Citation Nr: 1332957 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 10-21 810 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for hepatitis C. 2. Entitlement to service connection for a right ankle disorder. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Michael J. Skaltsounis, Senior Counsel INTRODUCTION The Veteran had active service from February 1973 to April 1976. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the above claims. 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 With respect to the Veteran's claim for service connection for hepatitis C, the record reflects that the Veteran has consistently reported several in-service risk factors for hepatitis C, including being stuck by used needles while performing his duties as a medical technician, sharing needles with other drug users on at least two occasions, and inoculation injection needle exposure. Consequently, the Veteran was provided with an examination by a VA physician in March 2007, who concluded that the Veteran's chronic active hepatitis C was as likely as not contracted by sharing needles in the military. The Board finds, however, that the examiner's opinion was inadequate in several important respects. First, the examiner apparently based his opinion on the lack of documented evidence of the Veteran being stuck by needles during service, but there was also no documented evidence of the Veteran sharing needles with other drug users. Thus, if the examiner found the Veteran to be a credible historian with respect to the sharing of needles during service, it is unclear why he would not also find him to be a credible historian with respect to being stuck with needles in the process of performing his duties as a medical technician. The lack of documented evidence of treatment or exposure could also not serve as the sole basis for a negative opinion. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Accordingly, the Board finds that the Veteran should be afforded another appropriate examination and opinion by a new examiner to determine whether it is at least as likely as not that the Veteran's hepatitis C is related to the Veteran being stuck by needles while performing his duties as a medical technician in service. For the purpose of his or her examination/opinion, the new examiner should assume that the Veteran was stuck by several needles while performing his duties as a medical technician during service despite the lack of documented evidence because the undersigned Veterans Law Judge has found the Veteran's February 2013 testimony in this regard to be credible. Since the March 2007 examiner further concluded that the Veteran's bilateral ankle synovitis was caused by his hepatitis C, the issue of entitlement to service connection for a right ankle disorder will be held in abeyance pending the outcome of the development requested with respect to the claim for service connection for hepatitis C. Harris v. Derwinski, 1 Vet. App. 180 (1991). Finally, in his May 2010, the Veteran expressed the desire to have his military and personnel records sent to him, and there is no indication in the claims file that he was ever provided with these records. Therefore, if this has not yet been accomplished, while this case is in remand status, the Veteran should be provided with copies of his military and personnel records. Accordingly, the case is REMANDED for the following action: 1. If this has not yet been accomplished, provide the Veteran with copies of his military and personnel records. 2. The RO should arrange for the Veteran to be examined by an appropriate physician other than the March 2007 VA examiner to determine the likely etiology of his hepatitis C. The examiner should obtain a complete, pertinent history from the Veteran, review the Veteran's claims file (specifically noting his work as a medical technician during service), and provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that the Veteran's hepatitis C had its onset in, or resulted from risk factors for such disease during, his service. The examiner should explain the rationale for all opinions given and for the purpose of this examination/opinion, he or she should assume that the Veteran was stuck by several needles while performing his duties as a medical technician during service. 3. The RO should then review the entire claims file, arrange for any further development indicated based on the results of the development requested above, and then re-adjudicate the claims remaining on appeal. If any remains denied, the RO should issue an appropriate supplemental statement of the case, afford the Veteran the opportunity to respond, and the case should thereafter be returned to the Board for further 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). _________________________________________________ F. JUDGE FLOWERS 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) (2013).