Citation Nr: 1618118 Decision Date: 05/05/16 Archive Date: 05/13/16 DOCKET NO. 13-32 091 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for hepatitis C. 2. Entitlement to an initial compensable disability rating for bilateral hearing loss. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. J. Tang, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1975 to January 1976. This case is before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). All documents on the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS) have been reviewed, including a copy of a transcript of the February 2016 Board hearing presided over by the undersigned Veterans Law Judge, which has been associated with the claims file. The matters regarding tinnitus and bilateral bone spurs on feet were raised in a November 2013 Form 21-526EZ, but have not been addressed by the Agency of Original Jurisdiction (AOJ). The Board does not have jurisdiction over these matters and refers them to the AOJ for clarification and appropriate action. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The Veteran was last afforded a VA examination regarding hearing loss in March 2014. Since then, the Veteran has reported worsening hearing loss symptoms. See February 2016 Board hearing transcript at p. 7. The Board acknowledges that the Veteran submitted a February 2016 private audiogram report. However, given that the medical professional who conducted this private examination is a "Licensed Hearing Instrument Specialist," it is unclear whether the medical professional is a state-licensed audiologist, as is required for rating purposes under 38 C.F.R. § 4.85(a). Accordingly, based on reports of worsening symptoms since the last VA examination in March 2014, the Veteran should be afforded a new VA examination to determine the current severity of the Veteran's bilateral hearing loss. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Regarding hepatitis C, the Veteran argues that he has hepatitis C that is related to air gun inoculations he reportedly received in service. Though the medical evidence of record shows that the Veteran's history includes other risk factors for hepatitis C, including intravenous drug use, it is unclear whether the Veteran's hepatitis C is etiologically related to his reported in-service air gun inoculations. Accordingly, further medical inquiry is required, and a VA medical opinion should be obtained to determine the etiology of the Veteran's hepatitis C. McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also M21-1.III.iv.4.l.2.g (providing that a medical opinion should be requested when intranasal cocaine use and intravenous drug use are not the only risk factors). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he provide or identify any outstanding records pertinent to his bilateral hearing loss and hepatitis C. He should be asked to authorize the release of any outstanding pertinent non-VA medical records. All attempts to fulfill this development should be documented in the claims file. 2. Obtain outstanding relevant VA treatment records, including records dating from July 2014 to present. 3. Afterward, obtain a VA medical opinion regarding the etiology of hepatitis C. Make the claims file available to the examiner for review of the case (to include records on Virtual VA and VBMS). The examiner is asked to note that this case review took place. The examiner is asked to provide an opinion as to whether it is at least as likely as not (probability of 50 percent) that the Veteran's hepatitis C is etiologically related to service, specifically to include as a result of air gun inoculations in service. For purposes of this opinion only, the examiner is asked to presume that the Veteran had air gun inoculations in service. For purposes of the above opinions, the examiner's attention is invited to the following: a. The Veteran's contention that he was hospitalized at St. Joseph's in March 1976 through May 1976 for abdominal symptoms, nausea and dehydration, and that these symptoms were symptoms of hepatitis C. See e.g., November 2011 Form 21-4142; February 2016 Board hearing transcript at p. 9 (Veteran reported that his hospital providers "determined that I had hepatitis....Now this is before hepatitis C had actually been discovered). Note that the unavailability of medical records to corroborate the Veteran's report of hospitalization and symptoms in 1976, alone, is not sufficient to render the Veteran's report not credible. b. VA treatment records for hepatitis C. See e.g., February 2012 VA infectious disease note and September 2011 VA infectious disease consult by Dr. T. T. c. The Veteran's report that when the servicemen received inoculations in the shoulder by air-guns, they caused the shoulder to bleed, and his contention that there were too many sterilizations done to repeatedly sterilize the air guns between sterilizations. See February 2016 Board hearing transcript at p. 8-9. 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. 4. Afterward, schedule the Veteran for a VA audiological examination to determine the current nature and severity of the Veteran's bilateral hearing loss. After performing all necessary testing, the examiner is asked to address the severity and symptoms of the Veteran's bilateral hearing loss. 5. Complete the above development and any additional development that is deemed warranted. Then readjudicate the claims on appeal and furnish the Veteran and his representative a supplemental statement of the case if the matter is not resolved to the Veteran's satisfaction. Provide an opportunity to respond before the claim is returned to the Board. The appellant has the right to submit additional evidence and argument on the 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). ______________________________________________ K. J. Alibrando Veterans Law Judge, Board of Veterans' Appeals