Citation Nr: 1337869 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 08-19 529A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for hepatitis-C. REPRESENTATION Appellant represented by: Allen Gumpenberger, Agent WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The Veteran served on active duty from August 1973 to January 1976 and from September 1976 to November 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In March 2010 the Veteran testified before the undersigned Veterans Law Judge in a hearing at the RO ("Travel Board" hearing). A transcript of his testimony is of record. The Board has twice remanded the case to the Agency of Original Jurisdiction (AOJ) for additional development, most recently in August 2012. The case has now been returned to the Board for further appellate action. The Veteran's representative submitted correspondence to the RO in May 2013 asserting entitlement to service connection for traumatic brain injury (TBI), service connection for a mental disorder including posttraumatic stress disorder (PTSD) and entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). These issues have not yet been adjudicated by the RO. Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The appeal is once again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required on his part. REMAND Unfortunately, the file contains new evidence and argument that requires the case to be once again remanded to the RO for development. In February 2013 the Veteran submitted to the RO, for the first time, a contention that he was exposed to hepatitis-C infection in service by inoculation via airgun injector. This theory of causation was not considered by the VA medical examiner in October 2010, and does not appear to have been considered by the RO in the most recent Supplemental Statement of the Case (SSOC) issued in April 2013. The Board may not base a decision on its own unsubstantiated medical opinion, but rather may reach a medical conclusion only on the basis of independent medical evidence or adequate quotation from recognized medical treatises. Colvin v. Derwinski, 1 Vet. App. 171 (1991). Because there is no medical opinion of record addressing the Veteran's new theory of causation, remand is required. Accordingly, the case is REMANDED for the following action: 1. Return the file to the physician who performed the VA examination in October 2010, if available, for an addendum opinion addressing whether the Veteran's assertion of having been inoculated by airgun during service, in conjunction with the risk factors previously considered, leads to a medical conclusion that it is at least as likely as not (i.e., at least 50 percent probable) that the Veteran was infected by the hepatitis-C virus during service. A new examination is not required. If the physician who performed the examination in October 2010 is no longer available, the opinion may be rendered by VA physician with similar or greater qualifications based on review of the file. The rationale for all opinions expressed should be provided, and if it is not possible to provide an opinion without resort to speculation, the reason that is so should be explained (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). 2. After the above has been completed to the extent possible and any additional development deemed necessary has been accomplished, the RO/AMC should readjudicate the claim on appeal. If the claim remains denied, the Veteran and his representative should be provided with an SSOC and provided an opportunity to respond. Thereafter, the case should be returned to the Board, if in order. 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). _________________________________________________ K. A. BANFIELD 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).