Citation Nr: 1603635 Decision Date: 02/03/16 Archive Date: 02/11/16 DOCKET NO. 12-06 439 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for Hepatitis C. 2. Entitlement to service connection for degenerative joint disease of the cervical spine, claimed as a neck condition. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs ATTORNEY FOR THE BOARD Marcus J. Colicelli, Associate Counsel INTRODUCTION The Veteran had active service from July 1987 to October 1990. This matter comes before the Board of Veterans' Appeals (BVA or Board) from April 2008, March 2009, and July 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Veteran submitted a notice of disagreement (NOD) in September 2009; a statement of the case (SOC) was issued in October 2011 and the Veteran perfected his appeal with the timely filing of a VA Form 9 (substantive appeal) in November 2011. This appeal was processed using the Veterans Benefits Management System (VMBS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. In addition to the VBMS claims file, there is a Virtual VA paperless file associated with the Veteran's case. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran seeks entitlement to service connection for Hepatitis C and for degenerative joint disease (DJD) of the cervical spine. 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. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015). Hepatitis C The Veteran alleges that his current Hepatitis C is due to jet-gun immunization treatments he received while in service. See September 2009 VA Form 21-4138 ("numerous veterans who have developed Hepatitis C showing that in all likelihood these veterans have developed this disease because of being innoculated with the same instruments in the in-processing procedure"). The Veteran maintains that his current diagnosis of Hepatitis C was incurred in service, by way of immunizations from air jet guns. Id., see also November 2011 VA Form 9 ("I was inoculated with a jet gun...this air gun was a direct result of me being exposed to the Hepatitis C virus.") The Veteran's immunization records for his active duty confirm that he was administered immunizations throughout his military service. As there is no evidence to contradict the Veteran's reports, they are therefore accepted as credible. The Board notes that the Veteran was afforded a VA examination in May 2009. See May 2009 VA examination. The Veteran was examined in-person, and relevant portions of the Veteran's medical records were noted, included his April 2004 diagnosis of Hepatitis C. Id. The examiner did not note that the Veteran's entire c-file, including service records, were reviewed, but did indicate that the Veteran "apparently" tested positive for cocaine while in the military. Id. The examiner concluded that "it is not [sic] at least as likely as not" that the Veteran's Hepatitis C was due to contamination from a "vaccination gun." Id. The sole rationale provided for this opinion was that the Veteran's disorder was "more probably...related to cocaine abuse." Id. The Board finds that the examiner did not adequately explain the rationale behind the negative nexus opinion. Specifically, the Board notes that the VA Secretary has recognized "air gun" inoculations as a "biologically plausible" transmitter of Hepatitis C. See VBA Fast Letter 04-13 (June 29, 2004). The conclusory statement "more probably," without any further rationale is speculative and inadequate. This is especially true in light of the examiner's seeming failure to review the Veteran's complete record, including his service treatment records, as indicated by the examiner's use of the verbiage "apparently" in regard to the Veteran's in-service drug abuse history. In light of the finding by the VA Secretary and the Veteran's lay statements, the Board finds that the May 2009 VA examination is incomplete and requires clarification because the examiner did not sufficiently explain why the inoculations received by the Veteran during service did not contribute in any way to his current Hepatitis C. Therefore, the file should be forwarded to the VA examiner who conducted the May 2009 VA examination, if available, to obtain an addendum medical opinion concerning whether the Veteran's Hepatitis C arose during service or is otherwise medically related to service, to include air gun inoculations. DJD of the Cervical Spine The Veteran alleges that his current DJD of the cervical spine is due to an in-service assault. See August 2008 VA Form 21-0781a ("While I was stationed overseas...I was severely beaten...around September 1988...I sustained a serious neck injury...I've never been the same and I believe it is one of the causes of my PTSD and degenerating disc disease."). Furthermore, it is noted in service medical records that the Veteran was treated for injuries sustained from a "fight" in August 1988, including "severe pain in neck." See August 1988 Chronological Record of Medical Care. In March 2008 the Veteran was afforded a VA examination for his spine. See March 2008 VA examination. The Veteran was examined and a review of the c-file was conducted, with the examiner noting a record of a "1998" assault and neck pain following a subsequent injury in 2006. Id. The examiner found that it is less likely than not that the Veteran's current cervical spine disorders are "related to his history of neck injury while in the military service." Id. The rationale provided for this conclusion was that "it would be expected" that the Veteran would have sought treatment within the 18 years following his in-service injury. Id. The examiner additionally noted that with regard to the Veteran's "second injury," that details were not "forthcoming" and "complete records are not available." Id. While the examiner noted review of the Veteran's c-file, it was also contradictorily noted that the "complete records" were not available. Moreover, the examiner included no discussion of the Veteran's description of the assault during service and continuing neck pain following service, even misidentifying that the assault happened in "1998". The opinion is therefore inadequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). A remand is necessary to obtain a new VA medical opinion. In rendering the new opinion, the examiner should consider the Veteran's statements regarding the occurrence of his neck pain, in addition to his statements regarding the continuity of symptomatology. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of evidence in the service treatment records to provide a negative opinion). Any updated treatment records should be obtained and associated with the claims file. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the file all updated treatment records. 2. Obtain an addendum opinion for the May 2009 VA examination for Hepatitis C. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The examiner must be provided the claims folders, access to Virtual VA and VBMS, and a copy of this Remand. The examiner should opine as to whether it is at least as likely as not (i.e. 50 percent or greater probability), less likely as not (i.e. less than 50 percent), or more likely than not (i.e. greater than 50 percent probability) that the Veteran's in-service air gun inoculations contributed in any way to the Veteran's current diagnosis of Hepatitis C or is medically related to service. In providing this opinion, the examiner must acknowledge and discuss any lay evidence, and the examiner is to consider the VBA Fast Letter 04-13 (June 29, 2004), and any other pertinent medical data and/or medical literature, which may reasonably illuminate the medical analysis in the study of this case, including a discussion of the Veteran's documented in-service cocaine abuse, and the HepC risk factors noted in the April 2004 VAMC Gastroenterology Progress Note ("HepC risk factors: was involved in bloody fights, had unprotected sex"). A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. The examiner should discuss the particulars of this Veteran's medical history and the relevant medical science as applicable to this case, which may reasonably explain the medical guidance in the study of this case. 3. Obtain an addendum opinion to the March 2008 VA examination for the Veteran's neck. If the requested opinion cannot be offered without examining the Veteran, the Veteran should be scheduled for an appropriate VA examination to determine the nature and etiology of any and all current neck disorders. After a review of the record, to include all medical records and lay statements contained therein, the examiner should offer an opinion regarding the following: Based on a full review of the record, to include the Veteran's lay statements regarding the incurrence and continuity of symptomatology of his neck pain, is it more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that the Veteran's neck disorders had their onset during service or are in any other way causally related to his active service. The claims folder must be provided to the examiner for review. The examiner must state in the examination report that the claims folder has been reviewed. In providing this opinion, the examiner must acknowledge and discuss any lay evidence of a continuity of symptomatology. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of evidence in the service medical records to provide a negative opinion). The examiner must also discuss in detail the Veteran's 1988 in-service assault and resulting complaints of neck pain. 4. The AOJ should review the examination reports/opinion to ensure that they contain the information and opinions requested in this remand and are otherwise complete. 5. After completion of the above, the AOJ must re-adjudicate the issues of entitlement to service connection for Hepatitis C and for DJD of the cervical spine. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded an opportunity to respond for the case is returned to the Board. The Veteran 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 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) (2015).