Citation Nr: 1335999 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 02-15 238A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for a psychiatric disorder, including bipolar disorder and depressive disorder. 2. Entitlement to service connection for hepatitis C. 3. Entitlement to compensation for hepatitis C, to include under 38 U.S.C.A. § 1151 due to surgery performed by VA in December 1978. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A Cryan, Counsel INTRODUCTION The Veteran served on active duty from May 1974 to December 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2001 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Veteran later testified at a Travel Board hearing before the Board in July 2013. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. REMAND A review of the claims file reveals that a remand is necessary before a decision on the merits of the claims can be reached. The Veteran has not been sent the necessary notice, in compliance with 38 U.S.C.A. § 5103 and 38 C.F.R. § 3.159(b), that relates directly to his claims for service connection for a psychiatric disability and hepatitis C and entitlement to compensation for hepatitis C, to include under 38 U.S.C.A. § 1151 due to surgery performed by VA in December 1978. The Veteran should be specifically informed of the type of information or evidence necessary to substantiate a claim of service connection for a psychiatric disability and hepatitis C and entitlement to compensation for hepatitis C under 38 U.S.C.A. § 1151 due to surgery performed by VA in December 1978, which evidence VA would seek to acquire, and which information or evidence the Veteran was to submit. Quartuccio v. Principi, 16 Vet. App. 183 (2002). With regard to the psychiatric claim, the Veteran was afforded a VA examination in September 2003 at which time the Veteran was diagnosed with bipolar disorder. The examiner reviewed the Veteran's medical history and medical opinions submitted from the Veteran's treating therapist at VA and performed a clinical evaluation. The examiner concluded that there was no concrete evidence to indicate that the Veteran suffered from endogenous bipolar disorder rather than from mood instability due to nonservice-connected alcohol and drug abuse and there was no concrete evidence to indicate that if the Veteran did suffer from a genuine bipolar disorder that the onset of the condition began or was exacerbated by military service. Although the examiner included a thorough recitation of the evidence, the examiner's opinion inadequate. This is so because the examiner used an incorrect standard in rendering his conclusion. Once VA undertakes the effort to provide a medical examination or opinion, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303 (2007). The September 2003 VA examiner failed to provide an opinion as to whether the Veteran's bipolar disorder was more or less likely (greater than a 50 percent probability) related to the Veteran's active duty service. Consequently, another examination and nexus opinion is necessary before a decision on the merits of the claim can be reached. With respect to the claims regarding hepatitis, the Veteran has not been afforded a VA examination. A review of the record reveals that the Veteran has a diagnosis of hepatitis C which he claims is related directly to service or resulted from a blood transfusion during a left knee surgery at VA in December 1978. 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 or a service-connected disability; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. 38 C.F.R. § 3.159(c) (2013); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran has not been afforded a VA examination to determine the etiology of his claimed hepatitis. A VA examination should be obtained in order to ascertain the etiology of the claimed hepatitis. The examiner should also comment on whether the Veteran received a blood transfusion at the time of his left knee surgery in December 1978. Additionally, VA outpatient treatment reports dated through January 2001 are associated with the claims file. It is not clear whether any additional VA treatment records exist. Because there may be outstanding VA medical records that contain information pertinent to the Veteran's claims, an attempt to obtain such records should also be made. 38 C.F.R. § 3.159(c)(2) (2013); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a letter and ensure that all notification actions required by 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002 & Supp. 2013) are fully satisfied. 38 C.F.R. § 3.159 (2013). Specifically, the Veteran should be advised of the elements necessary to establish service connection and compensation under 38 U.S.C.A. § 1151. Additionally, the Veteran should be advised which evidence VA would seek to acquire and which information or evidence the Veteran was to submit. Also, request Veteran to identify whether he has current treatment at VA and whether there are any other relevant treatment records at any other providers. 2. If the Veteran identifies any additional treatment at VA, those records should be obtained. If any other records are identified, after the necessary releases are obtained, the records should be requested. Any negative responses should be associated with the claims file. 3. Schedule the Veteran for a VA examination with a specialist with expertise treating psychiatric disabilities. The clinician should explain the basis for any opinion and base the opinion on sufficient facts or data with reference to medical literature, if possible. The examiner must review the claims file and note that review in the report. Any necessary tests, including psychiatric testing, should be accomplished. The examiner should identify any psychiatric disorders present. Thereafter, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that any diagnosed psychiatric disability, including depression and bipolar disorder, is related to the Veteran's active service, including the diagnosis of a character disorder in service. The examiner should reconcile the opinion with the other medical opinions of record, including those from the Veteran's treating provider at VA and the September 2003 VA opinion. 4. Schedule the Veteran for a VA examination to determine the etiology of his hepatitis C. The examiner must review the claims file and should note that review in the examination report. The examiner should obtain a detailed history regarding the onset of pertinent symptomatology. The examiner should also consider the Veteran's statements regarding his exposure to jet injectors used for inoculations in service, and its relationship, if any, to the Veteran's subsequent development of hepatitis C. The examiner should specifically opine whether it is at least as likely as not (50 percent probability or greater) that hepatitis C was incurred in service, to include during any exposure from jet injectors. The examiner should also indicate whether, based on a review of the relevant medical records, there is evidence that the Veteran received a blood transfusion during a left knee surgery in December 1978. Any additional risk factors that lead to any conclusion as to a relationship of the Veteran's hepatitis C to his military service should also be specifically identified. 5. Then, readjudicate the claims. If the action remains adverse to the Veteran, issue a supplemental statement of the case, allow the appropriate time for response, and then return the case to the Board. 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. 2013). _________________________________________________ Michael J. Skaltsounis 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) (2013).