Citation Nr: 1319683 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 05-18 147 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for a psychiatric disorder to include depression and schizophrenia. 2. Entitlement to service connection for liver disease to include hepatitis B. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. J. Wells-Green, Counsel INTRODUCTION The Veteran served on active duty from May 14, 1986, to June 25, 1986. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in January 2004 of Department of Veterans Affairs (VA) Regional Office (RO). In August 2006, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is the Veteran's file. In a decision in February 2007, the Board reopened and denied the Veteran's claims of service connection for a psychiatric disorder to include depression and for liver disease to include hepatitis B. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a Memorandum Decision in October 2008, the Court vacated that part of the Board's decision denying service connection for a psychiatric disorder and for liver disease. In April 2009, August 2010 and May 2012, the Board remanded the case for further development. The appeal is again REMANDED to the RO via the Appeals Management Center in Washington, DC. REMAND In its remand in May 2012, the Board noted an internal inconsistency in the VA examination in February 2012, applying the standard of proof regarding whether hepatitis B pre-existed service or not. There is no record in the Veteran's file that a second review was conducted as request by the Board. Since the requested development has not been completed, further action to ensure compliance with the remand directive is required. Stegall v. West, 11 Vet. App. 268(1998). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran either to submit or to authorize VA to obtain on his behalf private medical records, pertaining to treatment for liver disease, since 2011. 2. Arrange to have the Veteran's file reviewed by a VA physician, who has not previously rendered an opinion in the case, to address the following questions: Considering accepted medical principles, pertaining to the history, manifestations, clinical course, and character of hepatitis B: a). Whether on May 30, 1986, the 17th day of active service, symptoms of about a week's duration of a sore throat, runny nose, difficulty breathing, fever (98.3), headache, greenish-yellow productive cough with some bright colored blood, and a skipped heart beat with strenuous exercise (about 6 to 7 years duration), which were initially assessed as an upper respiratory infection (except for nasal congestion and drainage, there were no abnormal findings, cardiac rhythm was normal) were obvious signs of hepatitis B? In formulating the opinion the VA examiner is asked to consider the following facts: The service treatment records show that on follow-up on June 4, 1986, urinalysis appeared normal, there was some right-sided abdominal tenderness and the assessment was viral syndrome. On June 6, 1986, the Veteran's condition had improved. On June 10, 1986, the Veteran complained of back pain for two days when bending over and the assessment was myalgia. On June 13, the Veteran complained of vomiting for two days and the assessment was probable gastritis. After service, private medical records and records of the Social Security Administration show that in July and in August 1988 treatment records, the Veteran reported a history and a diagnosis of hepatitis B two years previously and that the hepatitis B surface antigen was positive. i). If it is obvious that the symptoms, beginning on May 30, 1986, were a manifestation of hepatitis B, is it also obvious that the hepatitis B infection pre-existed service, considering the incubation period for hepatitis B? ii). If it is obvious that hepatitis B pre-existed service, is it obvious that hepatitis B did not permanently increased in severity beyond the natural progression during service, that is, an irreversible worsening of hepatitis B beyond the natural clinical course and character of the condition as contrasted to a temporary worsening of symptoms, considering accepted medical principles pertaining to the history, manifestation, clinical course, and character of the pre-existing hepatitis B? (b). If the Veteran did not have pre-existing hepatitis B, is it more likely than not (probability greater than 50 percent), at least as likely as not (probability of 50 percent), less likely than not (probability less than 50 percent), or an opinion is not possible without resort to speculation, that the current hepatitis B is related to the symptoms documented in service from May 30, 1986 to June 13, 1986, considering accepted medical principles pertaining to the history, manifestation, clinical course, and character of hepatitis B? If, after a review of the record, an opinion on causation is not possible without resort to speculation, please clarify whether causation cannot be determined because there are several potential causes, when the in-service findings are not more likely than any other to cause of hepatitis B and that an opinion on causation is beyond what may be reasonably concluded based on the evidence of record and current medical knowledge, that is, there is no other test or records, if procurable, that would facilitate a more conclusive opinion, considering current medical knowledge and, if necessary, after a review of the medical literature. 3. Thereafter, adjudicate the claim of service connection for liver disease to include hepatitis B. If the additional evidence has a bearing on the claim of service connection for a psychiatric disorder, including secondary service connection, adjudicate the claim. If any benefit is denied, furnish the Veteran a supplemental statement of the case and return the case to the Board. The Veteran appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The claims 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). _________________________________________________ George E. Guido Jr. 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).