Citation Nr: 1330731 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 10-06 584 ) 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: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The Veteran served on active duty from January 1972 to January 1975. This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2008 rating action of the Los Angeles, California, Regional Office (RO), which denied entitlement to service connection for hepatitis C. In September 2012, the Veteran testified during a Board video conference hearing held before the undersigned Acting Veterans Law Judge. A transcript of the hearing is associated with the claims file. A September 2013 review of the Veteran's paperless claims processing system does not reveal any additional documents pertinent to the present appeal. 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 The Board's review of the claims file reveals that additional RO action on the service connection claim for hepatitis C on appeal, is warranted. A remand is required in this case to address this issue. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. See 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c),(d) (2013). The Veteran maintains that hepatitis C was incurred in service, resulting from tattoos reportedly received therein, or attributable to inoculations administered with air gun injectors. A brief review of pertinent evidence on file reflects that an August 1998 record noted that abnormal liver function tests were shown by private medical evidence of 1996 and that positive hepatitis C antibodies were evident on June 1998 testing. A history of tattoos 20 years previously was documented and Dr. K. N. indicated that hepatitis C was presumably due to tattoos. A diagnosis of hepatitis C was confirmed on liver wedge biopsy of October 1998. Service treatment records (STRs) are negative for any indications or diagnosis of hepatitis C and do not reflect that the Veteran had any tattoos on enlistment or separation examinations of January 1972 and January 1975; the 1975 separation examination report makes note of several scars including a vaccination scar on the left arm. The STRs reflect that the Veteran received several vaccinations while in service, but there is no indication of how these were administered. A November 2001 VA record noted that the Veteran's hepatitis C risk factors consisted of multiple sexual partners and tattoo/repeated body piercing. In May 2008, the Veteran provided for the file a risk factor for hepatitis C questionnaire indicating that his only risk factor was tattoos or body piercings of the upper arm received in 1972. In Board hearing testimony provided in 2012, the Veteran indicated that he got 2 tattoos during service, one in 1972 and the other in 1975, which were overlooked on the separation examination report. In support of the claim, the Veteran provided for the record information apparently issued by the VA Director of AIDS Service to the effect that anyone who received an inoculation through a jet injector was at risk for having hepatitis C and should be tested. The Board also notes that a letter was published by the VA Director of Compensation and Pension Service dated June 8, 2004 (FAST Letter 04-13), in which the Director addressed the relationship between jet injectors and the incurrence of hepatitis C. The Director noted that symptoms may not appear for many years following the infection. The Director noted that although it is biologically possible, there were no reported cases of a hepatitis C infection transmitted by jet injectors. At this point the etiology of the Veteran's claimed hepatitis C is unclear. Pursuant to VA's duty to assist a claimant in the development of facts pertinent to the claim, a medical examination or medical opinion is considered necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent medical evidence of a currently diagnosed disability or persistent or recurrent symptoms of a disability; (2) establishes that the Veteran suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with an established event, injury or disease in service or with another service-connected disability. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4). In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) noted that the third prong of 38 C.F.R. § 3.159(c)(4), requiring that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. To date, no VA examination has been conducted or medical opinion obtained in conjunction with the Veteran's service connection claim for hepatitis. In light of the evidence currently on file, the Board believes that the threshold requirements discussed in McLendon are arguably met with respect to this service connection claim, warranting an examination in accordance with the duty to assist. See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2013); (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim). In doing so, the Board concludes that in order fulfill the duty to assist in providing a complete and adequate examination under the circumstances of this case, the examination should reflect review of the claims file and include an opinion addressing the likely etiology of the Veteran's claimed hepatitis C, to the extent possible. See Caffrey v. Brown, 6 Vet. App. 377 (1994); 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4)(i) (2013); Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (duty to assist may include "the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one"). The Veteran is hereby advised that failure to report for the scheduled examination, without good cause, may result in denial of the claim. See 38 C.F.R. § 3.655 (2013). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to the scheduled examination, the RO should obtain and associate with the claims file any copy(ies) of the notice of the date and time of examination sent to him by the pertinent VA medical facility. Prior to arranging for the above-noted examination, to ensure that all due process requirements are met, and the record is complete, the RO should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. As for VA records, the Board observes that it appears that the Veteran receives regular treatment through VA. A review of the Veteran's physical and paperless file reflects that VA/CAPRI records were last compiled and reviewed in conjunction with the appeal in November 2009, and that these records were current to mid-June 2009. Hence, it appears that more recent VA records may exist. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462,466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611,613 (1992). Accordingly, the RO should obtain all outstanding, pertinent VA records of evaluation, hospitalization, and/or treatment of the Veteran from June 2009, forward, following the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. The RO should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claim remaining on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). In its letter, the RO should specifically request that the Veteran furnish, or furnish appropriate authorization for the RO to obtain, any pertinent, outstanding private records. Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2013). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim remaining on appeal. The RO's readjudication of the claim should include consideration of all evidence added to the record since the last adjudication of the claim in December 2009. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding, pertinent VA records of evaluation, hospitalization, and/or treatment of the Veteran from dated from June 2009, forward. Follow the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. 2. Furnish to the Veteran and his representative a letter requesting that the Veteran provide information and, if necessary, authorization, to enable it to obtain any additional evidence pertinent to the pending service connection claim for hepatitis C that is not currently of record. Specifically request that the appellant provide, or provide appropriate authorization to obtain, any outstanding private medical records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, obtain all identified outstanding pertinent records of evaluation and/or treatment not currently of record-to include following the procedures set forth in 38 C.F.R. § 3.159 (2013). All records and responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo a VA examination, by an appropriate physician, at a VA medical facility, for his claimed hepatitis C. The entire claims file, to include a complete copy of this REMAND, must be made available to the physician designated to examine the Veteran. The examination report should include discussion of the Veteran's lay medical history including any risk factors for hepatitis, and assertions relating to the development of the condition. The examiner is also requested to elicit and record in the examination report the Veteran's lay statements relating to his symptoms (duration, nature and frequency) as well as the onset, of his claimed hepatitis C. All appropriate tests and studies should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report) and all clinical findings should be reported in detail. After recording the appropriate diagnosis, the examiner is asked to opine whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that hepatitis C was incurred in or is otherwise attributable to the Veteran's period of service from January 1972 to January 1975, such as by virtue of tattoos received therein or due to inoculations reportedly administered by an air gun, as contended by the Veteran. In this regard the lay, clinical, and other documentary evidence - to include information issued by VA, should be considered. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed, typewritten record. 5. If the Veteran fails to report for the scheduled examination, obtain and associate with the claims file any copy(ies) of notice of the date and time of the examination sent to him by the pertinent VA medical facility. 6. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claim on appeal in light of all pertinent evidence (to include all that added to the record since the last adjudication of the claim in December 2009) and legal authority. 8. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995). 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). _________________________________________________ J. W. FRANCIS 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).