Citation Nr: 1311646 Decision Date: 04/08/13 Archive Date: 04/19/13 DOCKET NO. 05-00 082 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: E. A. Gang, Attorney WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The Veteran served on active duty from November 1950 to July 1952. This case comes before the Board of Veterans' Appeals (Board) on appeal of a December 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. Good or sufficient cause having been shown, the Veteran's appeal has been advanced on the Board's docket under the provisions of 38 U.S.C.A. § 7107(a)(2) (West 2002) and 38 C.F.R. § 20.900(c) (2012). For reasons which will become apparent, this case is being REMANDED to the RO. VA will notify you if further action is required on your part. REMAND This case was previously before the Board in July 2009, at which time it was remanded for additional development, to include a request that the National Personnel Records Center search unit morning reports in order to determine if the Veteran was listed as absent for a prolonged period of time in 1951 due to a purported hospitalization. At that time the appellant was in the Republic of Korea. Following completion of that development, the Board, in a decision of June 2010, denied entitlement to service connection for hepatitis C. The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). In March 2011, the Veteran and the Secretary of the Department of Veterans Affairs filed a Joint Motion to Vacate the June 2010 Board decision, because the Board had not ensured that the National Personnel Records Center searched the aforementioned unit morning reports to determine if the Veteran was listed as absent for a prolonged period of time. The Court granted that Motion in April 2011. In September 2011, the Veteran's case was once again remanded in order that the National Personnel Records Center might search for unit morning reports showing that the Veteran was listed as absent for a prolonged period from his unit, to wit, Company A, 15th Regiment, 3rd Division, due to a reported hospitalization in 1951. At that same time, it was requested that the RO/AMC obtain various private medical records which had not previously been made a part of the Veteran's claims folder. Subsequent to the Board's September 2011 remand, various private medical records were obtained, and included in the Veteran's claims folder. However, morning reports from the Veteran's unit, Company A, 15th Regiment, 3rd Division, were determined to be unavailable. See November 2011 report from the National Personnel Records Center. Notably, the Veteran's attorney, in correspondence of late January 2012, noted that, according to the appellant's DD Form 214, he served not in Company "A," but rather, in Company "B." In that same correspondence, the Veteran's attorney indicated that he was submitting a copy of a diary covering the period from 1950 to 1952, compiled by the Veteran's uncle, purporting to show that, during that period, the Veteran was at one time "in a Korean hospital." Under the circumstances, the Board is of the opinion that an attempt must now be made to obtain morning reports and/or any other pertinent records from the aforementioned "Company B" in which the Veteran reportedly served during his time in the Republic of Korea. Accordingly, the case is once again REMANDED to the RO for the following action: 1. The RO should contact the National Personnel Records Center and/or all appropriate records storage facilit(ies) with a request that they search for unit morning reports to determine if the Veteran was listed as absent for a prolonged period from Company B, 87th Reconnaissance Battalion, due to a reported hospitalization in 1951. Should the RO be unable to locate such records, it must specifically document the attempts which were made to locate them, and explain in writing why further attempts to locate and obtain any government records would be futile. The RO should then: (a) notify the Veteran of the specific records that it was unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the Veteran's claim. The Veteran and his attorney must then be given an opportunity to respond. 2. Any pertinent VA or other inpatient or outpatient treatment records, subsequent to September 2012, the date of the most recent evidence of record, should then be obtained and incorporated in the claims folder. The Veteran should be requested to sign any necessary authorization for release of any private medical records not previously submitted to VA. All attempts to procure such records should be documented in the file. If the RO/AMC cannot obtain records identified by the Veteran, a notation to that effect should be included in the claims file. In addition, the Veteran and his attorney should be informed of any such problem. 3. Should any of the aforementioned records contain information which would cause a reasonable person to conclude that the VA examiner who provided a January 2010 opinion might, in light of the additional evidence, provide a different opinion, the RO should forward the claims file to that examiner, and request that he review the additional records and supply an addendum opinion addressing whether it is as least as likely as not that the Veteran's hepatitis C is related to service based upon sound medical principles and evidence in the claims file. A complete rationale must be provided for any opinion offered, and all information and opinions, once obtained, must be made a part of the Veteran's claims folder. In addition, the examiner must specify in his report that the claims file and Virtual VA records have been reviewed. 4. Should an addendum report prove necessary, the RO should review that report to ensure that it is in complete compliance with the directives of this REMAND, and that the examiner has documented his consideration of all records contained in Virtual VA. If the report is deficient in any manner, the RO must implement corrective procedures. 5. The RO should then readjudicate the Veteran's claim for service connection for hepatitis C. Should the benefit sought on appeal remain denied, the Veteran and his attorney should be provided with a Supplemental Statement of the Case which must contain notice of all relevant action taken on the claim for benefits since November 2012. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome in this case. The Veteran need take no action unless otherwise notified. 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). _________________________________________________ DEREK R. BROWN 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) (2011).