Citation Nr: 1325515 Decision Date: 08/12/13 Archive Date: 08/16/13 DOCKET NO. 08-16 518A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for hepatitis C, to include as secondary to risk factors associated with service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Dale, Counsel INTRODUCTION The Veteran served on active duty from June 1964 to May 1967, with additional service in the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran subsequently expressed disagreement with this determination, and the present appeal ensued. In June 2010, the Veteran testified before the undersigned at a hearing held at the RO. A transcript of the hearing is associated with the Veteran's claims file. In June 2013, the Board remanded the Veteran's claim for further evidentiary development. The Board's June 2013 remand directives and the subsequent actions of the RO and VA Appeals Management Center (AMC) will be further discussed below. The Veteran's claim has been returned to the Board. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 After review of the record, the Board concludes that the Veteran's claim must be remanded to ensure substantial compliance with the Board's prior remand directives and to fulfill VA duty to assist the Veteran in substantiating his claim. As noted by the Board in the June 2013 remand, the Veteran initially asserted that he had contracted hepatitis C from air gun injections used to administer medicine during active duty. However, in a May 2013 written brief, the Veteran's representative noted that one of the Veteran's risk factors for hepatitis C reported by the April 2013 VA examiner (history of drug use, specifically his intravenous drug abuse) may be associated with PTSD; a disability for which service connection has been established. In light of above, the Board remanded the Veteran's claim in June 2013, directing that an opinion be sought addressing whether the Veteran's intravenous drug use, and thereby his hepatitis C, were caused or aggravated by his service-connected PTSD. 38 U.S.C.A. §§ 5103A, 5107(a); 38 C.F.R. § 3.159. A June 2013 computer printout reflects that, in requesting this VA opinion, the AMC recounted the Board's remand directive, verbatim. The July 2013 VA opinion reflects that, after a review of the complete record, the examiner opined that the Veteran's hepatitis C was less likely as not proximately due to or the result of his service-connected PTSD. In providing this opinion, the examiner stated "There is not a causative link between PTSD and the [V]eteran's contracting hepatitis C. The [V]eteran's history of drug use (specifically [intravenous drug use]), multiple sexual partners and [history of] blood transfusion are the prominent risk factors for the [V]eteran's contracting hepatitis C." The examiner states that the Veteran's hepatitis C was not at least as likely as not aggravated by the service-connected PTSD. The rationale was that "hepatitis C is an infection of the liver which has a predictable course over time. There is no evidence that the veteran's course of hepatitis C was aggravated [sic] beyond it's natural progression." The Board concludes that the July 2013 VA opinion is inadequate for the purpose of adjudicating the Veteran's claim. Initially, it appears that the examiner, essentially, reiterated the April 2013 opinion without addressing whether the Veteran's intravenous drug use (a noted risk factor for hepatitis C) was associated with his service-connected PTSD. The Board also finds that the rationale provided concerning the issue of aggravation to be inadequate. Significantly, it does not take into consideration whether the Veteran's drug abuse, if related to his PTSD, aggravates the hepatitis C. 38 C.F.R. § 3.310; Allen v. Brown, 8 Vet. App. 374 (1995). For these reasons, the Board concludes that the July 2013 VA opinion is inadequate for the purpose of adjudicating the Veteran's claim, and thus, the Board's June 2013 remand directive has not been substantially completed, and thus, a remand is necessary. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Schedule the Veteran for an examination to determine the nature and etiology of hepatitis C. It is requested that the examination be conducted by a clinician who has not yet examined the Veteran. The complete record and a copy of this Remand must be provided to and reviewed by the examiner. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. After the completion of above as well as a physical examination of and interview with the Veteran, the examiner must address the following: a. Provide an opinion concerning whether it is at least as likely as not (50 percent probability or more) that the Veteran's hepatitis C is proximately due or the result of his service-connected PTSD, to include intravenous drug use associated with such. b. Provide an opinion concerning whether it is at least as likely as not (50 percent probability or more) that the Veteran's hepatitis C is aggravated by his service-connected PTSD, to include intravenous drug use associated with such. Aggravation is defined as a permanent worsening beyond the natural progression of the disability. If aggravation is found, the examiner should address the baseline level of disability before it was aggravated by the service-connected disability. Any stated opinion should be supported by a complete rationale. If any requested opinion(s) cannot be provided without resort to mere speculation, the examiner must specifically state the reason for this. In providing the requested opinions, the examiner is advised that the term at least 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 causation as to find against causation. 2. Notify the Veteran that he must report for any scheduled examination and cooperate in the development of the claim. Failure to report for a VA examination without good cause may result in denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). 3. After the development requested above has been completed, the RO/AMC should readjudicate the claim of entitlement to service connection for hepatitis C, to include as secondary to service-connected PTSD. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond before the case is returned to the Board for appellate review. 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). _________________________________________________ L. M. BARNARD 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) (2012).