Citation Nr: 1410103 Decision Date: 03/12/14 Archive Date: 03/20/14 DOCKET NO. 10-38 293 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. Rippel, Counsel INTRODUCTION The Veteran served on active duty from March 1971 to March 1974. The appeal comes before the Board of Veterans' Appeals (Board) from a November 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The record before the Board consists of the Veteran's paper claims files and an electronic record known as Virtual VA and VBMS. 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 Veteran is claiming entitlement to service connection for and hepatitis C. The Veteran has alleged that he was infected with the hepatitis C virus as a result of contact with poorly sterilized dental implements used in dental treatment he received in Germany over the period of about a year in 1972 and 1973. He cited to a lab specimen report dated in August 1973 that contains the remark 'Hepatitis ?' The service treatment records document that the Veteran received dental treatment and show the indication of hepatitis as described above, but do not show any additional mention of hepatitis C. Private treatment records indicate that the Veteran was found to have hepatitis C in 2002 and has been treated for that disorder since. VA examination report dated in October 2009 reflects the examiner's opinion that the Veteran's hepatitis C is less likely than not related to service. Subsequent to the examination, the Veteran submitted an article on hepatitis in Veterans and hepatitis C in Vietnam era Veterans. The Veteran argues that, at the time of his dental treatment, modern testing for hepatitis C was not available. Unfortunately, the Board finds that the October 2009 opinion is not adequately supported. The rationale provided by the physician included findings that the Veteran has at no time been icteric, and that the disease was likely community acquired. However, it is undisputed that the Veteran has hepatitis C, so it is unclear why the lack of being icteric supports the negative opinion as to etiology. Also, it would appear that an examination should address the later submitted arguments the Veteran submitted in support of his claim in the form of the aforementioned medical literature. The Board further notes the Veterans Benefits Administration (VBA) has indicated that the 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 healthcare worker, and various kinds of percutaneous exposure such as tattoos, body piercing, acupuncture with non-sterile needles, shared toothbrushes or razor blades. VBA Fast Letter 98-110 (Nov. 30, 1998). Additionally, guidance has been published for adjudicating hepatitis C (HVC) claims in VBA Fast Letter 04-13 (June 29, 2004), which states in part: Population studies suggest HVC can be sexually transmitted. However, the chance for sexual transmission of HVC is well below comparable rates for HIV/AIDS or hepatitis B infection. . . . The hepatitis B virus is heartier and more readily transmitted than hepatitis C. While there is at least one case report of hepatitis B being transmitted by an air gun injection, thus far, there have been no case reports of hepatitis C being transmitted by an air gun transmission. The source of infection is unknown in about 10 percent of acute HVC cases and in 30 percent of chronic HVC cases. These infections may have come from blood-contaminated cuts or wounds, contaminated medical equipment [emphasis added] or multi-dose vials of medications. CONCLUSION: The large majority of HVC infections can be accounted for by known modes of transmission, primarily transfusion of blood products before 1992, and injection drug use. Despite the lack of any scientific evidence to document transmission of HVC with air gun injectors, it is biologically plausible. . . There was no test available to detect the presence of hepatitis C until 1989. See VBA Fast Letter 98-110. While the October 2009 medical opinion is thus not adequate, the evidence of record does trigger VA's duty to assist. Pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4)(i) (2013). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical opinion must support its conclusions with an analysis that can be considered and weighed against contrary opinions). Under the circumstances, the RO or the AMC should arrange for an additional VA medical opinion to clarify the nature and etiology of the Veteran's current hepatitis C on appeal. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. The RO or the AMC should request the Veteran to provide or identify any additional evidence which documents his claim. 2. After the above development has been completed and all outstanding records have been associated with the claims file, the claims file should be forwarded to an appropriate physician (preferably a hepatologist) in order to obtain a medical opinion to clarify the nature and etiology of the Veteran's hepatitis C. Based on a review of the claims folder and utilizing sound medical principles, the examiner is requested to provide an opinion as to whether it is as least as likely as not (50 percent probability or greater) that the Veteran's diagnosed hepatitis C had its onset in service or is otherwise etiologically related to his period of active service. In doing so, the reviewer is directed to consider the Veteran's reported risk factors in-service (dental work as described) and any post-service. The reviewer should also consider other identified major risk factors for the hepatitis C virus. See VBA Training Letter 211A (01-02) (April 17, 2001); VBA Fast Letter 04-13 (June 29, 2004). The examiner should set forth a complete rationale for the comments and opinions expressed in a legible report. All opinions are to be accompanied by a clear rationale consistent with the evidence of record. If the examiner cannot provide an opinion without resorting to mere speculation, such should be stated along with supporting rationale. The examiner should also acknowledge and discuss all the Veteran's reported risk factors for hepatitis C (in service and post service), internet evidence submitted the Veteran, the findings in the October 2009 VA liver examination report, and the findings in the private treatment notes of record. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. The RO or the AMC should also undertake any other development it determines to be warranted. 4. Then, the RO or the AMC should readjudicate the claim. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be provided a supplemental statement of the case and the requisite opportunity to respond before the case is returned to the Board for further appellate action. 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. 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 A. PAPPAS 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).