2012). The Veteran perfected an appeal of the current issue in June 2007. See 38 C.F.R. § 20.302 (2012). The Veteran's records show that he served as an "AtAsltMan" in the Marines and was stationed in Vietnam from at least June 1968 to June 1969. The Veteran has described how at some time between June and August 1968 he stepped onto a land mine which exploded, causing shrapnel to embed in his right buttock, right thigh, and left ear. The Veteran's service treatment records (STRs) unfortunately contain no records pertaining to this injury or the subsequent surgery and hospital care associated with it. The Veteran's July 1969 separation examination notes scars on his left neck and right buttock. In April 1970 the Veteran was granted a VA examination at which an additional piece of shrapnel was discovered and removed from his left ear. The Veteran's current VA treatment records show that he has been diagnosed and treated for hepatitis C since at least 2001. After the Veteran filed his original claim for service connection for hepatitis C in April 2002 he was afforded a VA examination during which the examiner noted that blood was not screened for hepatitis C in 1968-1969 and that, although a transfusion was "probably not required" for the treatment of the Veteran's injuries in Vietnam, "if it can be documented that the veteran underwent transfusion while in the service, the veteran's hepatitis C is as likely as not secondary to that transfusion." To ensure that the record is complete and that all due process requirements are met, the RO should undertake appropriate action to associate all outstanding, pertinent service records with the claim. The Veteran has asserted that he received a transfusion while being treated in Vietnam and that this information should be present in his STRs. The Veteran has also indicated that he received surgery and was hospitalized for a month at the "First Medical Hospital" in Da Nang, Vietnam. Currently, the STRs contain no information about the Veteran's land mine injury or subsequent treatment at all, and no clinical records have been associated with the claims file. The Board notes that such records are highly pertinent to the Veteran's claim, and VA therefore has a duty to assist the Veteran and to make efforts to obtain the claimant's records. 38 C.F.R. § 3.159(c)(3) (2012); see also 38 U.S.C.A. § 5103A (West 2002). 38 C.F.R. § 3.159(c) provides that "VA will give the assistance described in paragraphs (c)(1), (c)(2), and (c)(3) to an individual attempting to reopen a finally decided claim." In this case, the Veteran has identified service records which may be directly relevant to an issue necessary to substantiate the claim, and this falls within VA's duty to assist the Veteran in obtaining records as provided in 38 C.F.R. § 3.159(c)(3), including in the case of an application to reopen a previously denied claim. 38 C.F.R. § 3.159(c). While the Veteran's STRs have been associated with the claims file, the Board notes that clinical records may be filed separately from a veteran's STRs, often under the name of the facility. Since it does not appear that any attempt has been made to obtain any clinical records associated with the Veteran's 1968 injury, the Board finds that the RO/AMC should obtain and associate with the claims file any clinical records pertaining to the injury and its treatment at either the First Medical Battalion or the Naval Support Activity Hospital in Da Nang, Vietnam between June 1968 and August 1968. See 38 U.S.C.A. § 5103A(b)(3). Additionally, some confusion remains over whether or not the Veteran has requested a video conference Board hearing before a Veterans Law Judge. In June 2007 the Veteran perfected his substantive appeal to reopen his claim for service connection for hepatitis C and indicated that he did not want a Board hearing. In January 2011 the Veteran submitted a Form 9 substantive appeal for several separate issues and indicated that he did want to have a video conference Board hearing. Later in January 2011 the Veteran submitted a separate election form again indicating that he wished to have a video conference Board hearing. On November 15, 2012 the Veteran's representative submitted a letter requesting certification to the Board and withdrawing the Veteran's claims other than the claim to reopen the claim for service connection for hepatitis C. The letter did not state whether the Veteran still wished to have a Board hearing. A review of VA computer records (VACOLS) shows that a new VA Form 9 was received on November 21, 2012 which indicated that the Veteran did not want a Board hearing; however, this document has not been associated with the claims file. Veterans have a right to a hearing before the VA office having original jurisdiction over the claim as well as a right to a hearing before the Board of Veterans' Appeals. 38 U.S.C.A. § 7107 (West 2002); 38 C.F.R. §§ 3.103(a), (c), 20.700 (2012). In the absence of clear indication of record from the Veteran stating that he no longer wishes to have a Board hearing, this question should be clarified while the matter is on remand. See 38 C.F.R. § 20.704(e). As the Veteran has previously indicated a wish for a videoconference Board hearing, and no such hearing has yet been conducted nor has a clear withdrawal of the request been received, the RO/AMC should contact the Veteran to determine whether he still desires the hearing, and a hearing scheduled if he so desires it. 38 U.S.C.A. § 7107; 38 C.F.R. §§ 19.76, 20.700, 20.703, 20.704 (2012). All correspondence from the Veteran, including any temporary files, the November 21, 2012 Form 9, and any additional correspondence from the Veteran, should be associated with the claims file. Finally, the Veteran's [redacted] address currently used by the Board and the Veteran's representative appears to be at odds with the [redacted] address used by the RO, and at least one recent letter sent to the [redacted] address has been returned as undeliverable. The RO/AMC should verify the Veteran's address, and any previous letters sent to the incorrect address should be resent to the Veteran's current address. Accordingly, the case is REMANDED for the following action: 1. Verify the Veteran's address and resend to the Veteran any letters previously sent to an incorrect address. 2. Ask the Veteran to clarify whether he still desires a Board hearing. If the Veteran answers in the affirmative, such hearing should be scheduled to occur after the development requested below has been completed. Ensure that all correspondence from the Veteran, temporary files, and hearing notices are associated with the claims folder. 3. Obtain from the appropriate source any outstanding clinical records pertaining to the Veteran's land mine injury occurring between June and August 1968 and treated at either the First Medical Battalion or the Naval Support Activity Hospital in Da Nang, Vietnam, to include searches of records filed under the medical facility as well as under the Veteran. All records and/or responses received should be associated with the claims file. 4. Review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claim adjudication. 5. Readjudicate the claims in light of all pertinent evidence. If the benefit sought on appeal remains denied, the Veteran and his representative shall be provided with a supplemental statement of the case. An appropriate period of time shall 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). 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). _________________________________________________ CHERYL L. MASON 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).