Citation Nr: 1342376 Decision Date: 12/23/13 Archive Date: 12/31/13 DOCKET NO. 10-11 402 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for hepatitis C. (The issues of entitlement to service connection for a cervical spine disability and entitlement to an increased rating for a lumbar spine disability are the subject of a separate Board decision.) REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jennifer Hwa, Counsel INTRODUCTION The Veteran had active service from April 1973 to October 1973 and from October 1974 to March 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which denied the Veteran's claim for service connection for hepatitis C. In April 2011, the Veteran testified at a travel board hearing before the undersigned. A transcript of this hearing has been associated with the claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND The Veteran contends that he incurred his hepatitis C during service when he received inoculations. Specifically, he alleges that he was given air gun injections with contaminated vaccine at the time of his entry into service. A May 1998 private medical report showed that the Veteran's hepatitis C virus antibody was repeatedly reactive. A July 2002 letter from the VA medical center revealed that the Veteran's blood test had been positive for hepatitis C. In a July 2004 private medical record, the Veteran was noted to have been diagnosed with hepatitis C in 1999. He reported being told that numerous Marine Corps personnel in his unit had been diagnosed with hepatitis C and that it was related to infected vaccination material. The physician noted that she had no confirmation of this statement. The Veteran testified before the Board at a travel board hearing in April 2011. Testimony revealed, in pertinent part, that the Veteran felt that he had contracted the hepatitis C virus during service when multiple soldiers were given inoculations in the shoulders. The Veteran testified that one of his VA physicians had informed him that during the Veteran's period of service in the Marine Corps, the vaccine that had been used to inoculate the soldiers had been contaminated. He reported that his VA physician had estimated that a quarter of a million soldiers had been exposed to the hepatitis C virus in this way. Given that the Veteran has reported consistently (even prior to filing his claim for service connection) that he had been told by his VA physician that the in-service contaminated vaccination material caused him to contract hepatitis C, the Veteran should be afforded appropriate VA examination to determine the etiology of his hepatitis C. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The RO/AMC also should attempt to obtain the Veteran's up-to-date VA and private treatment records. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and/or his service representative and ask him to identify all VA and non-VA clinicians who have treated him for hepatitis C since his service separation. Obtain all VA treatment records which have not been obtained already. Once signed releases are received from the Veteran, obtain all private treatment records which have not been obtained already. A copy of any records obtained, to include a negative reply, should be included in the claims file. 2. Schedule the Veteran for appropriate VA examination to determine the nature and etiology of his hepatitis C. The claims file and a copy of this remand must be provided to the examiner for review. All appropriate testing should be conducted. The Veteran should be asked to provide a complete medical history, if possible. Based on a review of the claims file and the results of the Veteran's physical examination, and the Veteran's statements regarding the development and treatment of his claimed disorder, the examiner is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that hepatitis C, if diagnosed, is related to active service or any incident of service, to include his report of receiving inoculations which contained contaminated vaccine. A complete rationale must be provided for any opinions expressed. If any requested opinion cannot be provided without resorting to speculation, then the examiner should explain why. The examiner is advised that the Veteran contends that he incurred hepatitis C during active service, including as a result of receiving inoculations which contained contaminated vaccine at service entrance. The examiner also is advised that the lack of in-service complaints of or treatment for hepatitis C is not persuasive evidence that it did not occur during active service. 3. The Veteran should be given adequate notice of the requested examination which includes advising him of the consequences of his failure to report to the examination. If he fails to report to the examination, then this fact should be noted in the claims file and a copy of the scheduling of examination notification or refusal to report notice, whichever is applicable, should be obtained by the RO and associated with the claims file. 4. Review all evidence received since the last prior adjudication and readjudicate the Veteran's claim. If the determination remains unfavorable to the Veteran, then the RO should issue a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issue. An appropriate period of time should be allowed for response by the Veteran and his service representative. Thereafter, the case should be returned to the Board for further appellate consideration, 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. 2013). _________________________________________________ MICHAEL T. OSBORNE Acting 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).