Citation Nr: 1311955 Decision Date: 04/10/13 Archive Date: 04/19/13 DOCKET NO. 07-34 803A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Durham, Counsel INTRODUCTION The Veteran served on active duty from June 1964 to June 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision, which denied the Veteran's application to reopen his previously denied claim for service connection for hepatitis C. The Board reopened and remanded this issue for further development in December 2012. Further, the Board notes that the issues of entitlement to an increased evaluation for PTSD and entitlement to service connection for bilateral glaucoma were deferred in a February 2012 rating decision. In the December 2012 Board determination, the Board referred these issues to agency of original jurisdiction (AOJ) for appropriate action. It does not appear that these issues have been addressed since this time. As such, the issues of entitlement to an increased evaluation for PTSD and entitlement to service connection for bilateral glaucoma have been raised by the record, but have not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over them, and they are 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 Veteran if further action is required. REMAND The Veteran is seeking entitlement to service connection for hepatitis C. After a thorough review of the claims file, the Board finds that additional development is needed prior to the adjudication of this claim. Specifically, the Veteran asserted in a November 2007 statement that, while on active duty, he was ordered to the flight line to assist in unloading a C-123 cargo airplane, which contained unsealed and leaking body bags. Additionally, the Veteran's representative indicated in an October 2012 statement that the Veteran was seeking service connection for hepatitis C due to air gun inoculations. In the March 2013 Appellant's Post-Remand Brief, the representative suggested that the Veteran's hepatitis C could have stemmed from dental surgery during service or from exposure from prostitutes during service. Service personnel records show that the Veteran served at Mactan Air Field in the Philippines from April 1966 to April 1967. While there, he had a temporary duty assignment to Vietnam beginning in October 1966. Service treatment records show that on April 12, 1966, the Veteran underwent dental treatment described as "cement crown with post #9" at Mactan Air Field. In November 1966, he was treated for a rash in the genital area in Vietnam. Subsequent service treatment records document treatment for gonorrhea. These records support the Veteran's statements with respect to his possible exposures. In January 2013, the Veteran underwent VA examination pursuant to the Board's December 2012 remand order. The Veteran again reported that he served in Vietnam, and his duties included handling body bags with remains of deceased service members. The bags leaked fluids on his exposed skin. He reported that he frequently had minor open cuts on his hands and arms. The Veteran also reported that he had sexual contact with native prostitutes. He reported having had oral surgery in Vietnam in field conditions. The examiner observed that the Veteran had a flu-like syndrome requiring limited duty while in Vietnam that was of unexplained etiology. He also noted that proximate to his discharge from the Air Force, the Veteran was diagnosed with hepatitis non-A, non-B in 1972. He found that the Veteran had had no risk factors for hepatitis C since Vietnam. The examiner noted that while there is mention of intravenous drug abuse in the Board's remand, the Veteran denied such use at the examination. The examiner noted that there was no medical documentation of intravenous drug abuse, and further that the Veteran is a college-educated businessman with no socio-economic risk factors for intravenous drug abuse. The examiner concluded, based on his review of the claims file and the Veteran's examination, that his hepatitis C was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that the Veteran had risk factors for blood born pathogen exposure in Vietnam, such as handling dead bodies and direct exposure to body fluids. He also had oral surgery in Vietnam in field conditions with increased probability of exposure to contaminated dental instruments. The Veteran had sexual contact with prostitutes in Vietnam and the Philippines, both endemic hepatitis C countries. The likelihood of contracting hepatitis C from native prostitutes therefore is significant. The Veteran had proximate diagnosis for hepatitis non-A, non-B within a few years of service in Vietnam. Most non-A, non-B hepatitis is now considered to have been hepatitis C in the era before the hepatitis C antibody test. The Veteran subsequently was tested at VA Long Beach for hepatitis C in 2004 and was found to be positive for infections. He concluded that while the Veteran had significant probability of risk for hepatitis C in the military, he has had not had any known risk factors for hepatitis C infection after leaving the military. His socioeconomic profile is bland and would indicate low risk of infection after discharge from the Air Force. He noted that the evidence based medical guidelines support causality in this situation, and that there is sufficient new material information to establish a nexus between the Veteran's current hepatitis C and his military service in Vietnam. The Board finds that an addendum to this medical opinion is required, given the actual facts as they are documented in the claims file. Specifically, the physician found significant both the Veteran's history with prostitutes in Vietnam and his "oral surgery under field conditions" in Vietnam. He also found significant the lack of risk factors since service in Vietnam. Given these conditions, and the purported 1972 diagnosis of what was likely hepatitis C, the physician offered the positive nexus opinion. As noted above, the record documents the treatment of sexually transmitted disease in Vietnam; therefore, this risk factor is accurately documented in the physician's opinion. The record further documents treatment for a crown replacement at an air field in the Philippines. Although the physician incorrectly stated it was in field conditions in Vietnam, the Board finds that the physician's reliance on this treatment as a risk factor is appropriate, given his statement regarding the hepatitis C risk in both countries. However, the physician appears to place great weight on the lack of risk factors after service, and the 1972 diagnosis. In these regards, the Board points out that while the Veteran now denies IV drug use to VA treatment providers whom he sees in conjunction with pursuing his claim, the record is clear when he specifically reported such drug use to private providers in conjunction with the treatment of his life-threatening illness. See August 1993 private treatment record from Kaiser Permanente. This record also shows that the Veteran attended rehabilitation in 1984 for alcohol and cocaine abuse. Furthermore, this record documents a non-A non-B hepatitis since approximately February 1978, not 1972 as referenced by the reviewing physician. The Board finds it highly unlikely that such statements were somehow misrepresented in the private treatment record, and cannot ignore their existence now. It is unclear to the Board whether the reviewing physician's opinion would change in light of the post-service risk factor and the delayed diagnosis in 1978, rather than 1972. Therefore, a clarifying opinion must be obtained prior to final decision. Additionally, the Board notes that the December 2012 remand specifically requested that all relevant VA treatment records that have not yet been associated with the claims file be obtained. The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, in light of the December 2012 directive regarding VA treatment records, and the fact that the claims file contains no indication that any attempts were made to obtain recent VA treatment records since the December 2012 Board determination, the Board finds that VA has not substantially complied with the remand directives in this regard. Consequently, a new remand is required to comply with the holding of Stegall and to obtain any and all recent VA treatment records that have not yet been associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. Obtain any and all relevant VA treatment records that have not yet been associated with the claims file. 2. The Veteran's claims file should again be sent to the January 2013 VA examiner for clarification of his opinion. If the prior examiner is not available, the claims folder should be sent to another examiner for review. The examiner is asked to review the file again, and his January 2013 opinion. Based on the review, the examiner is asked to render an opinion as to whether it is at least as likely as not that the Veteran's hepatitis C had its onset during his military service or was caused or aggravated by his military service, to specifically include the Veteran's reports of being exposed to hepatitis C through air gun inoculations, leaking body bags, prostitutes in Vietnam, dental treatment in the Philippines, or any other risk factors reported at the January 2013 VA examination. In rendering any opinions, the examiner should specifically discuss the Veteran's history of intravenous drug use from 1970 to 1978, and rehabilitation for alcohol and drug abuse in 1984, and whether these facts change the opinion offered in January 2013. Additionally, the examiner should specifically cite to medical evidence documenting a diagnosis of hepatitis non-A, non-B in 1972. If no such evidence exists, the examiner should state such. The examiner is reminded that the term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means 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 that conclusion as it is to find against it. The examiner must provide the underlying reasons for any opinions provided. 3. Then, readjudicate the claim. In particular, the RO should review all the evidence that was submitted since the most recent supplemental statement of the case (SSOC). If the benefit sought remains denied, the Veteran and his representative should be provided a SSOC. After the Veteran and his representative have been given the applicable time to submit additional argument, the claim should be returned to the Board for further review. The Veteran 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 or by the United States Court of Appeals for Veterans Claims (Court) 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). _________________________________________________ Bethany L. Buck Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).