Citation Nr: 1332843 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 06-15 518 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for hepatitis C (or non-A, non-B hepatitis). REPRESENTATION Veteran represented by: Daniel G. Krasnegor, Attorney ATTORNEY FOR THE BOARD Shauna M. Watkins INTRODUCTION The Veteran had active service from January 1971 to November 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision of a U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In July 2010, the Board issued a decision denying service connection for hepatitis. The Veteran appealed the denial to the U.S. Court of Appeals for Veterans Claims (Court) and, in a February 2012 memorandum decision, the Court vacated the Board decision and remanded the issue for further development. In January 2013, the Board remanded the issue to the RO via the Appeals Management Center (AMC) in Washington, DC, to schedule the Veteran for a hearing. The Veteran's attorney notified VA in March 2013 that the Veteran no longer desired to be scheduled for a hearing. The case was then returned to the Board. In a June 2013 decision, the Board dismissed the Veteran's appeal upon finding that he had passed away. However, as pointed out by the Veteran's representative, it was another Veteran with the same first and last name that also served in the United States Marine Corp during the Vietnam War that in fact passed away. The birthdates of these Veterans are clearly different and the dismissal of this case was in error. Thus, in an August 2013 decision, the Board vacated its June 2013 decision. The Veteran's Virtual VA paperless claims file has been reviewed in preparing this remand, along with his paper claims file. The appeal is REMANDED to the VA RO. VA will notify the Veteran if further action is required. REMAND Inasmuch as the Board regrets the additional delay of this appeal, a remand is required before the claim can be properly adjudicated. The Veteran was previously afforded a VA examination and medical opinion in November 2007 to determine the nature and etiology of his hepatitis C. As pointed out by the Court in its February 2012 memorandum decision, the November 2007 VA examiner did not review or address the Veteran's May 2006 affidavit in which he stated that he had never shared needles during his in-service drug use and that he gotten a tattoo after being diagnosed with hepatitis C. The examiner also did not discuss or address the medical literature referred to by the Veteran's representative in a November 2008 Informal Hearing Presentation (IHP) and by the Veteran's attorney in the Appellant Brief for the Court. The Board has printed and associated this medical literature with the claims file. The Court found, and the Board agrees, that these discussions by the examiner are needed prior to the claim being decided on the merits, as the evidence in question is relevant to the Veteran's claim. Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, this claim must again be remanded for the RO/AMC to obtain a VA addendum medical opinion for the issue. The Veteran is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). Accordingly, the case is REMANDED for the following actions: 1. Ask the original November 2007 VA examiner to provide an addendum opinion, or if the VA examiner determines that it is necessary, schedule the Veteran for a VA examination with an appropriate expert to determine the etiology of his currently diagnosed hepatitis C. The VA examiner should thoroughly review the Veteran's VA claims file, to include his service treatment records, as well as a complete copy of this Remand in conjunction with the examination. The VA examiner should note that this action has been accomplished in the VA examination report. The examiner should specifically provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's currently diagnosed hepatitis C had its clinical onset during active service or is related to any in-service event, disease, or injury, to include in-service air-gun immunizations. In providing this opinion, the examiner should specifically address the Veteran's May 2006 affidavit and the medical literature, both contained in the claims file. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. If the examiner is unable to render an opinion without a resort to speculation, then the examiner must explain why this is so. 2. After the above action has been completed, readjudicate the Veteran's claim. If the claim remains denied, issue to the Veteran and his representative a Supplemental Statement of the Case (SSOC). Afford them the appropriate period of time within which to respond thereto. 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). _________________________________________________ B. MULLINS Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).