Citation Nr: 1324671 Decision Date: 08/02/13 Archive Date: 08/13/13 DOCKET NO. 11-13 696 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for hepatitis C, for accrued benefits purposes. REPRESENTATION Appellant represented by: Robert W. Gillikin, II, Attorney ATTORNEY FOR THE BOARD E. Joyner, Counsel INTRODUCTION The Veteran served on active duty from November 1972 to June 1975. He died in December 2011. The Appellant is his surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal of a December 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which denied entitlement to service connection for hepatitis C. The Veteran perfected an appeal of the December 2009 decision prior to his death. Jurisdiction of the case currently resides with the Regional Office and Insurance Center in Philadelphia, Pennsylvania. In a January 2013 memorandum, the RO determined that the Appellant applied for and was a proper substitute as claimant with respect to an accrued benefits issue. As such, the Board finds that the Appellant has been substituted as the claimant with respect to the issue on appeal. See 38 U.S.C.A. § 5121A (West 2002 & Supp. 2012); 38 C.F.R. § 3.100(a)(5) (2012). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The Appellant contends that the Veteran's hepatitis C is the result of his having received air-gun injections during service. Specifically, in a November 2010 statement, the Veteran indicated that he received air gun inoculations while at Great Lakes, Illinois in 1972 to 1973. The Veteran also indicated that he had never been an alcoholic, had never abused alcohol, and had never used intravenous drugs or heroin. He further indicated that he had never had a blood transfusion prior to his liver transplant and never engaged in any lifestyle choices or activities likely to put him at risk of contracting hepatitis C. A review of the service treatment records reflects that the Veteran received four interdermal injections in January 1973 at Great Lakes, Illinois. The service treatment records also reflect that in September 1974 the Veteran complained of penile discharge and burning. The diagnosis was gonorrhea. A September 2008 private treatment record notes that the Veteran had last used cocaine one month earlier. He resumed drinking alcohol in 2007. He stated that he drinks about four beers a day. He denied intravenous drug use. A June 2009 private treatment record notes that the Veteran does not consume alcohol or smoke tobacco. He denied family history of liver disease. A July 2009 VA treatment record notes that the Veteran was first diagnosed with hepatitis C in 1992. An August 2009 VA treatment record reflects the Veteran's statement that he last used alcohol three months earlier. He attributed his decision to stop using alcohol to the cumulative effects of his brother and father who both died of liver disease. Prior to this period of abstinence the Veteran was consuming three to five drinks (combination of beer and liquor) on weekend evenings. He denied taking any substances, but later confirmed that he experimented with marijuana and cocaine, but said that he had not had any such substances since 2008. A September 2009 private treatment record notes that the Veteran claimed that he contracted hepatitis C from non-sterile pressure injectors during boot camp. He was diagnosed with hepatitis C years later and was found to have cirrhosis. He admitted to drinking a six pack of beer a week. VA has a duty to obtain a medical examination when the record contains competent evidence of a current disability or symptoms of a current disability; evidence establishing that an event, injury, or disease occurred in service; an indication that the disability or persistent or recurrent symptoms of a disability may be associated with service or a service-connected disability; and insufficient evidence to decide the case. 38 U.S.C.A. §5103A (West 2002); 38 C.F.R. §3.159(c)(4) (2010); McLendon v. Nicholson, 20 Vet. App. 79 (2006). If VA undertakes the effort to provide the Veteran with a medical examination, it must ensure that such exam is an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In this case there is competent medical evidence of a diagnosis of hepatitis C. In addition, there is competent and credible lay evidence that the Veteran received air-gun inoculations during service. Moreover, the Board finds that the Veteran's assertion that his hepatitis C was related to such airgun inoculations during service forms a sufficient basis to meet the third requirement in McLendon. In this regard, the Board notes that the Veterans Benefits Administration (VBA) has indicated that the risk factors for hepatitis C include intravenous (IV) drug use, blood transfusions before 1992, hemodialysis, intranasal cocaine, high-risk sexual activity, accidental exposure while a healthcare worker, and various kinds of percutaneous exposure such as tattoos, body piercing, acupuncture with non-sterile needles, shared toothbrushes or razor blades. VBA Fast Letter 98-110 (Nov. 30, 1998). Additional guidance for adjudicating hepatitis C claims has been published in VBA Fast Letter 04-13 (June 29, 2004). This guidance, in part, states that hepatitis C can be sexually transmitted (although the chance for sexual transmission of hepatitis C is well below comparable rates for HIV/AIDS or hepatitis B infection). The letter further states that while there is at least one case report of hepatitis B being transmitted by an air gun injection, thus far there have been no case reports of hepatitis C being transmitted by an airgun transmission. In conclusion, the Fast Letter finds that despite the lack of any scientific evidence to document transmission of hepatitis C with airgun injectors, "it is biologically plausible." VBA Fast Letter 04-13 (June 29, 2004). Finally, there is no medical opinion on the issue. As such, the Board finds that a remand is required in order to obtain a medical opinion to regarding the etiology of the Veteran's hepatitis C. Accordingly, the case is REMANDED for the following action: (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. Submit the claims file, to include a copy of this remand, to an appropriate VA examiner in order to determine the nature and etiology of the Veteran's fatal hepatitis C. The examiner must review the entire claims file, to include the service treatment records showing that the Veteran received four interdermal injections in January 1973, which should be assumed were through airgun injectors, as well as the September 1974 diagnosis of gonorrhea. Based on a review of the entire claims file, including the Veteran's service treatment records, post-service treatment records, and lay statements, the examiner is asked to opine whether it is at least as likely as not (50 percent or greater) that the Veteran's hepatitis C was due to his exposure to risk factors occurring during his active service. The examiner must specifically discuss, as appropriate, the September 1974 service treatment record noting the Veteran's complaints of a penile discharge and burning with a diagnosis of gonorrhea, and the injections using airguns. The examination report must include a discussion of all risk factors (both during and after service) presented by the Veteran as to whether or not these caused his current hepatitis C. All rendered opinions must be accompanied by a thorough rationale. If the examiner cannot render a requested opinion without resorting to speculation, the examiner must provide the reasoning for that determination. Additionally, the examiner must indicate whether the opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 2. Once the above actions have been completed, the RO must re-adjudicate the Appellant's claims on appeal, to include all relevant evidence submitted or obtained since the March 2011 statement of the case. If any benefit remains denied, a supplemental statement of the case must be provided to the Appellant and her representative. After the Appellant and her representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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). _________________________________________________ U. R. POWELL 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).