Citation Nr: 1324340 Decision Date: 07/31/13 Archive Date: 08/07/13 DOCKET NO. 13-15 821 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Entitlement to service connection for Hepatitis C. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Saira Spicknall, Counsel INTRODUCTION The Veteran served on active duty from January to December 1968. He appealed to the Board of Veterans' Appeals (Board/BVA) from an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In support of his claim, he testified at a hearing at the RO in June 2013 before the undersigned Veterans Law Judge of the Board (Travel Board hearing). A transcript of that hearing has been associated with the claims file. The Veteran indicated during his Travel Board hearing that he is on the list for a liver transplant, explaining that his Hepatitis C had caused complications, initially cirrhosis of his liver that eventually progressed to liver cancer. Because of this serious, potentially terminal, illness, the Board has advanced his appeal on the docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). Unfortunately, however, the claim requires further development before being decided on appeal, so the Board is REMANDING the claim to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND Although the Board sincerely regrets the further delay that inevitably will result from remanding, rather than immediately deciding, this claim, it is necessary to ensure it is fully developed and receives all due consideration. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c), (d) (2012). Based on his competent lay testimony under oath during his June 2013 Travel Board hearing, the Veteran received inoculations during his service from an air injector gun. See Washington v. Nicholson, 19 Vet. App. 363 (2005) (A Veteran is competent to report what occurred in service because testimony regarding firsthand knowledge of a factual matter is competent.). And the records of his evaluation and treatment since service confirm he has Hepatitis C (non-A, non-B). So resolution of this appeal turns on whether his Hepatitis C is the result of those inoculations in service - assuming they occurred as alleged - or, instead, due to something else entirely. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). Also during his hearing and in written statements he has submitted at other times during the course of this appeal, the Veteran denied having any other risk factors for Hepatitis C - namely, intravenous (IV) drug use, tattoos, blood transfusions, etc. And as further support for his claim, he has submitted copies of two other Board decisions granting claims for service connection for Hepatitis C on the premise those other Veterans also had contracted the disease from receiving inoculations during their service using an air injector gun. Although the Board strives for consistency in issuing its decisions, previously issued Board decisions will be considered binding only with regard to the specific case decided. Prior decisions in other appeals may be considered to the extent that they reasonably relate to the case, but each case presented to the Board will be decided on the basis of the individual facts of the case in light of applicable procedure and substantive law. See 38 C.F.R. § 20.1303 (2012) (nonprecedential nature of Board decisions). A medical nexus opinion therefore is needed to assist in determining the etiology of the Veteran's Hepatitis C, but especially in terms of the likelihood it is the result of the inoculations he received during his service from the air injector gun. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159()(4). See also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); Locklear v. Nicholson, 20 Vet. App. 410 (2006); Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Accordingly, this claim is REMANDED for the following additional development and consideration: (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. Obtain a medical nexus opinion concerning the etiology of the Veteran's Hepatitis C - but especially insofar as the likelihood (very likely, as likely as not, or unlikely) it was incurred during his military service from January to December 1968 or is otherwise related or attributable to any disease, event, or injury during his service, particularly his alleged inoculations with an air injector gun that he does not believe was properly sterilized. Please Note: The Veteran's lay testimony regarding his inoculations in service, in which an air gun injector was used and in his estimation only cleaned between every 10 to 15 persons, is competent evidence. The Board ultimately will have to determine whether his lay testimony concerning this also is credible to in turn ultimately have probative value. In the meantime, however, to facilitate making this important determination of causation, the claims file, including a complete copy of this remand and the potentially relevant findings in service, must be made available to and reviewed by the designated examiner for the complete history, so the opinion is fully informed. The examiner must annotate the examination report to indicate review of pertinent evidence in the claims file, including but not limited to the following: (a). The service treatment records (STRs). (b). The current medical evidence of record showing treatment for and a diagnosis of Hepatitis C. (c). Copies of other Board decisions dated in November 2005 and May 2008 indicating service connection for Hepatitis C was granted on the premise the Veterans in those other appeals had contracted the disease from inoculations during their service using an air injector gun. To reiterate, however, both of those other decisions were based on the specific facts pertaining to each case, and the appeal in this decision similarly must be based only on the facts of this particular case. See again See 38 C.F.R. § 20.1303 (2012) (regarding the nonprecedential nature of Board decisions). The Veteran submitted the copies of these other Board decisions in May and June 2013. (d). A copy of VBA Fast Letter 04-13 (June 29, 2004) pertaining to Hepatitis C. The RO/AMC should provide a copy of this letter to the examiner or include the letter with the claims file when sent to the examiner. (e). And although the Veteran denies it, the examiner is also asked to discuss whether the Veteran has any other risk factors for Hepatitis C and, if he does, specify them. It is imperative the examiner provide a comprehensive report of his findings - including explanatory rationale for all opinions expressed and conclusions reached, if necessary citing to specific evidence in the file. 2. Ensure the opinion is responsive to the question posed. If not, take corrective action to avoid another remand of this claim. 38 C.F.R. § 4.2 (2012); See Stegall v. West, 11 Vet. App. 268 (1998) (A Veteran is entitled to compliance with remand orders, and the Board errs as a matter of law in failing to ensure this compliance). Whether an actual physical examination of the Veteran is needed is left to the designee's discretion. But if it is determined that an examination is required (rather than provision of the requested opinion merely based on review of the claims file), then the Veteran is hereby advised that it is his responsibility to report for the VA examination, to cooperate with the development of his claim, and that the consequences for his failure to report for a VA examination without good cause include potentially denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). If an examination is scheduled and, without showing the required good cause, the Veteran does not report for the examination, then put a copy of the notice scheduling the examination in the file showing it was sent to his last known address prior to the date of the examination. It also must be indicated whether any notice that was sent was returned as undeliverable. 3. Then readjudicate this claim in light of this and all other additional evidence. If the claim continues to be denied, send the Veteran and his representative a supplemental statement of the case (SSOC) and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further consideration of this claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. 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). _________________________________________________ KEITH W. ALLEN 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).