Citation Nr: 1313699 Decision Date: 04/24/13 Archive Date: 05/03/13 DOCKET NO. 08-15 034 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran had active service from January 1991 to April 1991, with additional service in the Reserves. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, found that new and material evidence had not been received to reopen a claim of entitlement to service connection for hepatitis C. This case was previously before the Board in November 2011, at which time the Board found that new and material evidence had been received to reopen the previously denied hepatitis C claim. However, the Board found that further development was required regarding the underlying service connection claim, and remanded it for such development. The Board also notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim. A review of the documents in such file reveals that they include VA treatment records. Thus, any future consideration of this appellant's case should take into account the existence of this electronic record. For the reasons detailed below, the Board finds that further development is still required in this case. Accordingly, 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 Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). In this case, a review of the clinical records reveals a diagnosis of active hepatitis C, with resultant liver problems. The Veteran has contended that this is due to having a vaccination with an air inoculation gun, and she recalled that there was blood on the gun that administered the vaccination to her arm. She is also confirmed to have been a nurse during her tour in the Southwest Asia Theater of Operations, and she has reported handling soldiers and POW's during that time The Board also observes that the Veteran's service treatment records reflect, in part, that she reported a pre-service history of hepatitis. For example, a January 1987 service examination noted that she reported being hospitalized in 1972 for hepatitis, possible reaction to birth control pill, resolved. She also indicated she had had hepatitis on Reports of Medical History dated in January 1988, August 1988, and March 1991. On the March 1991 Report, it was noted that she was hospitalized for two weeks in 1970 for infectious hepatitis. It was also indicated that she had Hepatitis A, prior to service, with no sequela. In November 2011, the Board remanded this case, in part, for a VA medical examination to evaluate the nature and to obtain an opinion as to the relationship between the Veteran's current hepatitis and service. The record reflects that such an examination was scheduled for December 2011, and that the Veteran failed to report for that examination. Pursuant to 38 C.F.R. § 3.326(a) individuals for whom examinations have been authorized and scheduled are required to report for such examinations. The provisions of 38 C.F.R. § 3.655 addresses the consequences of a veteran's failure to attend scheduled medical examinations. That regulation at (a) provides that, when entitlement to a benefit cannot be established or confirmed without a current VA examination and a claimant, without "good cause," fails to report for such examination, action shall be taken. At (b) it is provided that when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. However, when the examination is scheduled in conjunction with a reopened claim for a benefit which was previously disallowed, as is the case here, the claim shall be denied. The Board observes, however, that in a March 2013 written statement, the Veteran's accredited representative noted that enclosed "screen shots" from their case management system note that the Veteran called their local New York office in December 2011 asking for a copy of a November 2011 letter from the AMC as she had not received it. It was also noted that she again called the office in January 2012 stating she would be obtaining additional private medical records regarding her hepatitis condition, and that such records were submitted in March 2012. Consequently, the representative asserted that there was good cause to believe the Veteran may not have received notification of the scheduled examination (based on her not receiving the AMC letter) and/or she was too ill to report. The representative also contended that it was obvious by the Veteran's continued contact with the New York office, as well as her submission of medical records, that she wished to continue her appeal. Therefore, a remand was request so that the Veteran may be afforded a chance to attend a medical examination. In view of the foregoing, the Board finds that the Veteran's accredited representative has indicated that there was good cause for her failure to report for the scheduled December 2011 VA medical examination. Therefore, the Board finds that the case should be remanded to provide her with another opportunity to report for such an examination. The Board notes that the prior remand directives asked that VA treatment records dating since January 2006 be requested. However, in the request for records, the AMC searched appeared to only search for records from January 2006 to May 2007. It is unclear whether there are no records after that date or whether the search was limited inexplicably. Thus, relevant VA treatment records dating from May 2007 to the present should be requested, in addition to any other relevant ongoing medical records. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be asked to provide the names and addresses of all medical care providers who have recently treated the Veteran for hepatitis. After securing any necessary release, the AMC/RO should obtain those records not on file. If requested records are not available, the Veteran should be notified of such. Additionally, relevant VA treatment records dating from May 2007 to the present from the New York Healthcare system should be requested. If any records do not exist or are unavailable, the Veteran should be notified of such. 2. After obtaining any additional records to the extent possible, the Veteran should be afforded a hepatitis examination by a physician to evaluate the current nature of her hepatitis and to obtain an opinion as to whether such is possibly related to service. The claims folder must be made available to the examiner for review in conjunction with the examination. Following evaluation of the Veteran, the examiner must express an opinion whether it is more likely (greater than 50% probability), less likely (less than 50% probability), or at least as likely as not (50/50 probability) that any current hepatitis C disability initially manifested during the Veteran's period of active service or was caused by service to include exposure during her work as a nurse, and/or exposure via air inoculation gun. In rendering the opinion, the examiner should discuss the significance of the notation in the record of 1970 (pre-service) hepatitis treatment with no sequela reported and her pre-service work as a clinic nurse until 1984. A complete rationale for any opinion expressed should be provided. 3. After completing any additional development deemed necessary, the AMC/RO should readjudicate the issue on appeal in light of any additional evidence added to the records assembled for appellate review. If the benefits requested on appeal remain denied, the Veteran and her representative should be furnished a Supplemental Statement of the Case (SSOC) and provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. 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). _________________________________________________ K. A. BANFIELD 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).