Citation Nr: 1323188 Decision Date: 07/19/13 Archive Date: 07/24/13 DOCKET NO. 08-39 774 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a liver disability, to include hepatitis C and cirrhosis of the liver. 2. Entitlement to service connection for hepatitis C. 3. Entitlement to service connection for cirrhosis of the liver, to include as secondary to hepatitis C. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran (Appellant) and J. P. ATTORNEY FOR THE BOARD L.M. Yasui, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from January 1969 to March 1971. He also served in the Republic of Vietnam from September 1969 to September 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In August 2012, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, DC to schedule the Veteran for a Board hearing. The matter has properly been returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). In May 2013, the Veteran testified in a Videoconference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. After reviewing the contentions and evidence of record, the Board finds that the issues on appeal are more accurately stated as listed on the title page of this decision. Specifically, as the claim for service connection for a liver disability, to include hepatitis C and cirrhosis of the liver, is being reopened (as adjudicated herein), the Board finds that separate discussions of the claimed hepatitis C (addressed in the decision below) and the claimed cirrhosis of the liver (addressed in the Remand section below) are appropriate. In evaluating this case, the Board has not only reviewed the Veteran's physical claims file, but has also reviewed the Veteran's file on the Virtual VA system to ensure a complete assessment of the evidence. As discussed below, new and material evidence has been received to reopen the Veteran's previously denied claim of entitlement to service connection for a liver disability, to include hepatitis C and cirrhosis of the liver. Further development of the evidence is required before the Board can adjudicate the Veteran's claim of entitlement to service connection for cirrhosis of the liver, to include as secondary to hepatitis C. As such, the issue of service connection for cirrhosis of the liver, to include as secondary to hepatitis C, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. A May 2004 rating decision denied service connection for a liver disability, to include hepatitis C and cirrhosis of the liver (adjudicated as hepatitis C/liver condition), on the basis that there was no evidence of record showing that the conditions were related to service. 2. Additional evidence received since the May 2004 rating action on the issue of service connection for a liver disability, to include hepatitis C and cirrhosis of the liver, raises a reasonable possibility of substantiating the claim. 3. The Veteran engaged in combat with the enemy during the Vietnam War. 4. The Veteran was exposed to the blood of others during combat in active service. 5. The competent and credible evidence of record is in equipoise and the Veteran did not engage in intravenous drug use post service. 6. The Veteran's current hepatitis C is related to the in-service blood exposure. CONCLUSIONS OF LAW 1. The May 2004 rating decision is final. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for a liver disability, to include hepatitis C and cirrhosis of the liver. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 3. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for hepatitis C have been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). The application to reopen a claim of entitlement to service connection for a liver disability, to include hepatitis C and cirrhosis of the liver and service connection for hepatitis C have been considered with respect to VA's duties to notify and assist. Given the favorable outcomes noted above, further explanation of how VA has fulfilled the duties to notify and assist is not necessary. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Legal Criteria for Reopening Service Connection for Residuals of a Head Injury In general, rating decisions and Board decisions that are not timely appealed are final. See 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). If new and material evidence is presented or secured with respect to a claim that has been finally disallowed, the claim shall be reopened and reviewed. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. When a veteran seeks to reopen a final decision, the first inquiry is whether the evidence presented or secured since the last final disallowance of the claim is "new and material." The Veteran filed his application to reopen the previously denied claim for entitlement to service connection for a liver disability, to include hepatitis C and cirrhosis of the liver, in October 2007. Under the applicable version of 38 C.F.R. § 3.156, a claimant may reopen a finally adjudicated claim by submitting new and material evidence. "New" evidence is defined as evidence not previously submitted to agency decision-makers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The United State Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App 110 (2010). New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the AOJ by the Board without consideration in that decision in accordance with the provisions of 38 C.F.R. § 20.1304(b)(1)), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). If VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim as an original claim for benefits. 38 C.F.R. § 3.156(c). If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312, 314 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. The evidence is presumed credible for the purposes of reopening a claim, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992). Analysis of Reopening Service Connection for a Liver Disability The Veteran's claim for service connection for hepatitis C and a liver condition was denied in a May 2004 rating decision on the basis that there was no evidence relating the current conditions to his service. The RO acknowledged that it had reviewed service treatment records and VA treatment records from January 1997 to April 2003. The Veteran was notified of the May 2004 decision in a letter dated in that same month. The Veteran submitted a notice of disagreement in June 2004 and a statement of the case was provided to him in April 2005. The Veteran did not perfect his claim within the allowable period following the April 2005 statement of the case. In an October 2007 correspondence (which was also considered a claim to reopen), the Veteran indicated that he never received a correspondence in response to the June 2004 notice of disagreement. In this regard, the Board notes that in the absence of clear and convincing evidence to the contrary, the law presumes regularity of the administrative process. Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994) (citing Ashley v. Derwinski, 2 Vet. App. at 309 (1992). A statement from the claimant that he did not receive applicable notice is not enough to rebut the presumption. YT v. Brown, 9 Vet. App. 195, 199 (1996). Moreover, in connection with the mailing of correspondence and the presumption of regularity in the administrative process, the Court has held that VA may rely on the "last known address" shown of record, see Thompson v. Brown (Charles), 8 Vet. App. 169, 175 (1995), and that the burden is on the appellant to keep VA apprised of his whereabouts; if he does not do so, there is no burden on the part of the VA to "turn up heaven and earth to find [the appellant]." See Hyson v. Brown, 5 Vet. App. 262 (1993). Indeed, in this case, the Veteran's mailing address remained consistent throughout the claim and appeals process until 2011; as such, the Board finds that the Veteran did not properly perfect an appeal of the May 2004 rating decision. Further, no evidence was received within the year following the May 2004 letter notifying the Veteran of the May 2004 rating decision such that the provisions of 38 C.F.R. § 3.156(b) would apply; therefore, the May 2004 rating decision became final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. According to the May 2004 rating decision, the RO denied the Veteran's claim on the basis that there was no evidence of record which established that the condition was incurred in or caused by military service. The RO also noted that the service treatment records are negative for findings complaints, treatment, or diagnosis of a liver disability and no indication of exposure to known risk factors during military service. In October 2007, the Veteran filed an application to reopen service connection for a liver disability, to include hepatitis C and cirrhosis of the liver. Generally, it is appropriate for the Board to consider the claim as a request to reopen the previously denied claim rather than an original claim. Boggs v. Peake, 520 F.3d. 1330 (Fed. Cir. 2008). Since the May 2004 final disallowance, additional evidence has been added to the record. In the June 2004 statement (which was construed as a notice of disagreement to the May 2004 rating decision), the Veteran contended that he served in the Republic of Vietnam and was exposed to blood and body fluids. The Veteran underwent a VA examination in July 2011. At that time, after a comprehensive physical evaluation and a review of the claims file, the VA examiner rendered a positive nexus opinion regarding the relationship between the Veteran's current hepatitis C and his in-service exposure to blood. Subsequent to the July 2011 VA examination, VA treatment records from March 1972 were submitted for the record. The VA treatment record noted the Veteran's claim to have used heroin for a period of approximately two weeks before his hospitalization with a habit of $40 per day. Based on this report, an addendum medical opinion was obtained and a different VA examiner opined that the source of the hepatitis C is more likely the intravenous drug use and less likely the Veteran's exposure to blood during combat. In May 2013, the Veteran testified in a Videoconference hearing before the undersigned. There, he adamantly denied ever having used intravenous drugs, with the exception of the insulin injections he now takes for treatment of his diabetes. See hearing transcript at 9. The Veteran also testified that he was treated alongside other patients at the VA medical center in 1972, including one who was "strung out on heroin," and suggested that his history, as recorded in the March 1972 treatment report, is inaccurate and may have been confused with another patient. Id. at 4. For purposes of establishing whether new and material evidence has been submitted, the credibility of the evidence, and not its weight, is to be presumed. See Justus, 3 Vet. App. at 513. Because the Veteran's statements and his May 2013 testimony are not shown to be inherently false, they are presumed credible for the limited purpose of reopening the claim. Additionally, the Veteran is considered competent to attest to factual matters of which he had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Given this, and particularly in view of the Court's holding in Shade, the Board finds that the March 1972 VA treatment records, the July 2011 VA examination and the November 2011 VA opinion, and the contentions by the Veteran - not previously of record - represent evidence of a relationship between the current conditions and service, sufficient to reopen the Veteran's previously denied claim. As such, the additional evidence, considered in conjunction with the record as a whole, raises a reasonable possibility of substantiating his claim for service connection for a liver disability, to include hepatitis C and cirrhosis of the liver. See Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998) (where the Federal Circuit Court noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it would not be enough to convince the Board to grant a claim.). Based on the above, the Board finds that new and material evidence has been received to reopen the Veteran's previously denied claim of entitlement to service connection for a liver disability, to include hepatitis C and cirrhosis of the liver, and this claim is reopened. Service Connection - Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). In this case, hepatitis C is not a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303(b) do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr, 21 Vet. App. a 303. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). A veteran as a lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau at 1372). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the Veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Medical evidence that is speculative, general, or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). A physician's statement framed in terms such as "may" or "could" is not probative. See Warren v. Brown, 6 Vet. App. 4, 6 (1993). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment, including by a veteran. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Combat Rule In the case of a veteran who engaged in combat with the enemy in a period of war, lay evidence of in-service incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation. See 38 U.S.C.A. § 1154(b); Libertine v. Brown, 9 Vet. App. 521, 524 (1996); Collette v. Brown, 82 F.3d 389, 392-94 (Fed. Cir. 1996). The standard used to determine whether a veteran engaged in combat with the enemy is reasonable doubt, which is to be resolved in a veteran's favor. See VAOPGCPREC 12-99. The provisions of 38 U.S.C.A. § 1154(b), however, can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to a current disorder. See Libertine, 9 Vet. App. at 522-23. The provisions of 38 U.S.C.A. § 1154(b) do not establish service connection for a combat veteran; it aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service. Clyburn v. West, 12 Vet. App. 296, 303 (1999). In this case, the Veteran contends that he engaged in combat with the enemy and the evidence supports that assertion. Among other medals, the Veteran was awarded the Combat Infantryman Badge. U.S. Army regulations provide that this award denotes actively participating in active ground combat. See A.R. 600-8-22 (Rapid Action Revision, September 2011). Based on this evidence, the Board finds that the Veteran engaged in combat with the enemy during service, and the combat rule is applicable. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2012). Service Connection for Hepatitis C The Veteran contends that his hepatitis C originated in service. Specifically, he contends that he was exposed to blood from helping wounded, fellow servicemen during combat in service. Alternatively, he contends that hepatitis C was transmitted to him through the air gun inoculations he received during service. As the Board is granting service connection based on the Veteran's exposure to others' blood during service (adjudicated below), his contended alternate theory is rendered moot and will not be further discussed. After a review of all the evidence of record, lay and medical, the Board first finds the Veteran was exposed to the blood of others in service, including during combat. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). The Veteran is competent to describe his exposure the blood of others in service. The Board finds that his description of the exposure to others' blood in service is credible and consistent with his service, including combat service with associated exposure to wounded, fellow servicemen. The Board next finds that the competent and credible evidence of record is at least in equipoise as to whether the Veteran engaged in intravenous drug use post service. Evidence against the Veteran's claim is included in a March 1972 VA treatment record from the Indianapolis VA Medical Center (VAMC). At that time, the Veteran had been transferred from the Marion VAMC and the Veteran reported that he had service in Vietnam but did not use drugs there. He claimed to have used heroin for a period of approximately two weeks before his hospitalization at Marion VAMC with a habit of $40 per day. The Veteran was assessed with serum hepatitis, heroin addiction, and anxiety neurosis. However, favorable evidence includes the Veteran's statements during the July 2011 VA examination. At that time, upon questioning, the Veteran denied ever using injectable drugs. In addition, during the May 2013 hearing before the undersigned, the Veteran vehemently denied ever using intravenous drugs with the exception of insulin, which is used to treat his diabetes. Hearing transcript at 9. He also explained that he was treated alongside other patients at the Marion VAMC in 1972, including one who was "strung out on heroin," and suggested that his history, as recorded in the March 1972 treatment report, is inaccurate and may have been confused with the other patient. Id. at 4. Indeed, the only evidence of record indicating intravenous drug use, specifically heroin, is the March 1972 treatment report. . At the time of a July 1992 VA examination, the Veteran using marijuana after service but did not report intravenous drug use. In this regard, attempts to obtain the Veteran's VA treatment records from the Marion, Indianapolis VAMC from October 1971 to March 1972 have been made. In a December 2011 memorandum, a formal finding was made regarding the unavailability of those treatment records. The Board recognizes that it has a heightened duty to explain its findings and conclusions to the extent that there are, in fact, missing records, and to carefully consider the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). Given the evidence is in equipoise, the unavailability of the Veteran's VA treatment records from October 1971 to March 1972 at the Marion VAMC, and VA's heightened duty to carefully consider the benefit-of-the-doubt rule, the Board will resolve reasonable doubt to find that the Veteran did not engage in intravenous drug use post service. In addition, at the time of a July 1992 VA examination, the Veteran reported drug use in service consisting of marijuana, speed, LSD and barbiturates while in Vietnam, but did not indicate any intravenous drug use during service The Board next finds that the Veteran has a current disability of hepatitis C. The weight of the competent evidence is at least in relative equipoise on the question of whether the Veteran's current hepatitis C is related to service. In July 2011, the Veteran underwent a VA examination. The VA examiner noted that the Veteran had a tattoo prior to service but no indicators of hepatitis were found on the induction physical. While there is no corroborating evidence, the examiner noted that the Veteran reported contact with blood in service, which is likely to have occurred in a combat setting. Since his symptoms appeared relatively soon after service separation (approximately 10 months), the VA examiner opined that it would be as least as likely as not that the Veteran contracted hepatitis during service. Citing medical literature, the examiner explained that several studies suggest veterans have a higher prevalence of hepatitis C virus infection than nonveterans, possibly because of military exposures. An addendum medical opinion was obtained from a different VA examiner in November 2011 based on the receipt of the March 1972 VA treatment reports, which indicated the Veteran's report of heroin use. The November 2011 examiner opined that the intravenous drug use is more likely the source of the Veteran's hepatitis C and less likely the exposure to blood of others during combat. The Board finds that the November 2011 VA medical opinion, while competent, is of no probative weight as the examiner, in rendering his opinion, relied on the premise that the Veteran used intravenous drugs post service. Reonal, 5 Vet. App. at 461 (medical opinion based upon an inaccurate factual premise has no probative value). As indicated, with reasonable doubt resolved in the Veteran's favor, the Board has found that the Veteran did not engage in intravenous drug use; therefore, intravenous drug use is not a factor the VA examiner should have considered. The Board finds that there is competent evidence of a relationship between the Veteran's currently diagnosed hepatitis C and active service. Specifically, the July 2011 VA examiner's opinion is competent and probative medical evidence because it relies on accurate facts and gave a fully articulated opinion that is supported by a sound reasoning. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for hepatitis C have been met. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for a liver disability, to include hepatitis C and cirrhosis of the liver. Service connection for hepatitis C is granted. REMAND A remand is required in this case to ensure that there is a complete record upon which to decide the Veteran's claim of service connection for cirrhosis of the liver so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d) (2012). As adjudicated above, service connection is now granted for hepatitis C. Service connection is also permitted for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439, 448 (1995). With respect to the service connection claim for cirrhosis of the liver, regardless of whether a claimant has explicitly raised a secondary service connection claim, VA must consider such a theory of entitlement if it is raised by the record. See Schroeder v. West, 212 F. 3d 1265, 1271 (Fed. Cir. 2000) (holding that VA has an obligation to explore all legal theories, including those unknown to the veteran, by which he can obtain a benefit sought for the same disability); see also Floyd v. Brown, 9 Vet. App. 88 (1996) (VA must consider all possible theories of entitlement raised by the evidentiary record). The Veteran was afforded a VA examination of the liver in July 2011 and an addendum medical opinion was obtained in November 2011. As to the Veteran's claim of service connection for cirrhosis of the liver, to include as secondary to the service-connected hepatitis C, the Board finds the opinions inadequate to render a decision on this claim on appeal. The VA examiners did not opine on the etiology of the Veteran's cirrhosis of the liver and specifically did not address whether the cirrhosis of the liver is aggravated by the service-connected hepatitis C. In this regard, once VA undertakes the effort to provide an examination in a service connection claim, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Stefl v. Nicholson, 21 Vet. App 120 (2007). Thus an addendum VA medical opinion is necessary. Accordingly, the issue of service connection for cirrhosis of the liver, to include as secondary to the service-connected hepatitis C, is REMANDED for the following action: 1. If possible, request that the physician who conducted the July 2011 VA examination review the claims file and provide an addendum medical opinion. The claims file, including a copy of this Remand, must be made available to, and be reviewed by, the examiner. The examiner should note such review in the examination report (another examination of the Veteran is not required). 2. If the July 2011 examiner is not available, obtain the requested opinion from another medical professional. If the examiner determines that an additional examination of the Veteran is necessary to provide a reliable opinion as to causation and aggravation, such examination should be scheduled. However, the Veteran should not be required to report for another examination as a matter of course, if it is not found to be necessary. The claims folder must be made available to and reviewed by the examiner. The examiner should offer the following opinions: a) Is it at least as likely as not (50 percent probability or greater) that any cirrhosis of the liver, had its onset in service or is otherwise related to service? b) Is it at least as likely as not (50 percent probability or more) that the cirrhosis of the liver is proximately due to, or aggravated by, the service-connected hepatitis C. If the VA physician finds that the cirrhosis of the liver is aggravated by the service-connected hepatitis C, he/she should indicate, to the extent possible, the degree of disability before aggravation and the current degree of disability. The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. A rationale should be given for all opinions and conclusions rendered. The opinions should address the particulars of this Veteran's medical history and the relevant medical science as applicable to this claim. If an opinion cannot be rendered without resorting to speculation, the examiner should state whether the inability to provide an opinion was due to a need for further information (with said needed information identified) or because the limits of medical knowledge had been exhausted regarding the etiology of the disorder. 3. When the development requested has been completed, readjudicate the claim of service connection for cirrhosis of the liver on the basis of the additional evidence. If the benefit sought is not granted, the Veteran and his representative, if any, should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran 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). ____________________________________________ K.J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs