Citation Nr: 1328775 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 98-14 600 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The Veteran had active service from October 1982 until June 1986, and from January 1988 until January 1992. This matter comes before the Board of Veterans' Appeals (BVA or Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In a rating decision of March 2000, the RO assigned the Veteran a 40 percent disability rating for the back; this decision was confirmed by a September 2002 rating decision in which the RO also denied the Veteran's claim of entitlement to service connection for hepatitis C. The Veteran initiated an appeal of these issues, and in March 2003 and December 2006 the Board remanded these matters for additional development. The Board notes that the remaining claims in the prior remands, namely six service connection issues and a claim for a total disability rating based upon individual unemployability, were granted in July 2007 and May 2013 rating decisions. Concerning those particular issues, the Veteran has not disagreed with disability rating or effective date assigned. The grant of service connection constitutes a complete grant of the benefit sought on appeal. Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). Therefore, those issues have been resolved and are not in appellate status. Additionally, in a February 2013 decision, the Board denied entitlement to a disability rating in excess of 40 percent for his low back disability. Thus, that issue is also no longer before the Board. The Board notes that as part of the December 2006 remand orders, the RO was to contact the Veteran and arrange for a hearing before a Veterans Law Judge. In November 2008, the Veteran was notified of a scheduled hearing; however he failed to attend such hearing. The hearing request is thus deemed withdrawn. 38 C.F.R. § 20.704(d). The Board remanded this issue for additional development in September 2011 and February 2013. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. This electronic file has been reviewed in connection with the current decision. The issue of entitlement to special monthly compensation based upon the Veteran being unemployable as a result of his service-connected back disability has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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 To satisfy the in-service incurrence element in cases of service connection for hepatitis C, the evidence must show that the Veteran's hepatitis C infection, risk factor(s), or symptoms were incurred in or aggravated by service. Risk factors for hepatitis C include intravenous (IV) drug use, blood transfusions before 1992, hemodialysis, intranasal cocaine, high-risk sexual activity, accidental exposure while a health care worker, and various kinds of percutaneous exposure such as tattoos, body piercing, acupuncture with non-sterile needles, shared toothbrushes or razor blades. VBA letter 211B (98-110) November 30, 1998. VA Fast Letter 04-13 June 29, 2004 reiterates that exposure to blood and blood products, particularly percutaneous exposure, are the primary vectors for hepatitis C infection. The Letter states that infection by jet injector (or airgun, as it is popularly called) is biologically plausible but not confirmed in case studies. The Veteran's VA treatment records show that he was tested and found to have hepatitis C in 1995. Subsequent treatment records indicate that he failed Interferon therapy. The Veteran has asserted that he has hepatitis C as a result of an airgun injection (see, for example, VA treatment record from August 2008). However, it does not appear that the Veteran has had an opportunity to complete a risk factor form to consider other possible risk factors. In this matter, the Board notes that previously the Veteran reported that he had no tattoos or history of intravenous drug use (see VA treatment record from July 1996); however, the same treatment record indicates that the Veteran had a history of heavy alcohol abuse. Other records show that the Veteran has a history of opioid dependence (see, for example, VA treatment record from July 2003). As such, on remand, the Veteran should be given an opportunity to complete a risk factor form to clarify his exposure to risk factors for hepatitis C. In February 2013, the Board remanded the claim to afford the Veteran a VA compensation and pension examination to determine if the Veteran had current residuals of a hepatitis C disability, and if so, whether it was at least as likely as not that such diagnosis was etiologically related to service, including as a result from air gun injections in service. The requested VA examination was performed in March 2013. However, the examiner indicated that the Veteran had not reported for an abdominal ultrasound and hepatitis C lab to determine if there was evidence of current liver disease. He opined that the Veteran's current status was not known and would not be known until more recent laboratory work was completed. As such, without the benefit of having a new abdominal ultrasound and hepatitis C labs, the examiner said he was unable to state without speculating whether the Veteran had hepatitis C residuals. In the Veteran's accredited representative's July 2013 brief located in the Virtual VA folder, it was noted that the record is unclear regarding whether the abdominal ultrasound and hepatitis C labs were scheduled as an inherent part of the March 2013 VA examination or scheduled for a different time. The representative asserted that the March 2013 VA examiner did not discuss the need for lab work directly with the Veteran. Additionally, the representative remarked that although the Veteran had short notice of the scheduled VA examination, he attended it; as such, it would not make sense for the Veteran to fail to report for scheduled laboratory work if he was given proper notice. The Board notes that the Veteran's claims file and Virtual VA file are devoid of a copy of a notice letter to the Veteran informing him of a time and location for either examination or laboratory work. As such, it is impossible to ascertain if the Veteran received appropriate notice of the time and location for the laboratory work requested by the March 2013 VA examiner to be completed. Thus, remand is necessary to afford the Veteran the opportunity to complete the necessary testing to obtain the etiology opinion requested in the Board's February 2013 remand. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Accordingly, the case is REMANDED for the following action: 1. The RO should contact the Veteran and clarify his risk factors for hepatitis C. 2. After the above development has been completed as best as possible, the Veteran should be afforded a VA hepatitc diseases examination to confirm the diagnosis of hepatitis C and determine its etiology. All indicated tests and studies are to be performed, and comprehensive social, educational and occupational histories are to be obtained. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. A notation to the effect that this record review took place should be included in the report of the examiner. Following a review of the claims folder, an examination of the Veteran, and all appropriate laboratory testing deemed necessary, the physician is requested to provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that a hepatitis C disability was caused by risk factors associated with the Veteran's active service, to specifically include an in-service airgun injection. The examiner is requested to explain the usual incubation period and onset of symptoms for hepatitis C. Sustainable reasons and bases are to be provided for any opinion rendered. 3. The Veteran must be given adequate notice of the date and place of any requested examination and lab work. A copy of all notifications, including the address where the notice was sent, must be associated with the claims folder. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 4. After completion of the above and any additional development deemed necessary, the issue on appeal should be reviewed with consideration of all applicable laws and regulations. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on this matter. 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). _________________________________________________ A.C. MACKENZIE 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).