Citation Nr: 1328485	
Decision Date: 09/06/13    Archive Date: 09/16/13

DOCKET NO.  10-44 047	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, 
New Jersey


THE ISSUES

1.  Entitlement to service connection for left ear hearing 
loss.

2.  Entitlement to service connection for a right eye 
injury.

3.  Entitlement to service connection for hepatitis C.

4.  Entitlement to service connection for residuals of a 
head injury.


REPRESENTATION

Appellant represented by:	National Association of County 
Veterans Service Officers


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Elizabeth Jalley, Counsel


INTRODUCTION

The Veteran served on active duty from August 1957 to 
January 1961.

This case comes before the Board of Veterans' Appeals 
(Board) on appeal from an April 2010 rating decision of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Newark, New Jersey.

In June 2011, the Veteran testified at a personal hearing 
before the undersigned Veterans Law Judge.  A transcript of 
this hearing was prepared and associated with the claims 
file.

The issues of entitlement to service connection for 
hepatitis C and residuals of a head injury are addressed in 
the REMAND portion of the decision below and are REMANDED to 
the RO via the Appeals Management Center (AMC), in 
Washington, DC.


FINDING OF FACT

In June 2011, prior to the promulgation of a decision in the 
appeal, the Veteran withdrew the claims of entitlement to 
service connection for left ear hearing loss and a right eye 
injury.




CONCLUSION OF LAW

The criteria for withdrawal of the issues of entitlement to 
service connection for left ear hearing loss and a right eye 
injury by the Veteran have been met.  38 U.S.C.A. 
§ 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board may dismiss any appeal which fails to allege 
specific error of fact or law in the determination being 
appealed.  38 U.S.C.A. § 7105 (West 2002).  An appeal may be 
withdrawn as to any or all issues involved in the appeal at 
any time before the Board promulgates a decision.  38 C.F.R. 
§ 20.204 (2012).  Withdrawal may be made by the appellant or 
by his or her authorized representative.  38 C.F.R. 
§ 20.204.  In the present case, the Veteran withdrew his 
appeals of the claims of entitlement to service connection 
for left ear hearing loss and a right eye injury during his 
June 2011 Board hearing.  As this withdrawal appears in the 
hearing transcript and has been reduced to writing, these 
claim have been properly withdrawn and are no longer before 
the Board.  Hence, there remain no allegations of errors of 
fact or law on these issues for appellate consideration.  
Accordingly, the Board does not have jurisdiction to review 
the appeals of those issues and they are dismissed.


ORDER

The claim of entitlement to service connection for left ear 
hearing loss is dismissed.

The claim of entitlement to service connection for a right 
eye injury is dismissed.




REMAND

The Veteran has claimed entitlement to service connection 
for hepatitis C and residuals of a head injury, both of 
which he claims are related to his military service.  
Following review of the record, the Board finds that it is 
necessary to remand both of these claims for further 
development.  

First with respect to the hepatitis C claim, the Board notes 
that, under McLendon v. Nicholson, 20 Vet. App. 79 (2006), 
in initial service connection claims, the VA must provide a 
VA medical examination where there is (1) competent evidence 
of a current disability or persistent or recurrent symptoms 
of a disability; (2) evidence establishing that an event, 
injury, or disease occurred in service; (3) an indication 
that the disability or persistent or recurrent symptoms of a 
disability may be associated with the veteran's service; and 
(4) insufficient competent medical evidence on file for VA 
to make a decision on the claim.  The Court in McLendon 
observed that the third prong, which requires an indication 
that the claimant's disability or symptoms 'may be' 
associated with the established event, is a low threshold.  
Id. at 83. 

The Board finds that the McLendon requirements are satisfied 
with respect to the hepatitis C claim and, therefore, it is 
necessary to remand this claim for a VA examination.  With 
respect to the first McLendon element, evidence of a current 
disability, the Veteran's VA medical records note that he 
has "[c]hronic hepatitis C without mention of hepatic coma."  

With respect to the second McLendon element, the incurrence 
of the Veteran's hepatitis C in service, the Veteran 
testified at his June 2011 Board hearing that he was exposed 
to hepatitis C in service in the following manner:

[T]hey use a giant bottle, like your bottle 
filled with inoculate and they draw it up to each 
sailor and then they put another [n]eedle stick ... 
from person to person to person to person to 
person.  Now, it requires that you use separate 
vial and a separate syringe each time.  In the 
past, you just stick in there and just down, put 
either a clean syringe in there with the needle 
left in the bottle....

On elaboration, he reported that they were exposed to blood 
products through multiple doses of needle stick inoculations 
and the use of medical instruments to open wound areas.  The 
Veteran is competent to testify that he was inoculated with 
needles that had been used on other service members.  
Therefore, he has satisfied the second McLendon element.

The low threshold of the third McLendon element is satisfied 
by the fact that direct percutaneous exposure to blood such 
as by acupuncture with non-sterile needles is a medically 
recognized risk factor for hepatitis. 

The Board finds, however, that there is insufficient 
evidence of record to decide the claim.  Therefore, the 
Board finds it necessary to remand this claim for a VA 
examination and etiology opinion.

The Veteran has also claimed entitlement to service 
connection for residuals of a head injury.  He underwent a 
"Neuropsychological Assessment to Assist With Compensation 
and Pension Examination for Traumatic Brain Injury" in 
October 2009.  This examination report describes current 
neuropsychological impairment, as well as the Veteran's 
three reported in-service head injuries, but it does not 
contain an etiology opinion.  

The Board notes that at least one of the Veteran's reported 
head injuries is corroborated by his service treatment 
records, as a November 1958 sick call record notes that the 
Veteran suffered a "wound, lac[eration], front scalp."  The 
record indicates that the Veteran's wound was cleansed and 
sutured.  The Veteran has described a second head injury has 
having occurred in January 1959, when he passed out and hit 
his head while waiting for Kaopectate for diarrhea 
treatment.  The sick call treatment record notes that the 
Veteran was seen for diarrhea in January 1959 and was given 
Kaopectate at that time.  

The Veteran testified at his Board hearing that he was 
hospitalized aboard the U.S.S. Macon for two days beginning 
on January 7, 1959.  He and his representative requested 
that the Board attempt to obtain these records, noting that 
"those hospital records don't follow you around.  They stay 
with the ship or say it was like if you went to a hospital 
on a post, the post hospital's records on that illness if 
you were in the hospital for two weeks stays in the 
hospital.  It doesn't follow the service...."  Given that the 
Veteran and his representative have identified with 
specificity the records that they wish for VA to attempt to 
obtain, and given that a remand of this claim is necessary 
in order to obtain an etiology opinion that takes into 
consideration the Veteran's documented in-service head 
injuries, the Board finds it appropriate to attempt to 
obtain these records on remand.

In requesting these records, however, the Board notes that 
"the 'duty to assist' is not a license for a 'fishing 
expedition' to determine if there might be some unspecified 
information which could possibly support a claim.  In 
connection with the search for documents, this duty is 
limited to specifically identified documents that by their 
description would be facially relevant and material to the 
claim."  See Gobber v. Derwinski, 2 Vet. App. 470, 472 
(1992).  Because the Veteran in this case has identified 
particular records and has explained why such records are 
pertinent to his claim, the Board finds it appropriate to 
remand this claim to attempt to obtain these records.

Finally, the Board notes that it appears that the VA medical 
evidence of record is incomplete.  Specifically, the problem 
list from the Philadelphia VA Medical Center (VAMC) refers 
to diagnoses that were rendered in 1998 through 2006.  
Records from that period, however, have not been associated 
with the claims file.  Nor have records from any more 
recently than April 2010 been obtained.  On remand, the AMC 
should ensure that the Veteran's complete VA medical records 
have been obtained and associated with the claims file.

Accordingly, the case is REMANDED for the following action:

1.  Obtain copies of all of the Veteran's 
outstanding VA medical records, to include 
any records from the Philadelphia VAMC, 
and ensure that those copies are 
associated with the claims file.  Any 
development requests should include a 
request for records from the 1990s and 
from in and after April 2010.  The 
notification and assistance requirements 
of 38 C.F.R. § 3.159(c)(2) should be 
followed.  All efforts to obtain these 
records should be recorded in the claims 
folder.  

2.  The AMC should take the appropriate 
steps to locate any records from a 
hospitalization that the Veteran reports 
occurred while he was serving aboard the 
U.S.S. Macon in January 1959.  
Specifically, the Veteran has reported 
that he was hospitalized for two days 
beginning on January 7, 1959, when he 
passed out and suffered a head injury 
while seeking treatment for diarrhea.  The 
development procedures of 38 C.F.R. § 
3.159(c)(2) must be followed.  All efforts 
made to locate these records should be 
documented in the claims folder, and the 
Veteran should be notified of all steps 
taken to obtain these records and of any 
responses that are received.  

3.  Following completion of the above, 
schedule the Veteran for an appropriate VA 
examination at the Philadelphia VAMC to 
determine the nature and etiology of his 
hepatitis C.  All necessary tests, if any, 
should be requested.  The claims file must 
be available for review and the examiner 
is requested to obtain a detailed history 
regarding risk factors for hepatitis C.  

After reviewing the file, the examiner 
should render an opinion as to whether the 
Veteran currently has hepatitis C that is 
at least as likely as not related to 
active military service or events therein, 
to include as due to injections with 
contaminated needles.  In making this 
determination, it is essential that the 
report include a full discussion of all 
modes of transmission and a rationale as 
to why the examiner believes in-service 
inoculations were or were not the source 
of the Veteran's hepatitis C.  It would be 
helpful if the examiner would use the 
following language, as may be appropriate: 
'more likely than not' (meaning likelihood 
greater than 50%), 'at least as likely as 
not' (meaning likelihood of at least 50%), 
or 'less likely than not' or 'unlikely' 
(meaning that there is a less than 50% 
likelihood).

The term 'at least as likely as not' does 
not mean 'within the realm of medical 
possibility.'  Rather, it means that the 
weight of medical evidence both for and 
against a conclusion is so evenly divided 
that it is as medically sound to find in 
favor of that conclusion as it is to find 
against it. 

4.  Following completion of the first two 
instructions above, arrange for the 
Veteran to undergo a VA examination at the 
Philadelphia VAMC to determine the nature 
and etiology of any current head injury 
residuals.  The claims folders must be 
thoroughly reviewed by the examiner in 
connection with the examination, and a 
complete history should be elicited 
directly from the Veteran, to include any 
reports of in-service and post-service 
head injury.  Any tests and studies deemed 
necessary should be conducted.  All 
findings should be reported in detail.  

The examiner should express an opinion as 
to whether it is at least as likely as not 
(a 50 percent probability or more) that 
any head injury residuals were incurred in 
service or are related to service, 
including to any in-service head trauma.  

Any opinion expressed must be accompanied 
by a complete rationale.

5.  After the development requested above 
has been completed, again review the 
record.  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 thereto.  
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).




______________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs