Citation Nr: 1504336 Decision Date: 01/29/15 Archive Date: 02/09/15 DOCKET NO. 05-32 432 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for hepatitis B, status post liver transplant. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Kipper, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1966 to December 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In June 2014, the Board, in pertinent part, remanded the issues of entitlement to service connection for hepatitis B and entitlement to service connection for a low back condition for further development. Thereafter, in a November 2014 rating decision, the AOJ granted service connection and assigned a 20 percent rating for a low back condition effective May 24, 2002. The Veteran has not appealed the rating assigned for the award or its effective date. As such, the issue with regard to a low back condition is no longer in appellate status. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. Therefore any future consideration of the Veteran's claim should take into account the existence of the electronic record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of the remaining issues on appeal. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. The Veteran contends that he developed hepatitis B in the course of his duties as a medical corpsman. Specifically, he asserts that he experienced numerous accidental needle sticks while administering injections to military personnel aboard ships. The Veteran also asserts that he may have contracted hepatitis B while assigned to infectious disease wards in San Diego and Iceland, where he treated people known to be infected with hepatitis B. See September 2005 Statement in Support of Claim; November 2002 Statement in Support of Claim. Alternatively, the Veteran contends that he incurred hepatitis B as the result of a blood transfusion during an operation in 1967. See September 2005 Statement in Support of Claim; October 2005 Statement in Support of Claim. The Veteran also asserts that he was already experiencing symptoms of hepatitis B in-service, as evidenced by treatment for a sharp pain in the left side and vomiting. See September 2005 Statement in Support of Claim. The Veteran's service treatment records document treatment for abdominal pain and vomiting in September 1969. Additionally, during a March 1970 VA examination, the Veteran reported recurring right abdominal pain and vomiting while stationed in Iceland. In June 2014, the Board remanded this case for additional development, including a VA examination to determine the likely etiology of his hepatitis B. The Board specifically requested that the examiner "comment on the Veteran's contentions that his hepatitis B is the result of in-service blood transfusion for his tonsillectomy or in-service needle sticks from his duties as a medical corpsman." The Veteran was afforded a VA examination in September 2014. The Veteran indicated that he was diagnosed with hepatitis B in December 2001, but that he had been getting "sicker and sicker as the years went by." The Veteran also reported that he had been experiencing abdominal pain and vomiting for years. The Veteran reported that he was a corpsman in the Navy and that he administered shots and treated hepatitis patients. The Veteran denied a history of intravenous drug use, tattoos, or high sexual behavior/activity. After examining the Veteran and reviewing the claims file, the examiner opined that it was less likely than not that the Veteran's hepatitis B was incurred in service or caused by an incident of service. The examiner's rationale for this negative nexus opinion was that the Veteran was noted to have had more than 300 female sex partners in a December 2001 VA treatment note. The examiner stated that "[s]exual transmission remains the major mode of spread of HBV in developed countries." The Board finds this opinion inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The examiner did not discuss why the Veteran's reported in-service risk factors, including needle sticks and blood transfusion, were less than likely the nexus of the Veteran's hepatitis B or why it was more likely that the Veteran's hepatitis B was due to post-service sexual activity than other in-service risk factors. Instead, the examiner listed pertinent treatment notes from the Veteran's medical records and then offered a negative nexus opinion, without offering any supporting rationale for that opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that a medical opinion that contains only data and conclusions without any supporting analysis is accorded no weight); Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Further, a remand by the Board confers on a claimant, as a matter of law, the right to compliance with the remand orders and provides that the Secretary of VA has a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268 (1998). In this case, the examiner did not comment on the Veteran's contentions that his hepatitis B is the result of in-service blood transfusion for his tonsillectomy or in-service needle sticks from his duties as a medical corpsman as directed to by the Board. As such, the mandates of the Board's remand were not adhered to, and the claim must again be remanded so that remedial compliance with the Board's June 2014 remand can occur. The claims file also contains evidence indicating that the Veteran is currently receiving disability benefits from Social Security Administration (SSA). In a February 2002 VA 21-527, Income-Net Worth and Employment Statement, in support of his claim for non-service connected pension benefits, the Veteran indicated that he was applying for social security disability benefits. Additionally, in August 2002, the Veteran reported to a VA social worker that he was receiving social security disability benefits. See August 2002 VA Treatment Note. Also of record are inquiries indicating that the Veteran is receiving SSA benefits. See March 2003 Share Print Screens. However, there is no indication in the claims file that the AOJ attempted to obtain SSA records. When VA has actual notice of the existence of relevant SSA records, the duty to assist includes requesting those records from the SSA. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010) (finding that VA must seek to obtain relevant records under 38 U.S.C. § 5103A when "there exists a reasonable possibility that the records could help the veteran substantiate his claim for benefits"); see also Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992) (finding VA's duty to assist specifically includes requesting information from other Federal departments). This duty extends to obtaining a copy of the SSA decision awarding or denying benefits. Id. at 371; Baker v. West, 11 Vet. App. 163, 169 (1998); Hayes v. Brown, 9 Vet. App. 67, 73-74 (1996). Because SSA records are potentially relevant to the Board's determination in this case, VA is obliged to attempt to obtain and consider those records. Therefore, on remand, the Veteran's complete SSA records should be obtained. Remand is also required to obtain private treatment records. In April 2003, the Veteran submitted a detailed summary of all medical treatment from 1970 to 2003, which included treatment for hepatitis and abdominal pain. Additionally, he submitted numerous authorizations, with dates of treatment and complete addresses, for VA to obtain those records. It does not appear that the AOJ attempted to obtain those records before issuing the May 2003 rating decision. Thereafter, in June 2003, the Veteran again submitted the authorizations for VA to obtain the treatment records. Again, the AOJ did not attempt to obtain those records. In August 2003, the AOJ sent the Veteran a letter asking that he complete and re-send the authorizations using an updated form. It does not appear that the Veteran responded to that letter. In response to the Board's June 2014 remand, the AOJ requested that the Veteran provide authorization to obtain any outstanding treatment records. However, as there are highly relevant treatment records still outstanding, of which the AOJ appears to have had knowledge of since 2003, the Board finds that the Veteran should be afforded one more opportunity to provide authorization for the AOJ to obtain those records. Finally, since the claims file is being returned it should be updated to include VA treatment records compiled since October 2014. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the Veteran's claims file all outstanding VA treatment records for the period from October 2014 to the present. 2. Additionally, request from SSA complete copies of any determination on a claim for disability benefits from that agency, together with the medical records that served as the basis for any such determination. All attempts to fulfill this development should be documented in the claims file. If the search for these records is negative, that should be documented in the claims file, and the Veteran must be informed of this in writing in accordance with 38 C.F.R. § 3.159(e). 3. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. Specifically request that the Veteran furnish appropriate authorization to obtain the following treatment records: a. Seventh Day Adventist Hospital, 1970-1971 b. Glendale Memorial Hospital, 1978 c. Northridge Medical Center, 1984 d. Encino Hospital, 1984 e. Grenada Hills Hospital, 1986-1988 If any of the requested private records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. Allow the Veteran an appropriate amount of time to respond. All records obtained pursuant to this request must be included in the Veteran's claims file. If the search for such records has negative results, documentation to that effect should be included in the claims file in accordance with 38 C.F.R. § 3.159(c)(1). 4. After the foregoing development has been completed, return the claims file, to include a copy of this remand, to the September 2014 VA examiner for an addendum opinion regarding the Veteran's hepatitis B. If the examiner who drafted the September 2014 opinion is unavailable, the opinion should be rendered by another appropriate medical professional. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. The claims file and a copy of this Remand must be made available to the reviewing examiner, and the examiner shall indicate in the addendum report that the claims file was reviewed. Following a review of the claims file, the reviewing examiner should provide an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's hepatitis B had its clinical onset during service or is due to any event or incident of the Veteran's period of active service. The examiner should specifically comment on the Veteran's contentions that his hepatitis B is the result of an in-service blood transfusion for his tonsillectomy, the Veteran's assertion that he worked in an infectious disease ward and was exposed to other military personnel with hepatitis B, the Veteran's reports of in-service needle sticks during his duties as a medical corpsman, and service treatment records and a March 1970 VA examination report documenting treatment for abdominal pain and vomiting, which the Veteran contends was the onset of his hepatitis B. The examiner is advised that the Veteran is competent to report in-service events and treatment, and his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. A rationale for all requested opinions shall be provided. The reasons and bases for each opinion are to be fully explained with a complete discussion of the evidence of record and sound medical principles, including the use of any medical literature (if deemed warranted), which may reasonably explain the medical guidance in the study of this case. 5. Thereafter, the RO/AMC must review the claims file to ensure that the foregoing requested development has been completed. In particular, review the requested examination reports and medical opinions to ensure that they are responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 6. Following the completion of the foregoing, the RO should readjudicate the Veteran's claims. If the claims are not granted in full, supply the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter 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 2014). _________________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).