Citation Nr: 1504695 Decision Date: 02/02/15 Archive Date: 02/09/15 DOCKET NO. 08-38 197 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a right shoulder disorder. 2. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a neck disorder. 3. Entitlement to service connection for a right shoulder disorder, other than gout. 4. Entitlement to service connection for a neck disorder, other than gout. 5. Entitlement to service connection for hepatitis C. 6. Entitlement to compensation benefits pursuant to 38 U.S.C. § 1151 for Hepatitis C. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Lindio, Counsel INTRODUCTION The Veteran served on active duty from December 1975 to February 1976 and from November 1986 to August 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In characterizing these matters on appeal, the Board has considered the decision of the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Boggs v. Peake, 520 F. 3d 1330 (Fed. Cir. 2008). In that decision, the Federal Circuit held that a claim for one diagnosed disease or injury cannot be prejudiced by a prior claim for a different diagnosed disease or injury. Rather, the two claims must be considered independently. See Ephraim v. Brown, 82 F. 3d 399 (Fed. Cir. 1996). Here, the RO previously denied service connection for gout of the neck and right shoulder. (See March and July 2003 rating decisions). However, prior to those decisions, in September 1990, the RO also denied service connection for an upper back disorder, which included the neck. In February 2002, the RO also denied service connection for a right shoulder disorder. As such, any diagnosis of the neck or right shoulder, other than gout, made since the respective, prior September 1990 and February 2002 denials do not constitute different disabilities. As such, new and material evidence is required to reopen his claims for service connection for a right shoulder disorder and a neck disorder. In September 2014, the Veteran testified during a hearing before the undersigned Veterans Law Judge, by videoconference; a transcript of that hearing is of record. In October 2014, the Veteran submitted additional evidence and argument in support of his claims on appeal. Generally, a waiver is necessary prior to the Board reviewing such evidence in the first instance. See 38 C.F.R. § 20.1304. However, in February 2012, the Veteran waived initial RO consideration of any additional evidence that he would provide. As such, the Veteran is not prejudiced by the Board's review of this evidence. The Board notes that, in addition to the paper claims file, the Veteran also has electronic Virtual VA and Veteran Benefits Management System (VBMS) paperless claims files. A review of the documents in such files reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The Board also notes that the Veteran appears to raise multiple claims requesting equitable relief, in the form of restitution of the financial losses that he claims were created due to VA cutting his benefits for a time. (November 2005 VA Form 119 and other correspondence). Such claims are not before the Board; however, the Board notes that it is bound by law and has no authority to grant benefits on an equitable basis. See 38 U.S.C.A. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). See also Owings v. Brown, 8 Vet. App. 17 (1995), quoting Kelly v. Derwinski, 3 Vet. App. 171 (1992) (noting that the Court must interpret the law as it exists, and cannot extend benefits out of sympathy for a particular claimant). The issues of entitlement to service connection for a neck disorder and a right shoulder disorder are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran in this case served on active duty from December 1975 to February 1976 and from November 1986 to August 1989. 2. A final September 1990 RO decision denied the Veteran's last claim for service connection for a neck disorder; the RO found that such a disorder did not develop in service. 3. The evidence associated with the claims file since the September 1990 final denial relates to an unestablished fact necessary to substantiate the Veteran's claim for service connection for a right shoulder disorder. 4. A final February 2002 RO decision denied the Veteran's last claim for service connection for a right shoulder disorder; the RO found that such a disorder did not develop in service. 5. The evidence associated with the claims file since the February 2002 final denial relates to an unestablished fact necessary to substantiate the Veteran's claim for service connection for a right shoulder disorder. 6. In September 2014, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant that a withdrawal of the appeal for service connection for hepatitis C is requested. 7. Hepatitis C is not shown to be proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of VA fault, and is not the result of an event that was not reasonably foreseeable. CONCLUSIONS OF LAW 1. The September 1990 rating decision is final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2014). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for a neck disorder, other than gout. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2014). 3. The February 2002 rating decision is final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2014). 4. New and material evidence has been received to reopen the claim of entitlement to service connection for a right shoulder disorder, other than gout. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2014). 5. The criteria for withdrawal of an appeal, for service connection for hepatitis C, by the appellant have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2014). 6. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for VA treatment of hepatitis C is not established. 38 U.S.C.A. § 1151 (West 2014); 38 C.F.R. § 3.361 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist In this case, the Board is granting in full the claims to reopen the claims for service connection for a right shoulder disorder and a neck disorder. The Board is also dismissing the claim for service connection for hepatitis C, per the Veteran's request. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. As to the 1151 claim, the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In regards to the 1151 claim for hepatitis C, an October 2008 letter informed him of what evidence was required to substantiate his claim for compensation under 38 U.S.C. § 1151 and of his and VA's respective duties for obtaining evidence. Although the RO provided this letter following the May 2007 rating decision, any timing error was cured by its subsequent readjudication of the claim in the May 2014 supplemental statement of the case. The Board observes with regards to the 1151 claim, the Veteran was not provided notice of the evidence and information necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). However, the Board finds no prejudice in proceeding with a decision regarding those claims. In this regard, as the Board concludes herein that the preponderance of the evidence is against the Veteran's 1151 claim, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot. Therefore, the Board finds no prejudice to the Veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the Veteran has been prejudiced thereby). Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and VA has complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). VA has a duty to assist the Veteran in developing his claim, which includes assisting the Veteran in obtaining any outstanding records of identified VA or private medical treatment relevant to his claim, and affording him an examination when appropriate. Relevant to the duty to assist, the Veteran's service treatment records as well as post-service VA treatment records. The Board notes that the Veteran has identified treatment at the University of California San Diego medical center (UCSD) as the cause of hepatitis C and that those records are not associated with the claims file. However, the Board notes that the Veteran did not receive authorization to receive treatment there from VA until November 2001. (undated VA letter to the Veteran indicating that he had been recommended for treatment at the UCSD and that the date the fee basis request was submitted was November 5, 2001). As will be further explained in the decision herein, the medical evidence shows that the Veteran was actually diagnosed with hepatitis C prior to November 2001. The Board further notes that the private medical records, which were addressed in the remand portion of this decision (from Houston Northwest Medical Center and KS.F. Ortopaedic Center P.A.), were also for treatment after the Veteran already had a diagnosis of hepatitis C. Furthermore, he indicated that such treatment was for his orthopedic claims that are addressed in the remand. As such, the Veteran was not prejudiced by VA's failure to obtain such records in conjunction with the hepatitis C claim, as there is clear documentation that he could not have received hepatitis C from those facilities, as he already had hepatitis C prior to any such treatment. Therefore, the Board finds that VA has met its duty to assist the Veteran in obtaining relevant records. In addition, the Veteran underwent a VA examination August 2012. The Board finds that such VA examination is not adequate, as it only appears to find that there is no documentation that the Veteran contracted hepatitis C from VA treatment in San Diego and only included review of records from 2002. However, the Board again notes that the Veteran was diagnosed with hepatitis C prior to his receipt of treatment at the UCSD (i.e. diagnosed in 2000). In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose, as sufficient probative evidence is of record to make a determination on this matter. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). Additionally, in September 2014, the Veteran was provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the September 2014hearing, the undersigned noted the issues on appeal. Additionally, testimony regarding the Veteran's post-service experiences that he alleges caused his hepatitis C, to include his treatment at UCSD. The undersigned further discussed whether the Veteran's claim was for service connection and/or under 1151. The Veteran fully explained that he wished to withdraw the service connection claim and pursue this matter under 1151. Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. See Bryant, 23 Vet. App. at 497. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board may proceed to adjudicate the claims based on the current record. VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claims. II. New and Material Evidence Claim The Veteran contends that he injured his shoulder during service when a partially filled fuel tank dropped on his shoulder and neck. (September 2014 Board hearing). Service treatment records include possible complaints regarding the upper back/neck. (November 1988 service treatment record). During a December 1989 VA examination, the Veteran reported upper back pain, but the VA examiner made no findings regarding the back. In the September 1990 rating decision, the RO noted that the Veteran had complained of upper back pain in service, but that the VA examination showed no findings, other than a full range of motion of the cervical spine. Also, prior to the February 2002 rating decision for the right shoulder disorder claim, service treatment records were generally silent as to any complaints of, or treatment for, the right shoulder. However, starting in June 2000, VA medical records generally document right shoulder complaints following injury. In the February 2002 rating decision, the RO found that there was no evidence showing that the right shoulder disorder had its onset in service or to compensable degree following service to warrant service connection. AOJ decisions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of an AOJ decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C.A. § 7105(b) and (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, and 20.302(a). The appellant did not file an application for review on appeal within one year of the September 1990 rating decision for the neck. As such, that decision is final. As to the February 2002 decision for the right shoulder, the Veteran filed a notice of disagreement in March 2002, which the RO followed with a March 2003 statement of the case. The Veteran did not file a substantive appeal following the statement of the case. Therefore, the February 2002 decision is also final. In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable. As to the neck disorder claim, following the September 1990 rating decision, the Veteran filed a notice of disagreement only with the noncompensable rating granted for his lower back. He did not submit and the AOJ did not obtain any additional new and material evidence regarding the upper back/neck within a year following the September 1990 rating decision. All new evidence received within a year of that rating decision was generally repetitive of the previous evidence of record. In regards to the right shoulder disorder claim, following the February 2002 rating decision, the Veteran filed a separate claim for service connection for gout, which the AOJ separately adjudicated in March and July 2003 rating decisions, and the Veteran did not appeal. The Veteran did not provide any further evidence regarding a right shoulder disorder, other than gout. The AOJ similarly did not obtain any additional evidence regarding a right shoulder disorder, other than gout. The AOJ did not receive evidence pertaining to either claim prior to the expiration of each claim's respective appeal period. See also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). Thereafter, the RO received the appellant's petitions to reopen the current claims in July 2005. In a June 2007 statement, he specified that he was not claiming gout of the neck or right shoulder. Generally, a claim that has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Since the July 2005 claims, the Veteran has provided additional statements regarding a specific injury in-service and continuity of symptoms (September 2014 BVA hearing, June 2007 notice of disagreement) and a new claim that his neck pain in service had been an extension of his in-service headaches (June 2007 statement). The Board concludes that the new lay evidence of record constitutes evidence of a right shoulder and neck disorder due to service. The additional evidence relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim when considered with the old evidence. The claims for entitlement to service connection for a right shoulder disorder and a neck disorder are reopened. III. Service Connection for Hepatitis C The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2014). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2014). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, during his September 21014 Board hearing, the appellant withdrew the appeal for service connection for hepatitis C and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. IV. Hepatitis C Claim under 38 U.S.C. § 1151 The Veteran contends that he developed hepatitis C from treatment fee basis treatment he received, by VA's initiation, at the University of California San Diego medical center (UCSD). He contends that the needles used at UCSD were contaminated and caused his hepatitis C. A. Law and Regulations In pertinent part, 38 U.S.C.A. § 1151 reads as follows: "(a) Compensation under this chapter and dependency and indemnity compensation under chapter 13 of this title shall be awarded for a qualifying additional disability or a qualifying death of a veteran in the same manner as if such additional disability or death were service-connected. For purposes of this section, a disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the veteran's willful misconduct and-- (1) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, either by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title, and the proximate cause of the disability or death was- (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable." Additional disability In determining whether a veteran has an additional disability, VA compares the veteran's condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the Veteran's condition after such care or treatment. 38 C.F.R. § 3.361(b). To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the Veteran's additional disability. Merely showing that a veteran received care or treatment and that the veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease or injury for which the care or treatment was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2). Carelessness, negligence, etc. To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran's additional disability or death, it must be shown that the hospital care or medical or surgical treatment caused the veteran's additional disability or death; and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care or medical or surgical treatment without the veteran's informed consent. Determinations of whether there was informed consent involve consideration of whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32. Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. 38 C.F.R. § 3.361(d)(1). Foreseeability Whether the proximate cause of a veteran's additional disability or death was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2). B. Factual Background and Analysis The Veteran contends that VA, through the UCSD, furnished negligent medical treatment which caused hepatitis C. Specifically, he contends that he was treated with contaminated needles at the UCSD, which caused him to develop hepatitis C. (September 2014 Board hearing). As was noted in the law and regulations section above, to substantiate a claim under 38 U.S.C. § 1151, the evidence must show that VA treatment caused additional disability, and that such additional disability was the result of negligence, carelessness or the like on the part of VA or was due to an event not reasonably foreseeable. Therefore, the Board must first determine whether the Veteran experienced additional disability (claimed as hepatitis C) as a result of his VA treatment (at UCSD). The evidence of record indicates that the Veteran underwent this treatment after November 5, 2001. The Veteran has submitted an undated letter from VA to him indicating that his "doctor has recommended that you receive additional treatment at UCSD Medical Center...Fee Basis." It also stated that the "Date Fee Basis was submitted: 11/5/01". A December 17, 2001 VA medical record documents that the Veteran had reported that he had recently received a shot to the back for pain, which was not helpful. The Veteran indicated that he was receiving this treatment at UCSD. Similarly, in a June 2007 letter, the Veteran reported that his last pain injection at UCSD had been almost five years previously (i.e. in 2002). In that letter he reported that three days following his UCSD treatment he received a phone call to let him know that the instruments had not been sterilized. Given the above evidence, the Veteran appears to contend that he developed his hepatitis C at the UCSD in either the last two months of 2001 or in 2002. The question is whether the Veteran developed hepatitis C due to his treatment at UCSD (in either late 2001 or in 2002). The Veteran's service treatment records include negative findings of hepatitis C, including in January and August 1986. Following his August 1989 separation from service, an August 5, 1999 VA medical record also documents negative findings of hepatitis C. However, a December 11, 2000 VA medical record documents a November 2000 lab finding of a Hepatitis C viral load. A January 12, 2001 VA medical record noted that the Veteran was newly diagnosed with hepatitis C. Given the above evidence, the Veteran had a confirmed a diagnosis of hepatitis C as of January 12, 2001, which was prior to his treatment at the UCSD (which at the earliest would have been in November 2001). Thus his hepatitis C pre-dated his UCSD treatment. As the Veteran already had hepatitis C at the time of UCSD treatment, the question is if he had any additional disability following the UCSD treatment. There is no evidence of record to indicate that his UCSD treatment caused any additional disability on top of his pre-existing hepatitis C, even if, as he claims, he had negligently been treated with contaminated instruments. Additionally, to the extent that the Veteran may contend that in his opinion he has an additional disability due to the use of contaminated instruments on top of his hepatitis C, the Board finds that no such assertions provide a basis for allowance of the claim. The Board notes that, laypersons may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). However, matters of medical diagnosis for disability not capable of lay observation (and, if competently shown, a medical relationship between such disability and service) are matters within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As the appellant is not shown to be other than a layperson without appropriate medical training and expertise to competently render a diagnosis of such a disability due to a delay in his diagnosis or treatment of a ureter obstruction, the lay assertions in this regard have no probative value. See Jandreau, 492 F.3d at 1377 n.4 (lay persons not competent to diagnose cancer); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). "Competent medical evidence" is evidence that is provided by a person qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a). As such, the Veteran can neither support his claim, nor controvert the probative medical evidence of record, on the basis of lay assertions, alone. For the reasons and bases expressed above, the Board finds that the preponderance of the evidence is against the claim of entitlement to compensation under 38 U.S.C. § 1151 for hepatitis C. The benefit sought on appeal is accordingly denied. ORDER As new and material evidence has been received to reopen a claim for service connection for a right shoulder disorder, the appeal, to this extent, is granted. As new and material evidence has been received to reopen a claim for service connection for a neck disorder, the appeal, to this extent, is granted. The appeal concerning service connection for hepatitis C is dismissed. Entitlement to compensation under the provision of 38 U.S.C.A. § 1151 for hepatitis C is denied. REMAND 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 remaining claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran currently contends that both his claimed neck and right shoulder disorders have been chronic since service, specifically following a gas tank falling on him. Given the incidents in service, the Veteran should be afforded a VA examination to determine the etiology of any current neck or right shoulder disorder. 38 C.F.R. § 3.156 ; see McLendon v. Nicholson, 20 Vet. App. 79 (2006). Following his May 2014 supplemental statement of the case, in October 2014, the Veteran submitted two VA Forms 21-4142 to authorize VA to obtain private medical records from the Houston Northwest Medical Center and K.S.F. Orthopaedic Center. P.A. Additionally, the Veteran has reported treatment for the back at the University of California San Diego medical center (UCSD). All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). The Board also notes that the Veteran receives VA treatment through the Houston VA Medical Center. Those records do not appear to be associated with the claims file, though the May 2014 supplemental statement of the case noted electronic review of such records, from May 2007. However, in a September 2007 statement, the Veteran reported that he had signed up for VA treatment in Houston in March 2003. As such, all unassociated VA medical records should be associated with the claims file. Accordingly, the case is REMANDED for the following actions: 1. The AOJ should obtain VA treatment records from the Houston VA medical center, dated from March 2003 to the present. All reasonable attempts should be made to obtain such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. The Veteran should be given an opportunity to identify any non-VA healthcare provider who treated him, specifically including from UCSD. After securing any necessary authorization from him, obtain all identified treatment records, specifically including from the Houston Northwest Medical Center and K.S.F. Orthopaedic Center. P.A. (identified in October 2014 VA Form 21-4142s). All reasonable attempts should be made to obtain identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. After all records and/or responses received have been associated with the claims file, obtain a relevant orthopedic examination for the claimed neck and right shoulder disorders. The claims file and a full copy of this REMAND must be made available to the examiner. The examiner shall note in the examination report that the claims folder and the Remand have been reviewed. Following a review of the paper and Virtual claims files, which includes VA treatment records, the VA medical opinion provider should offer an opinion on the following: a) Does the Veteran currently have a (i) neck and/or (ii) right shoulder disorder? If so, please note the diagnosed disorder(s). b) Is it at least as likely as not (i.e., a 50 percent or greater probability) that any diagnosed neck disorder had its onset during service, or was otherwise related to the Veteran's active military service? c) Is it at least as likely as not (i.e., a 50 percent or greater probability) that any diagnosed right shoulder disorder had its onset during service, or was otherwise related to the Veteran's active military service? In addressing the questions above, the examiner should consider the Veteran's account of: (i) a fuel tank falling on him while in service, and (ii) having experienced headaches and neck pain during service. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The reasons and bases for each opinion are to be fully explained with a complete discussion of the lay and medical evidence of record and sound medical principles, including the use of any medical literature (if deemed warranted), which may reasonably explain the medical analysis in the study of this case. 4. The AOJ should perform any additional evidence it deems necessary. When the development requested has been completed, the case should again be reviewed by the AOJ on the basis of the additional evidence. If the benefit sought is not granted, the AOJ should furnish the Veteran a supplemental statement of the case and a reasonable opportunity to respond before returning the record to the Board for further review. 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 2014). ______________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs