Citation Nr: 1337645 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 06-37 051 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The Veteran served on active duty from October 1967 to May 1970, including service in Vietnam. This matter originally came to the Board of Veterans' Appeals (Board) from a September 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. A January 2012 Board decision denied service connection for tinnitus and hepatitis C. The January 2012 denial of service connection for hepatitis C was vacated and remanded back to the Board in an August 2012 Order by the United States Court of Appeals for Veterans Claims (Court), pursuant to a Joint Motion for Partial Remand (Joint Motion). The Board's denial of service connection for tinnitus was not disturbed by the Joint Motion. In April 2013, the Board remanded the issue on appeal to the RO to obtain a VA examination with nexus opinion. This appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The Board remanded this case to the RO in April 2013, in accordance with the Joint Motion, to obtain a VA evaluation of the Veteran's hepatitis C with a nexus opinion that was to include a discussion of the Veteran's contentions that he shared tooth brushes and razor blades with other soldiers and that he was exposed to the blood of a dead soldier who was a known heroin user. A VA evaluation was obtained in June 2013, in which the examiner diagnosed hepatitis C and concluded that this disability was not causally related to service because there was no clear evidence of exposure in the Veteran's claims file. This opinion does not include a discussion of the Veteran's contentions noted above, as directed by the Board's April 2013 remand. The Courts have held that RO compliance with a remand is not discretionary, and that if the RO fails to comply with the terms of a remand, another remand for corrective action is required. Stegall v. West, 11 Vet. App. 268 (1998). As the June 2013 nexus opinion did not include a discussion of the Veteran's relevant contentions, the Board agrees with the October 2013 contention on behalf of the Veteran that there has not been adequate compliance with the terms of the Board's April 2013 remand. Id. Consequently, another remand of this case for additional development is warranted. Accordingly, the case is REMANDED for the following action: 1. The VA examiner who evaluated the Veteran for hepatitis C in June 2013 will be requested to again review the evidence of record and provide an additional opinion, with a clear rationale based on the evidence of record, on whether the Veteran's current hepatitis C is at least as likely as not (50 percent probability or more) caused by or aggravated by service. The examiner must include a discussion of the Veteran's contentions that he shared tooth brushes and razor blades with other soldiers and that he was exposed to the blood of a dead soldier who was a known heroin user. The examiner should also discuss the relevance of VA treatment records dated in May 2013, in which it is noted that the Veteran's hepatitis C is possibly linked to air gun vaccinations, as he has no history of intravenous drug use or blood transfusions. If the examiner who provided the opinion in June 2013 is not available, the RO must obtain an opinion from another appropriate medical professional. If the reviewer determines that an additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled and the Veteran informed as to the consequences for failure to report for a VA examination without good cause in accordance with 38 C.F.R. § 3.158, 3.655 (2013). However, the Veteran should not be required to report for another examination as a matter of course, if it is not found to be necessary. The rationale for all opinions expressed must be explained. The reviewer/examiner is advised that the term as likely as not does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of secondary service connection as to find against such. More likely and as likely support the contended relationship; less likely weighs against the claim. 2. After the above has been completed, the Veteran's claim will be readjudicated. If the benefit sought on appeal remains denied, a Supplemental Statement of the Case will be provided to the Veteran and his representative and they will be given an appropriate period of time in which to respond. The appeal will then be returned to the Board. 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). _________________________________________________ ROBERT C. SCHARNBERGER 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) (2013).