Citation Nr: 1318116 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 09-25 721 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for hepatitis C. 2. Entitlement to service connection for liver disease (claimed as cirrhosis). 3. Entitlement to service connection for esophageal varices. REPRESENTATION Veteran represented by: J. Michael Woods, Attorney at Law WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran served on active duty from November 1973 to November 1976, and from August 1982 to February 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The case is currently under the jurisdiction of the RO in Muskogee, Oklahoma. In June 2011, the Veteran testified at a Board video conference hearing before the undersigned Veterans Law Judge sitting in Washington, DC. A transcript of the hearing has been associated with the Veteran's claims folder. In November 2011, the Board remanded the appeal for further development. In November 2012, after the issuance of the September 2012 supplemental statement of the case (SSOC), which was sent to the Veteran's representative of record at the time, he appointed an attorney as his representative. The appeal is REMANDED to the RO. VA will notify the Veteran if further action is required on his part. REMAND The Veteran contends that he developed hepatitis C, cirrhosis of the liver and esophageal varices as a result of in-service immunizations with air guns. In the November 2012 remand, the Board in part requested that the Veteran be afforded a VA examination to determine the etiology and onset date of his hepatitis C, cirrhosis of the liver and esophageal varices. He underwent an examination in December 2011. The examiner indicated that the Veteran's disorders were not incurred in or caused by service, including the immunizations with air gun injectors. The examiner stated that the risk factor associated with air gun injectors was far outweighed by the Veteran's social risk factors, which included two incidents of intravenous drug use, alcohol abuse, multiple sex partners and intranasal cocaine use. The examiner cited a medical research article noting injection drug use with shared needles or other paraphernalia as the most common source of hepatitis C virus infection. The examiner then stated that the Veteran had been diagnosed in July 2003 with cirrhosis of the liver secondary to alcoholism and that esophageal varices have since been identified and managed. In a May 2012 statement, the Veteran asserted that he never shared needles while using drugs. As that statement eliminates the most common source of hepatitis C virus infection, upon which the VA examiner relied in rendering his opinion, the claims file should be returned to the examiner to determine whether any change in the original opinion is warranted. With respect to the cirrhosis of the liver and esophageal varices, the Board notes that the medical evidence indicates that those disorders may also be due to hepatitis C and not just alcohol. Of note, an August 2003 VA treatment note reflects that the cirrhosis and varices are due to hepatitis C and alcohol. However, the examiner did not address such evidence. The Board notes that this distinction may be significant should the examiner find that the Veteran's hepatitis C was caused by the in-service immunizations. Thus, on remand, the examiner should discuss that evidence. Prior to obtaining the addendum, any outstanding VA medical records should be obtained. The record contains treatment notes from the Fayetteville VA Medical Center (VAMC) through May 2012 and the Little Rock VAMC through May 2012. Thus, any treatment notes since that time should be obtained. Accordingly, the case is REMANDED for the following actions: 1. Obtain any records of treatment from the Fayetteville and Little Rock VAMCs since May 2012. 2. Thereafter, arrange for the Veteran's claims file to be reviewed by the examiner who completed the December 2011 VA examination for an addendum that addresses the following. If the above examiner is not available, then a suitable substitute may provide the requested opinion. If an examination is deemed warranted, then one should be scheduled. The examiner should provide an opinion on whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hepatitis C, cirrhosis of the liver and esophageal varices were incurred in or caused by service to include the immunizations with air guns. In rendering the opinion, the examiner should discuss the Veteran's assertion that he did not share needles while using drugs. The examiner should also discuss the medical evidence indicating that the Veteran's cirrhosis of the liver and esophageal varices are due to hepatitis C and alcohol. The examiner should consider any additional records added to the claims file since his last review. The examiner should clearly outline the rationale for any opinion expressed. If any requested opinion cannot be given, the examiner should state the reason why. 3. After completing the above, readjudicate the claims. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished an SSOC and given an opportunity to respond. 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). _________________________________________________ BARBARA B. COPELAND 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).