Citation Nr: 1610320 Decision Date: 03/15/16 Archive Date: 03/22/16 DOCKET NO. 09-44 924 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. E. Miller, Associate Counsel INTRODUCTION The appellant is a Veteran who had active service in the U.S. Marine Corps from November 1972 to November 1976. He had service in the Republic of Vietnam. This matter came before the Board of Veterans' Appeals (Board) on appeal from a February 2008 decision of the Chicago, Illinois, Regional Office (RO) which denied service connection for hepatitis C. The Veteran was scheduled for a November 2011 videoconference hearing but the record reflects that he did not appear for the hearing and, thus, his hearing request is deemed withdrawn. In June 2013, the Board remanded the issue of service connection for hepatitis C to the RO for additional action. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran contends that service connection for hepatitis C is warranted because he claims he first contracted the disease while in service via an air gun injector used to deliver his immunizations. The June 2013 Board Remand provided the following directive to the VA examiner: The clinician is requested to furnish an opinion concerning whether it is at least as likely as not (50 percent probability or greater) that the Veteran's hepatitis C is causally related to his military service. The clinician should provide a complete rationale which discusses the Veteran's inoculations in service, his injection drug use, his cocaine use, his sexual history, and all other pertinent facts, if any. In July 2013, the Veteran was afforded a VA examination. The examiner stated that the Veteran had a diagnosis of hepatitis C. The examiner opined that the Veteran's disease was at least as likely as not incurred in or caused by service. The examiner provided the following rationale: "Veteran started drinking alcohol and IV cocaine and snorting in service in 1973. He continued cocaine abuse until 2002. He still abuses alcohol. He also had multiple sexual partners who were prostitutes in service." The examiner did not address the Veteran's in-service vaccinations. The RO's compliance with the Board's remand instructions is neither optional nor discretionary. Stegall v. West, 11 Vet. App. 268 (1998). The July 2013 Board Remand also directed that the RO should attempt to obtain clinical documentation from the Veteran's period of incarceration. The record does not reflect that the Veteran ever returned the Authorization and Consent to Release Information for those treatment records. The RO should again attempt to secure these records. The record reflects that the Veteran receives treatment for his hepatitis C through VA. Clinical documentation after August 2013 is not of record. VA should obtain all relevant VA clinical documentation and other records which could be potentially helpful in resolving the Veteran's claim. Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he provide information as to all treatment of his hepatitis C, including the names and addresses of all health care providers whose records have not already been provided to VA. Upon receipt of the requested information and the appropriate releases, the RO should contact all identified health care providers, including the facility where the Veteran was incarcerated from 1978 to 1983, and request that they forward copies of all available clinical documentation pertaining to treatment of the Veteran, not already of record, for incorporation into the record. 2. Associate with the record any VA clinical documentation not already of record pertaining to the treatment of the Veteran for hepatitis C, including that provided after August 2013. 3. Schedule the Veteran for a VA examination to obtain an opinion as to the nature and etiology of hepatitis C. All indicated tests and studies should be accomplished and the findings reported in detail. The examiner should advance an opinion as whether it is as likely as not (i.e., probability of 50 percent or more) that his hepatitis C had its onset or originated during active service. The examiner should expressly address whether the Veteran's in-service immunizations caused his hepatitis C. In addition, the examiner must explain whether the risk of getting hepatitis through high risk sexual activity involved contact with infected blood. All relevant medical records must be made available to the examiner for review of pertinent documents therein. The examination report should specifically state that such a review was conducted. A rationale for all opinions should be provided. 4. Then readjudicate the issue on appeal. If the benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case (SSOC) which addresses all relevant actions taken on the Veteran's claim for benefits, to include a summary of the evidence considered, since the issuance of the statement of the case. An appropriate period of time should be allowed for response before the case is returned to the Board. 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 or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ MATTHEW D. TENNER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the Court. 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).