Citation Nr: 1514385 Decision Date: 04/03/15 Archive Date: 04/09/15 DOCKET NO. 09-01 158 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a right foot disability. 2. Entitlement to service connection for a hepatitis C disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. A. Hoffman, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1976 to April 1979. This matter is before the Board of Veterans' Appeals (Board) on appeal of a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In February 2015 a video conference hearing was held before the undersigned Veterans Law Judge. A transcript of the testimony is associated with the claims file. This appeal was processed using the Veteran's electronic VA folders (Virtual and VBMS) paperless claims processing system. The issue of service connection for an ankle injury has been raised by the record in a July 8, 2010 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The Veteran seeks service connection for a right foot and hepatitis C disability. In February 2015 testimony regarding the Veteran's right foot disability he stated he was an inpatient at the Fort Gordon hospital in 1976. Documents in the claims file show the RO pursuing service medical records from Fort Gordon in February 1993, but not inpatient medical records. Under the duty to assist, VA must make reasonable efforts to assist claimants in obtaining the evidence that is necessary to substantiate their claims, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2014). While VA regulations provide that VA will make as many requests as are necessary to obtain relevant records from a federal department or agency, these regulations also instruct that VA will end such efforts if it concludes that the records sought do not exist, or that further attempts to obtain them would be futile. See 38 C.F.R. § 3.159(c)(2). Under 38 C.F.R. § 3.159(e), when VA becomes certain that Federal records do not exist or that further efforts to obtain them would be futile, then VA must provide the Veteran with oral or written notice of that fact. 38 C.F.R. § 3.159(e). If such notice is oral, VA must make record of the notice. Id. The notice must contain the identity of the records VA was unable to obtain, an explanation of the efforts VA made to obtain the records, a description of any further action VA would take regarding the claim, and notice that the veteran is ultimately responsible for providing the evidence. Id. The Board finds it must remand this claim and direct the AOJ to attempt to locate these inpatient hospital records, document these attempts, and notify the Veteran in compliance with 38 C.F.R. § 3.159. Additionally, in a July 2010 statement in support of claim the Veteran stated that he was delayed in reporting to Korea because of his right foot injury. The Veteran's personnel records are not part of the record. On remand the AOJ should attempt to locate the Veteran's service personnel records. The Veteran submitted a claim for service connection for hepatitis C in January 2007. Some testimony at the Board hearing in February 2015 suggests the Veteran may no longer have a diagnosis of hepatitis C, the Veteran, however, testified to having a current diagnosis. In testimony the Veteran stated he believes his hepatitis C may be a result of his service in Korea because he did not have hepatitis C prior to serving in Korea, was diagnosed with hepatitis C after returning from Korea, and affirmed risky sexual behavior while in service. Reports from the Cleveland VAMC include a medical history stating that the Veteran was diagnosed with the condition in 1992. The Veteran was not originally afforded a VA examination in connection with his claim for service connection of hepatitis C. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in service connection claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. Here, there is evidence of a current disability and evidence that an injury was incurred in service but the medical evidence is insufficient. Therefore, an examination is warranted under McLendon. The most recent VA treatment records in the virtual claims file are dated August 24, 2007. The Veteran's more recent VA treatment records should be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain copies of all the Veteran's VA treatment records dated from August 24, 2007 to present. 2. Request the Veteran's military service personnel records. If, after continued efforts to obtain Federal records the AOJ concludes that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). The Veteran must then be given an opportunity to respond. 3. Request any inpatient treatment records for the Veteran at the Fort Gordon military hospital in 1976. If, after continued efforts to obtain Federal records the AOJ concludes that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). The Veteran must then be given an opportunity to respond. 4. Request that the Veteran provide the names and addresses of all medical providers who have records regarding his treatment for his claimed disabilities which have not already been associated with the claims file. After the Veteran has signed any appropriate releases, obtain and associate with the claims file all of the Veteran's treatment records. All attempts to procure records should be documented in the file. If any records cannot be obtained, a notation to that effect should be inserted in the file. The Veteran should be notified of unsuccessful efforts to procure records in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 5. After the above has been completed, afford the Veteran a VA medical examination for hepatitis C. The examination should determine the nature and etiology of any diagnosed hepatitis C disability. The claims folder should be forwarded to the examiner for review. Following review of the claims folder, the examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that any current hepatitis C disability is related to the Veteran's active military service. The VA examiner's attention is directed to the competent lay statements of the Veteran regarding risky sexual behavior while in service. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 6. Then readjudicate the Veteran's claims after ensuring that any other development deemed warranted is complete. If the benefit sought is not granted to the Veteran's satisfaction, the Veteran and the Veteran's representative should be furnished a supplemental statement of the case and afforded the opportunity to respond. The case should then be returned to the Board for appellate review, if indicated. 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). _________________________________________________ S. S. TOTH 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).