Citation Nr: 1316949 Decision Date: 05/23/13 Archive Date: 05/31/13 DOCKET NO. 06-30 214 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for liver cancer, to include as due to exposure to herbicides. 2. Entitlement to service connection for hepatitis C. 3. Entitlement to service connection for chronic fatigue syndrome (CFS). 4. Entitlement to service connection for pruritis. REPRESENTATION Appellant represented by: Mr. John S. Berry, Attorney at Law ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1970 to February 1972. These matters come to the Board of Veterans' Appeals (Board) from a July 2012 Order by the United States Court of Appeals for Veterans Claims (Court), which endorsed a July 2012 Joint Motion for Remand, vacated a December 2011 Board decision denying entitlement to service connection for hepatitis C, chronic fatigue syndrome, pruritis, and liver cancer, and remanded the matter for action complying with the joint motion. As a matter of background, the matters were initially before the Board on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In October 2008, the Board denied the Veteran's application to reopen his claim for service connection of hepatitis C, as well as denied his claims for service connection of CFS and pruritis, including as secondary to hepatitis C. The Board also denied claims for service connection of erectile dysfunction and for an increased evaluation of posttraumatic stress disorder (PTSD). The Veteran appealed the Board's decision to the Court. In an August 2010 memorandum decision, the Court vacated the Board's denial of the Veteran's application to reopen the claim for service connection of hepatitis C, as well as his claims for service connection of CFS and pruritis and remanded them to the Board. The Court affirmed the Board's decision with respect to the denial of the claim for service connection of erectile dysfunction and for an increased evaluation of posttraumatic stress disorder (PTSD). In April 2011, the Board referred the case to the Veterans Health Administration ("VHA") for a medical opinion concerning the Veteran's claim for service connection of hepatitis C. In June 2011, the opinion was received and associated with the claims folder; the Veteran and his attorney were subsequently furnished a copy of the opinion and advised that the appellant had 60 days to submit relevant evidence or argument in response. See 38 C.F.R. §§ 20.901, 20.903 (2012). In September 2011, the Veteran submitted further written arguments in support of the claim. This letter was accompanied by the Veteran's response to the Medical Opinion Response Form, on which he indicated that he wished for his case to be remanded to the Agency of Original Jurisdiction (AOJ) for initial consideration of the new evidence he submitted. In the December 2011 decision, the Board reopened the Veteran's claim for service connection of hepatitis C, but denied the underlying matter as well as the claims for service connection for chronic fatigue syndrome, pruritis, and liver cancer. The Veteran appealed this denial, giving rise to the July 2012 Joint Motion and Court Order that have returned the matter to the Board. In the July 2012 Joint Motion, the parties argued that the Board failed to ensure that the duty to assist was satisfied when it did not remand the case to the Agency of Original Jurisdiction (AOJ) for initial consideration, or determined that no prejudicial effect resulted from not remanding the case for the AOJ to consider the additional 2011 statements from the Veteran and his representative in the first instance, as allowed under 38 C.F.R. § 20.1304(c) (2012). 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 light of points raised in the joint motion, and the Board's review of the claims file, the Board finds that further VA action on the claim on appeal is warranted. In the joint motion, the parties agreed that the Board failed to ensure that the duty to assist was satisfied when it did not remand the case to the Agency of Original Jurisdiction (AOJ) for initial consideration, or determined that no prejudicial effect resulted from not remanding the case for the AOJ to consider the additional 2011 statements from the Veteran and his representative in the first instance, as allowed under 38 C.F.R. § 20.1304(c) (2012) and specifically requested by the Veteran. In addition, since the August 2012 Court Order, the Veteran's representative has submitted additional medical treatises on the prevalence of hepatitis C in Vietnam veterans that has not been considered by the AOJ. See attachments to the Veteran's Representative's March 2013 written arguments. The Veteran has again requested initial consideration of this evidence. See 38 C.F.R. § 20.1304(c)(2012). As no waiver was submitted with this evidence, and it is not duplicative of the prior evidence of record, the Board may not review it at this time. Thus, remand is indicated to afford consideration of this additional evidence as well as any additional evidence to be obtained. 38 C.F.R. § 20.1304 (2012). Accordingly, the case is REMANDED for the following action: After undertaking any other development deemed necessary, to include another VA examination, the RO/AMC should review the additional evidence received since the previous August 2010 Court Order to determine whether the Veteran's claims for hepatitis C, chronic fatigue syndrome (CFS), and pruritis can be granted. If the benefits sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case (SSOC) and provided an appropriate period of time for response. 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). _________________________________________________ MICHAEL LANE 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).