Citation Nr: 1316773 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 10-35 558 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from November 1952 to September 1954. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Jurisdiction over the claims file is currently held by the RO in Nashville, Tennessee. In November 2011, the Board denied the claim for entitlement to service connection for hepatitis C. The Veteran appealed this denial to the Court of Appeals for Veterans Claims (Court). In September 2012, the Court granted a Joint Motion for Remand (JMR) filed by the parties, which requested that the November 2011 decision be vacated and remanded. The appeal has now returned to the Board for further action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 In accordance with the September 2012 JMR, the Board finds that a remand is necessary in this case for additional evidentiary development. VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The threshold for getting an examination under the VCAA is low. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Veteran contends that service connection is warranted for hepatitis C as it was incurred during active duty service. In statements dated throughout the appeal, the Veteran reported that he was exposed to hepatitis C during military service when he received inoculations with needles that had been used on other soldiers. A February 2012 statement from another soldier reiterates the Veteran's contentions regarding the military's use of contaminated needles. The record also contains a December 2008 statement from the Veteran's private physician noting that the Veteran's reports of contaminated needles during service were the most likely source of his exposure to hepatitis C and could be the cause of the current disability. The Board finds that the medical and lay evidence in support of the claim is competent and sufficient to indicate that the Veteran's hepatitis C may be associated with active service. Thus, a VA examination is required by the duty to assist. Upon remand, the Veteran should be provided a VA examination with an appropriate medical opinion addressing the nature and etiology of the claimed hepatitis C. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Afford the Veteran an appropriate VA examination to determine the nature and etiology of the claimed hepatitis C. The Veteran's claims file must be made available to the examiner for review in connection with the examination. After physically examining the Veteran and reviewing the complete claim file, the examiner should determine 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), that the Veteran's hepatitis C was incurred due to any event during active duty service, to include the Veteran's inoculations with contaminated needles. The rationale for all opinions expressed should also be provided. For the purposes of the requested medical opinion, the examiner should assume that the Veteran received inoculations with needles that had been used on other soldiers. 2. Readjudicate the claim on appeal. If the benefit sought is not fully granted, issue a supplemental statement of the case before returning the case to the Board, if otherwise in order. The appellant 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 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). _________________________________________________ MILO H. HAWLEY 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).