Citation Nr: 1337404 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 07-20 712 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for hepatitis C. 2. Entitlement to service connection for a psychiatric disability, claimed as due to hepatitis C. ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active duty from July 1976 to March 1978. The appeal comes before the Board of Veterans' Appeals (Board) from a June 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. The Veteran was scheduled for a Board hearing at the RO in September 2009. He failed to report for the scheduled hearing without explanation, and he has not requested that the hearing be rescheduled. Therefore, as the Board has previously noted, the hearing is deemed withdrawn. The Board most recently remanded the case for additional development April 2013. The case has now returned to the Board for further appellate action. The record before the Board consists of the Veteran's paper claims files and an electronic record known as Virtual VA. REMAND Unfortunately, further development is still required before the Board decides the Veteran's appeal. Records from a VA hospital in Miami, Florida, sought pursuant to the Board's April 2013 remand, were obtained and associated with the record in May 2013. Subsequently, in May 2013, the Veteran was afforded a VA examination for compensation purposes addressing his claimed hepatitis C. Other development required by the Board's April 2013 remand was also undertaken. The Veteran had reported being hospitalized in service at the Naval hospital in Millington, Tennessee. Records of that hospitalization were not contained in the Veteran's service treatment records, but a recent request for any record of the hospitalization produced records of the Veteran's hospitalization in February and March 1977 at the Naval hospital in Millington, Tennessee. This hospitalization was for a viral infection with viral exanthem over much of the Veteran's body, together with symptoms of anorexia, headache, and fever. The question thus presented is whether this hospitalization may potentially represent initial infection with hepatitis C, or an acute episode of illness due to hepatitis C. Unfortunately, the VA examination required by the Board's April 2013 remand was completed before these hospitalization records were received, and no addendum opinion was sought based on these newly obtained records. The Veteran has asserted that he was infected with hepatitis C in service by jet gun injection. In a May 2013 statement, he further asserted that the Centers for Disease Control and Prevention (CDC) in Atlanta, Georgia, had found a direct link between jet gun injections and infection with hepatitis C, and that the CDC website urges all veterans who had received a jet gun injection to be tested for hepatitis C. The Board has reviewed the CDC's website, and has found there neither a report of any such direct link between jet gun injections and hepatitis C infection, nor a notice to veterans urging veterans who received jet gun injections to be tested for hepatitis C. The Board did find on the CDC website an epidemiologic article addressing a documented outbreak of hepatitis B, not hepatitic C, associated with using a particular jet gun in a private treatment setting in California between 1984 and 1985. The Board has added a copy of the article to the record. The Board does not perceive a precise applicability of this study to the Veteran's claim, since there is no indication that the same type of jet gun reportedly used for the Veteran in the military was used at this private facility in California over a decade later. Additionally, the form of hepatitis (B versus C) is different. The article noted that this was the only documented instance of such infectivity by jet gun. That said, VA Fast Letter 04-13 (June 29, 2004) states that transmission of the hepatitis C virus (HCV) with air gun injectors is biologically plausible. The record thus presents a question of possible in-service infection by air gun or other means, potentially with infection reflected by the viral reaction for which the Veteran was hospitalized in February and March 1977. These questions are to be addressed by the examiner upon remand. The Veteran's claim for service connection for a psychiatric disorder as secondary to his hepatitis C is inextricably intertwined with the claim for service connection for hepatitis C. Therefore, the Board will defer its decision on the psychiatric claim pending the resolution of the hepatitis C claim. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. Undertake appropriate development to obtain any outstanding medical records pertinent to the Veteran's claim. 2. Thereafter, obtain an addendum opinion from the VA examiner who conducted the examination in May 2013 addressing the Veteran's claim for service connection for hepatitis C. The examiner must review the evidence added to the record since the May 2013 examination, to include the record of in-service hospitalization in February and March 1977 at the Naval hospital in Millington, Tennessee. The examiner must then provide an addendum opinion addressing whether there is a 50 percent or better probability that the Veteran's hepatitis C originated in service or is otherwise etiologically related to service, to include whether it is related to the condition treated in February and March 1977 and/or the injection by jet gun in service. The rationale for the opinion must also be provided. If the examiner is unable to provide the required opinion, he or she should explain why the opinion cannot be provided. If the May 2013 VA examiner is not available, the claims folders and any pertinent evidence in Virtual VA that is not contained in the claims folders should be provided to and reviewed by another physician with sufficient expertise who should be requested to provide the required opinion with supporting rationale. Another examination of the Veteran should only be performed if deemed necessary by the person providing the opinion. 3. The RO or the AMC should also undertake any other development deemed appropriate. 4. Then, the RO or the AMC should readjudicate the issues on appeal. If any benefit sought on appeal is not granted to the appellant's satisfaction, the appellant and his representative should be provided a supplemental statement of the case and an appropriate period of time for response. The case should then be returned to the Board for further appellate action, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is 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). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court 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). _________________________________________________ Shane A. Durkin 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).