Citation Nr: 1324422 Decision Date: 08/01/13 Archive Date: 08/13/13 DOCKET NO. 10-04 635 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for hepatitis C virus (HCV). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Eli White, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1969 to April 1971 and March 1975 to March 1979. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, with notice provided in January 2008. Jurisdiction over this matter was subsequently transferred to the New Orleans, Louisiana RO. 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 The Veteran contends he is entitled to service connection for HCV. He reports that was treated for viral hepatitis during active service. He denies the use of intravenous drugs in 1979 and at any time in service. Further evidentiary development is necessary before appellate review may proceed. The Veteran's service treatment records document that he was diagnosed and received treatment for hepatitis in service. The records additionally note that the Veteran was hospitalized for treatment for hepatitis in November 1976 and June 1977. Although service treatment records have been associated with the claims folder, the claims folder does not contain any hospitalization records or evidence of any attempt to obtain such records. On remand, the RO must attempt to obtain these in-patient treatment records. 38 U.S.C.A. § 5103A(c) (West 2002); 38 C.F.R. § 3.159(c)(2) (2012). In addition, a VA medical examination is needed to determine the nature and etiology of the Veteran's HCV. VA has a duty to assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. § 5103A (West 2012); 38 C.F.R. § 3.159 (2012). A VA examination is necessary prior to final adjudication of a claim when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifested during an applicable presumption period for which the veteran qualifies, (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence of record for VA to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). With respect to the third factor above, the Court of Appeals for Veterans' Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the Veteran's service. McLendon, 20 Vet. App. at 83. In the present case, the Veteran has not been afforded a VA examination addressing his current service connection claim for HCV. As an initial matter, the current medical evidence of record shows that the Veteran was diagnosed with and received treatment for HCV contemporaneous to the filing of his claim. In addition, the Veteran's service treatment records establish he was diagnosed and treated for viral hepatitis during active service. The Veteran further notes that in-service lab reports document the presence of treponema pallidum spirochetes, which can develop into hepatitis. The evidence of record additionally indicates that the Veteran was exposed to risk factors associated with HCV in service. Specifically, service treatment records show that the Veteran got a tattoo on his left forearm while in service, and a private medical record purports that the Veteran abused intravenous drugs in 1979. This evidence is sufficient to satisfy the second factor for determining whether a medical examination is necessary. Additionally, this evidence also indicates that the Veteran's HCV may be associated with service, given that the Veteran was diagnosed and treated for hepatitis in service, was exposed to risk factors of HCV in service, and is currently diagnosed with HCV. Thus, the evidence meets the low threshold for the third factor set forth in McLendon, 20 Vet. App. at 83. Lastly, because there is no relevant medical nexus opinion associated with the claims file, there is insufficient competent medical evidence to decide the issue of entitlement to service connection for HCV. Accordingly, a remand is necessary to provide the Veteran with an examination to obtain the necessary medical opinion. While the further delay of this case is regrettable, due process considerations require such action. Accordingly, the case is REMANDED for the following action: 1. Submit an appropriate request to the National Personnel Records Center (NPRC) for any in-patient treatment records for the Veteran from the 5th Gen Hospital, Bad Cannstatt-Stuttgart, Germany, from June 1975 to June 1977, with particular attention to any records from November 1976 and June 1-7, 1977. Associate any responsive records with the Veteran's claims file. If such records are not available, written certification of such is required, and the Veteran must be notified. 2. After completing the above development, schedule the Veteran for an examination to determine the nature and etiology of his HCV. The claims file, including a copy of this Remand, must be provided to the examiner for review in conjunction with the examination, and the examiner should be directed to elicit a complete history from the Veteran, the details of which should be included in the examination report. The examiner must annotate his or her report as to whether the claims file was reviewed. While review of the entire file is required, attention is invited to the following particular records: (a) Service treatment records and lab results from November 1976 to June 1978 documenting the Veteran's diagnosis and treatment of viral hepatitis; (b) An April 1970 service treatment record laboratory report noting treponema pallidum spirochetes observed; (c) A July 1968 report of medical examination documenting that the Veteran was absent of any tattoos upon entering service and a subsequent January 1971 report of medical examination noting a tattoo on the Veteran's left arm; (d) A January 1977 service treatment records discussing the Veteran's report of past drug use; and (e) A September 2006 private medical treatment record discussing the Veteran's history of illness and purported intravenous drug abuse in 1979. Following examination, interview of the Veteran, and review of the claims file, the examiner should discuss the Veteran's risk factors for HCV (to include obtaining a tattoo, any past intravenous drug use, and any other risk factors elicited upon examination). The examiner should then provide an opinion as to whether it is at least as likely as not (a 50 percent or greater possibility) that the Veteran's HCV had onset in or is related to service, and specifically whether his HVC is related to any identified risk factor in service, to include getting a tattoo or the purported use of intravenous drugs. The examiner should provide a complete rationale for any and all conclusions reached. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 3. After ensuring that the requested actions are completed, readjudicate the claim on appeal. If the benefit sought is not granted, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond thereto. The record should then be returned to the Board for appellate review. The appellant 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). _________________________________________________ BETHANY L. BUCK 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).