Citation Nr: 1309933 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 10-37 339 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Kristi L. Gunn, Counsel INTRODUCTION The Veteran served on active duty from January 1973 to December 1975. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Providence, Rhode Island, Department of Veterans Affairs (VA) Regional Office (RO). The Board has reviewed the contents of the Veteran's Virtual VA file and found no medical or other evidence pertinent to this appeal that is not in his claims file. The issue of entitlement to nonservice-connected pension has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). See the January 2013 personal statement. Therefore, the Board does not have jurisdiction and the matter is referred to the AOJ for appropriate action. 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 Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. The Veteran contends that his current hepatitis C is attributable to his active military service. At the May 2012 Board hearing, the Veteran testified that he contracted hepatitis C during service, while being discharged through the 5th General Army Hospital in Germany. He explained that while he was there, he noticed signs around the hospital regarding contagious individuals in the ward with hepatitis. The Veteran stated that it was during this time at the hospital that he incurred hepatitis C, and he was diagnosed with hepatitis C in 1979, shortly after discharge from service. He also specifically denied using drugs intravenously in service and having in-service blood transfusions and tattoos. See the Board hearing transcript, pages 2-5. The Veteran asserts that service connection is warranted for his hepatitis C. Review of the Veteran's service treatment records show that the Veteran had an in-service drug problem. Beginning in January 1975, the Veteran was admitted to a halfway house rap center after admitting to drinking alcohol weekly and using heroin, Doriden, other hypnotics or sedatives, amphetamines, hallucinogens (LSD Type), and hashish. The Veteran indicated that he usually ingested, smoked, or snorted the various types of drugs. After receiving a poor evaluation with regards to the Veteran's work efficiency and conduct by his commanding officer and testing positive on several occasions for unauthorized drugs, the Veteran was recommended for Chapter 13 separation (drugs) from service. Upon discharge from service, clinical evaluation of the Veteran reflected normal results, as noted on the July 1975 report of medical examination for Chapter 13 discharge. However, the physician noted that the Veteran had positive urine testing in September 1975 for opiate abuse, which included Mandrax, morphine, and amphetamines. Post service treatment records reflect a diagnosis of hepatitis C with continuing treatment of a long history of substance of abuse, which includes alcohol, heroin, and cocaine. See VA outpatient treatment records dated May 2009 to July 2009. In general, for service connection to be granted for hepatitis C, the evidence must show that a veteran's hepatitis C infection, risk factor(s), or symptoms were incurred or aggravated by service. The evidence must further show by competent, medical evidence that there is a relationship between the claimed in-service injury and the veteran's hepatitis C. Risk factors for hepatitis C include intravenous (IV) drug use, blood transfusions before 1992, hemodialysis, intranasal cocaine, high-risk sexual activity, accidental exposure with a health care worker, and various kinds of percutaneous exposure such as tattoos, body piercing, acupuncture with non-sterile needles, shared toothbrushes or razor blades. See VBA letter 211B (98-110) November 30, 1998. VA Fast Letter (FL) issued in June 2004 (FL 04-13, June 29, 2004) identified "key points" that included the fact that hepatitis C is spread primarily by contact with blood and blood products, with the highest prevalence of hepatitis C infection among those with repeated, direct percutaneous (through the skin) exposure to blood (i.e., intravenous drug users, recipients of blood transfusions before screening of the blood supply began in 1992, and hemophiliacs treated with clotting factor before 1987). Another "key point" was the fact that hepatitis C can potentially be transmitted with the reuse of needles for tattoos, body piercing, and acupuncture. It was concluded in FL 04-13 that the large majority of hepatitis C infections can be accounted for by known modes of transmission, primarily transfusion of blood products before 1992, and injection drug use. Direct service connection may be granted only when a disability was incurred or aggravated in line of duty, and not the result of the Veteran's own willful misconduct or, for claims filed after October 31, 1990, the result of his or her abuse of alcohol or drugs. 38 C.F.R. § 3.301(a). The isolated and infrequent use of drugs by itself will not be considered willful misconduct; however, the progressive and frequent use of drugs to the point of addiction will be considered willful misconduct. Where drugs are used to enjoy or experience their effects and the effects result proximately and immediately in disability or death, such disability or death will be considered the result of the person's willful misconduct. Organic diseases and disabilities which are a secondary result of the chronic use of drugs and infections coinciding with the injection of drugs will not be considered of willful misconduct origin. Where drugs are used for therapeutic purposes or where use of drugs or addiction thereto, results from a service- connected disability, it will not be considered of misconduct origin. 38 C.F.R. § 3.301(c)(3). The VCAA requires that VA assist a claimant in obtaining evidence needed to substantiate the claim. 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 (West Supp. 2012); 38 C.F.R. § 3.159 (2012). Review of the evidentiary record shows that the Veteran has not been afforded a Compensation and Pension examination for his hepatitis C. There remains some question as to whether the Veteran's current hepatitis C is attributable to his active military service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, further development of the evidence will be undertaken prior to our final adjudication of the Veteran's claim for service connection. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for the appropriate VA examination to determine whether there is a nexus between his active military service and his hepatitis C. The claims file must be made available to the examiner for review, and the examination report should reflect that such review has been accomplished. The examiner must provide an opinion as to whether 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) the Veteran's hepatitis C had its clinical onset during active service or is related to any in-service disease, event, or injury. In providing this opinion, the examiner should consider the Veteran's contention that during service he was in a hospital where individuals in the ward had hepatitis, as well as his in-service and post-service substance abuse, as described above in the body of this Remand. The examiner should fully explain any opinion expressed. If the examiner cannot render the requested opinion, a full explanation for why the opinion cannot be made must be provided. 2. Then, review the medical examination report obtained to ensure that the remand directives have been accomplished, and return the case to the examiner if all questions posed are not answered. 3. Finally, readjudicate the Veteran's claim. If the claim remains denied, provide the Veteran with a supplemental statement of the case and allow an appropriate time for response. 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). _________________________________________________ P.M. DILORENZO 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).