Citation Nr: 1535381 Decision Date: 08/18/15 Archive Date: 08/20/15 DOCKET NO. 03-25 384A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for hepatitis C. (The issue of entitlement to service connection for the cause of Veteran's death is addressed in a separate Board action.) REPRESENTATION Appellant represented by: William Fletcher, ESQ WITNESSES AT HEARING ON APPEAL Appellant and the Veteran ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The Veteran served on active duty from May 1974 to March 1980. The appellant is the Veteran's surviving spouse. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a May 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In that May 2002 rating action, the RO denied the Veteran's claim of service connection for hepatitis C. After the appeal was perfected, the Board remanded the claim in November 2004 for further development. The Veteran's claim was remanded again in March 2007, in order to schedule him for a personal hearing. In regards to the Veteran's underlying claim of service connection for hepatitis C, he and the appellant appeared and testified at a Travel Board hearing at the Montgomery RO in August 2007. A transcript is of record. In November 2007, the Board denied service connection for hepatitis C. The Veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court). In December 2008, the Court granted a joint motion for remand, vacating the Board's November 2007 decision and remanding for additional proceedings. The Veteran died in January 2009 prior to adjudication by the Board, and in November 2009, the Board dismissed the claim. After the Board dismissed the claim, the appellant, also in November of 2009, filed a request for substitution. See 38 U.S.C. § 5121A (West 2014) (providing the opportunity for substitution of individuals eligible to receive accrued benefits in cases where the claimant dies on or after October 10, 2008). In June 2011, the RO granted the appellant substitution in the appeal. After the appellant was made a substituted party, the Board Remanded the claim to the RO in September 2011. In July 2012, the Veteran's attorney withdrew his representation. Regrettably, the appeal is once again REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND As reported above, in September 2011, the Board remanded the appeal to obtain additional medical information concerning the possible etiology of the Veteran's hepatitis C. The Board specifically requested the following: The RO/AMC should forward the claims folder to an appropriate medical professional for the purpose of obtaining an opinion addressing the nature and etiology of the Veteran's claimed hepatitis C. The examiner is asked to provide an opinion as to whether the Veteran's hepatitis C was at least as likely as not related to his period of service. In so opining, the examiner is asked to comment on the Veteran's lay testimony both in statements submitted to VA and hearing testimony, as well as his contentions that he was a "volunteer medic" and provided first aid care during field exercises. The examiner is also asked to comment on the private treatment records, dated in 2002, that note a history of intranasal cocaine use during service in the 1970s. The examiner should provide rationale for all opinions given. If the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. The record reflects that a review was provided by a nurse in October 2011. The electronic record also reveals that such a review was accomplished prior to the RO having all of the Veteran's medical records in the file so that the whole file could be assessed. Nevertheless, the nurse did provide an opinion, which is of record. The reviewer was asked to provide comments with respect to the Veteran's hearing testimony along with his statements that he "served" as a medic when performing unit exercises where he was exposed to the blood of other service members. In the examination report, the nurse acknowledged the statements but did not specifically address the comments or provide a rationale as to her apparent belief that the statements were unreliable with respect to the Veteran's possible blood exposure. The Board finds that the review results are inadequate because the report fails to provide answers to the questions raised by the Board and that any decision predicated upon those results would not withstand judicial scrutiny. See Stegall v. West, 11 Vet. App. 267 (1998). Thus, the claim is REMANDED to the AMC for the following actions: 1. The AOJ should arrange for the Veteran's complete records to be reviewed by a medical doctor. The reviewer should provide an opinion concerning the etiology of the Veteran's claimed hepatitis C. The reviewer is asked to express an opinion as to whether it is at least as likely as not that the Veteran's hepatitis C was incurred during his military service, to include his alleged duties as a "volunteer medic" where he may have provided first aid care during unit field exercises. The examiner is also asked to comment on the private treatment records, dated in 2002, that note a history of intranasal cocaine use during service in the 1970s. The reviewer must provide a rationale for all opinions. 2. Thereafter, the AOJ should readjudicate the claim. If the benefits sought on appeal remain denied, the appellant should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. 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 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). _________________________________________________ JAMES L. MARCH 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).