Citation Nr: 1314545 Decision Date: 05/02/13 Archive Date: 05/15/13 DOCKET NO. 03-35 894 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for hepatitis B. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran had active service from April 1966 to April 1969, including service in the Republic of Vietnam. For his service, the Veteran was awarded (among other decorations) the Purple Heart. This matter came before the Board of Veterans' Appeals (Board) on appeal from a January 2003 decision by the Department of Veterans Affairs (VA) Los Angeles, California Regional Office (RO). In November 2003 and May 2005 the Veteran requested a Travel Board hearing. Subsequently, however, he withdrew his request for a Travel Board hearing and requested that his claim be forwarded to the Board. His request for a hearing is thus considered waived. A review of the Virtual VA paperless claims processing system reveals documents that are either duplicative of the evidence of record or are not pertinent to the present appeal. In April 2013, the Veteran's representative stated that the Veteran was waiving initial RO review of evidence that he submitted since the last supplement statement of the case (SSOC) dated in February 2013. 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 Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. Remand is required to obtain an addendum etiological opinion. A Court or Board remand confers upon the appellant the right to compliance with that order. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Substantial, rather than strict, compliance is required. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). This appeal was remanded by the Board in September 2012. That remand requested development, including an examination and opinion regarding the Veteran's hepatitis B. The remand directed the examiner to address the Veteran's claimed in-service risk factors, to include exposure to blood and other bodily fluids and gammaglobulin injections. The VA examiner did not address the Veteran's in-service risk factors and merely stated that the Veteran did not have risk factors for hepatitis B except his service in an endemic region, ignoring the Veteran's assertions. A February 2001 record from UCLA Medical Center shows that the Veteran had a positive test for a hepatitis B virus core antibody. The examiner noted that one of the most common causes for a positive hepatitis B antibody test was a past infection with the hepatitis B virus, which may have occurred even if there were never any symptoms of hepatitis. The further stated that a few people with hepatitis B infections are capable of transmitting the virus to others through blood transfusion. In a January 2003 letter, the Veteran asserted in-service exposure to hepatitis B. Specifically, he stated that he was exposed to Marines who were killed and wounded in action, and that he was given gammaglobulin shots because hepatitis was widespread in his battalion. The Veteran submitted an internet article with his letter showing that gammaglobulin was given to people to make them temporarily immune from hepatitis. In a February 2003 letter, the Veteran stated that he had to help with the burning and disposal of human waste. Service treatment records (STRs) show that in September 1966, October 1966, and in August 1967 the Veteran was injected with a 5cc dose of gammaglobulin. In the September 2012 remand, the Board noted that the medical community recognizes several risk factors for hepatitis, including: organ transplants before 1992, transfusions of blood or blood products before 1992, hemodialysis, accidental exposure to blood by health care workers (to include combat medics or corpsman), intravenous drug use or intranasal cocaine use, high risk sexual activity, and other direct percutaneous (through the skin) exposure to blood such as by tattooing. On VA examination in December 2012, the examiner diagnosed hepatitis B and determined that the Veteran was asymptomatic. The examiner explained that laboratory tests showed that the Veteran had hepatitis B surface Ab and negative surface Ag. He noted that the Veteran some time before 2003 was exposed to hepatitis B and developed full immunity to hepatitis B. The examiner opined that the condition was less likely than not incurred in or caused by service based on the rationale that STRs did not show treatment for viral hepatitis and there is no treatment documented in the VA medical records. The examiner stated that while the Veteran had prior exposure to hepatitis, he developed an immunity and there was no material information showing when and how the Veteran was exposed to hepatitis B prior to 2003. The examiner concluded that there was no indication of a current condition and that there is not sufficient material information to establish a nexus between the Veteran's immunity to hepatitis B and the current hepatitis B condition. The examiner noted that the Veteran did not have risk factors for hepatitis B except his service in an endemic region. The December 2012 VA opinion is inconsistent with the February 2001 private examiner's opinion as the VA examiner based his conclusions on the absence of viral hepatitis in the STRs and the lack of continuous symptoms since service. As discussed above, the February 2001 private examiner at the UCLA Medical Center explained that a past infection with the hepatitis B virus may have occurred even if there were never any symptoms of hepatitis. Therefore an addendum opinion is necessary for the VA examiner to address the in-service risk factors and comment on the February 2001 private examiner's explanation that that a past infection with the hepatitis B virus may have occurred even if there were never any symptoms of hepatitis. Accordingly, the case is REMANDED for the following action: 1. Return the claims file to the examiner who conducted the December 2012 VA examination. If this examiner is not available, the Veteran's claim folder should be reviewed by another appropriate examiner. The claims file and a separate copy of this remand must be made available to and reviewed by the examiner. The examiner is asked to provide a rationale for the opinion rendered. If the examiner is not able to provide an opinion, he or she should explain why. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that Veteran's hepatitis B had its onset in service or is otherwise related to service? In rendering the opinion the examiner must comment on the following: * The Veteran's claimed in-service risk factors, including his exposure to blood and other bodily fluids during his active service. * The Veteran's multiple gammaglobulin injections during service, to include in September 1966, October 1966, and August 1967. * The Veteran's contention that he was given gammaglobulin shots during service because hepatitis was widespread in his battalion. * The private examiner's explanation in February 2001 that a past infection with the hepatitis B virus may have occurred even if there were never any symptoms of hepatitis. 2. If the benefit sought on appeal remains denied, issue the Veteran and his representative a SSOC before the claims file is returned to the Board. The Veteran 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. MILLIKAN Acting 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).