Citation Nr: 1315915 Decision Date: 05/15/13 Archive Date: 05/15/13 DOCKET NO. 10-07 357 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Veteran represented by: New Jersey Department of Military and Veterans' Affairs ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active military service from February 1970 to November 1971. This appeal initially came to the Board of Veterans' Appeals (Board) from a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. 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. REMAND In this case the Veteran is seeking service connection for hepatitis C. In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran filed his claim in February 2008. In a January 2009 rating decision the RO denied the Veteran's claim, finding the evidence did not establish the Veteran's hepatitis C began during or was otherwise caused by his military service. The Veteran then timely appealed this matter to the Board. The evidence of record includes the Veteran's service treatment records, as well as VA post-service treatment records. The Board finds the medical evidence of record establishes the Veteran currently has chronic hepatitis C genotype 1 with low viral load. As such, the Board concedes the Veteran currently has a chronic disability. However, review of the record before the Board does not reveal any medical evidence which provided a nexus opinion regarding the Veteran's current hepatitis C and his military service. The Veteran was not provided with a VA examination in connection with this claim for service connection. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court of Appeals for Veterans Claims (Court) held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. With respect to the third factor above, the Court has stated that this element establishes a low threshold. Id. As discussed above, the medical evidence of record establishes the Veteran currently has chronic hepatitis C, satisfying the first element. Service treatment records were reviewed and do not establish the Veteran sought treatment for symptoms of hepatitis C while in service; however other evidence of record suggests he may have contracted the disease while in service. For example, both the Veteran's testimony and in service personnel records establish the Veteran abused drugs during his military service. Intravenous drug use and intranasal cocaine use are risk factors for hepatitis C. In addition, the records reflects that the Veteran was hospitalized for treatment of acute hepatitis, Australian antigen positive type, in August 1972, less than a year after he separated from military service. Finally, a December 2009 letter from a VA certified registered nurse practitioner stated that the Veteran was at risk for hepatitis C during his military service due to the military's use of a multi-dose immunization air gun during the Vietnam era. As such, the Board finds the record contains sufficient evidence to meet the low threshold of the third factor, that the evidence indicates there may be a nexus between the Veteran's current hepatitis C and his military service. Therefore, a medical examination is required. In addition, further review of the evidence of record suggests the presence of relevant additional records which are not associated with the Veteran's claims file. In a treatment record from May 2010 the Veteran stated he had an appointment that same day with SSI, Social Security income. As such, this statement by the Veteran suggests he may have applied for Social Security benefits. Unfortunately, the Social Security application and any decision, including the records upon which such a determination was made, are not yet of record. In addition, review of the record does not reveal any attempt has been made to search for the Veteran's Social Security records. Because these records may be relevant to the claim on appeal, the Social Security records should be obtained. See 38 U.S.C. § 5103A(c)(3); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). Similarly, in a June 2008 treatment note the VA nurse practitioner indicated he completed a Communicable Disease Reporting and Surveillance System Form regarding the Veteran's hepatitis C for the Cumberland County Health Department. In addition, in a January 2011 treatment record the Veteran reported he had an appointment with the Department of Social Services. As such, these treatment records suggest the Veteran's state and local governments may also have relevant records. Review of the record does not reveal any attempt has been made to locate potential records with the state of New Jersey or county of Cumberland. VA regulations provide the VA has a duty to assist by making a reasonable effort to obtain relevant records not in the custody of federal departments, including records from state and local governments. 38 C.F.R. § 3.159(c)(1). As such, the RO should also attempt to locate any records relating to the Veteran's hepatitis C with his state and local governments. Finally, and most importantly, the Board notes the January 2009 rating decision refers to a January 2009 VA treatment addendum opinion which provided a nexus opinion regarding the Veteran's hepatitis C. The medical opinion may fulfill the duty to obtain a VA medical opinion in this case, but the Board needs to review it. Careful review of the Veteran's file, including both his physical file and his file in the Virtual VA system, reveals this addendum opinion is not included in the file before the Board. However, this record would be highly probative in assessing the Veteran's claim. As such, all VA treatment records for the Veteran, including the January 2009 addendum opinion, need to be obtained and associated with the claims file before the Board. Accordingly, the case is REMANDED for the following actions: 1. Obtain copies of all medical treatment the Veteran has received at VA medical facilities, to include the January 2009 addendum opinion. Associate all VA treatment records with the claims file and make them available for review by the Board. 2. Obtain any records from the Social Security Administration, to include any award of disability benefits and any underlying records used in reaching the determination. All efforts to obtain Social Security records should be fully documented, and a negative response must be provided if records are not available. 3. Obtain any records from the New Jersey Department of Social Services and Cumberland County Health Department regarding the Veteran's hepatitis C, to include any award of disability benefits and any underlying records used in reaching the determination (if possible). All efforts to obtain state and local records should be fully documented, and a negative response must be provided if records are not available. 4. If, and only if, the January 2009 addendum opinion does not meet the requirements of a nexus opinion, provide the Veteran with a VA examination in order to provide a nexus opinion regarding his currently diagnosed chronic hepatitis C condition. The claims folder must be made available to the examiner for review in conjunction with the examination. Any required tests and studies must be accomplished, and clinical findings must be reported in detail and correlate to a specific diagnosis. The rationale for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and a rationale provided. Consistent with the factual history of the Veteran's hepatitis C condition, the examination should provide an opinion as to the following question: a) Is it as likely as not (50 percent or greater) that the Veteran's currently diagnosed chronic hepatitis C condition either began during or was otherwise caused by his active military duty? In answering this question the examiner should specifically consider the Veteran's drug use during service, his August 1972 treatment for acute hepatitis, Australian antigen positive type, and the military's use of a multi-dose immunization air gun during his military service. 5. After completion of the foregoing readjudicate the appeal. If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. The Veteran 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). _________________________________________________ JOHN J. CROWLEY 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) (2012).