Citation Nr: 1341907 Decision Date: 12/18/13 Archive Date: 12/31/13 DOCKET NO. 05-09 354 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Barone, Counsel INTRODUCTION The Veteran served on active duty from September 1967 to July 1970, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a March 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. These matters were previously before the Board and were remanded in July 2010 (for additional development) and in June 2012 (to honor the Veteran's request for a new Board hearing). In March 2009, the Veteran testified at a Board hearing before a VLJ who was subsequently designated to serve as Acting Chairman of the Board (and thus unavailable to consider the appeal). The Veteran requested a new Board hearing and testified at the new Board hearing before the undersigned in August 2013. The record was held open for a period of 60 days to afford the Veteran an opportunity to submit additional records. Transcripts of both hearings are of record. 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 At a hearing before the undersigned Veterans Law Judge in August 2013, the Veteran submitted two signed and dated VA Forms 21-4142. One of these submissions identified ongoing treatment at VA medical facilities from the year 2010 through the present. The other submission identified that the Veteran currently receives ongoing treatment for his hepatitis C from a specified private provider (Dr. Ginn), and has been receiving treatment from this physician since January 2000. The Veteran had previously requested and authorized that VA obtain treatment records from this private provider in February 2005, and those private treatment reports were obtained at that time; however, both his August 2013 submission of the VA Form 21-4142 and his testimony during the August 2013 Board hearing expressly report that he has had ongoing treatment over the more than 8 years since VA last obtained records from the private provider. The Veteran has requested and authorized that VA obtain the updated hepatitis C treatment records from the private provider. VA is required to make reasonable efforts to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. See 38 U.S.C.A. § 5103A(b)(1); 38 C.F.R. § 3.159(c)(1). Additionally, the Board notes that the VA treatment records currently associated with the claims-file appear to have been last updated in 2010. To the extent that the Veteran's August 2013 submissions request that records from ongoing VA treatment (from Fresno, California VA Medical Center) of hepatitis C since 2010 be associated with the claims-file, the RO should also obtain the outstanding VA treatment records and associate them with the claims-file. In Bell v. Derwinski, 2 Vet. App. 611 (1992), the United States Court of Appeals for Veterans Claims (Court) held that VA has constructive notice of VA generated documents that could reasonably be expected to be part of the record, and that such documents are thus constructively part of the record before the Secretary and the Board, even where they are not actually before the adjudicating body. Accordingly, attempts must be made to obtain all treatment records regarding the Veteran from the VA Medical Center in Fresno, California dated subsequent to December 2010. Finally, the Veteran's testimony at the August 2013 Board hearing made reference to medical examinations he underwent in the early 1970s and the following years in connection with his post-service employment. Discussion on the record at the August 2013 Board hearing referred to records of these examinations as potentially important to the Veteran's appeal. The Veteran expressed that he would attempt to obtain documentation of these examination reports and submit them to the Board for consideration in this appeal. To date, these records have not been received. During the processing of this remand, the RO shall have the opportunity to assist the Veteran in attempting to obtain these medical reports. Accordingly, the case is REMANDED for the following action: 1. Using the August 2013 VA Form 21-4142 authorizing VA to obtain the records (or, if the August 2013 release has expired, secure a new appropriate medical release), obtain and associate with the record copies of all medical reports (those not previously associated with the claims file in 2005) of the Veteran's treatment from Dr. Patrick D. Ginn, M.D. The RO/AMC must make two attempts for the relevant treatment records or make a formal finding that a second request for such records would be futile. See Pub. L. No. 112-154, § 505, 126 Stat. 1165, 1193 (2012). All development efforts should be associated with the record. 2. Request that the Veteran identify any other private or VA treatment he may have received for his hepatitis C. After obtaining the appropriate release of information forms where necessary, procure records of any treatment the Veteran has received. In particular, the Veteran should be asked to provide releases for VA to obtain outstanding medical records from the sources previously identified by the Veteran, including medical records from his employment at the California Department of Forestry (particularly the reports of described medical examinations from the first years of such employment in the 1970s). If any such records identified by the Veteran are not available, he should be so informed in accordance with the provisions of 38 C.F.R. § 3.159(e). The RO/AMC must make two attempts for the relevant medical records or make a formal finding that a second request for such records would be futile. See Pub. L. No. 112-154, § 505, 126 Stat. 1165, 1193 (2012). All development efforts should be associated with the record. 3. Associate with the claims-file copies of the Veteran's outstanding recent VA medical records (those not already in the claims folder) concerning his claimed treatment for hepatitis C since 2010 from the VA Medical Center in Fresno, California. 4. After any other development deemed necessary, the RO/AMC should then readjudicate the claim on appeal in light of all of the evidence of record. If the issue on appeal remains denied, the Veteran should be provided with a supplemental statement of the case as to the issue on appeal, and afforded a reasonable period of time within which to respond thereto. 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. 2013). _________________________________________________ JOAQUIN AGUAYO-PERELES 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).