Citation Nr: 1641511 Decision Date: 10/26/16 Archive Date: 11/08/16 DOCKET NO. 12-21 985 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, claimed as depression. 2. Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Haddock, Counsel INTRODUCTION The Veteran had active service from August 1970 to November 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by the Roanoke, Virginia Department of Veterans Affairs Regional Office (RO). In his August 2012 substantive appeal, the Veteran requested a hearing before a member of the Board, which was scheduled for March 2015. In a February 2015 letter, the Veteran reported that he was unable to attend the hearing as a result of his medical condition. While the Veteran did ask if his daughter could attend the hearing in his place, pursuant to regulation only the Veteran or his authorized representative can present argument at a hearing before the Board. 38 C.F.R. § 20.701. In this case, the Veteran is represented by The American Legion. As the Veteran did not request that the hearing be rescheduled and he clearly stated that he was unable to attend, the Board considers his request for a hearing to be withdrawn. This appeal is being REMANDED to the Agency of Original Jurisdiction (AOJ). REMAND The Veteran contends his hepatitis C is etiologically related to service. He primarily contends that the hepatitis C is from tattoos in service. The Veteran's August 1970 entrance examination contains no documentation of any tattoos, while the November 1971 separation examination notes that he had two tattoos, one on each arm. In a January 2010 hepatitis C questionnaire completed by the Veteran, he reports a history of intravenous drug use, intranasal use of cocaine, high risk sexual activity, tattoos, and sharing razors. In other statements on file, he clarified that the sharing of razors and some of the high risk sexual activity occurred in service. The Veteran attended a September 2012 VA examination, at which time the examiner noted that the Veteran's risk factors for hepatitis C included intravenous drug use, intranasal cocaine use, high risk sexual activity, and other direct percutaneous exposure to blood (such as by tattooing, body piercing, acupuncture with non-sterile needles, shared toothbrushes and/or shaving razors). The examiner opined that the Veteran's hepatitis C was less likely than not related to his active service, to include the tattoos he received therein, and that it was more likely to his admitted intravenous drug use, intranasal cocaine use, and high risk sexual activity. The basis for the examiner's opinion apparently was the absence of signs or symptoms of hepatitis C at the time of separation from active service. The Board finds the September 2012 VA examiner's opinion to be inadequate. The examiner's opinion concerning the tattoos was based on the absence of hepatitis C symptoms during service, even though it is common knowledge that hepatitis C usually is quiescent for decades after infection. In addition, the examiner did not address the relative likelihood of each potential vector of transmission, and the Board points out that some of the high risk sexual activity at issue is claimed by the Veteran to have originated in service. On remand, another VA examination is necessary. Turning to the depression, the Veteran contends that he has depression as a result of his active service and he cites to a psychiatric evaluation that took place while on active service. A review of the September 1971 psychiatric evaluation notes that the Veteran was assessed with an emotionally unstable personality at that time. The post-service medical records show that he was admitted for psychiatric treatment, with a diagnosis of depression, in 1987 and again in 2009. A VA examination was ordered in May 2012 to determine the nature and etiology of the Veteran's current mental health condition; however he arrived under the influence of methamphetamines and asked if the examination could be rescheduled. The examination has not been rescheduled and the Board finds that a medical opinion is necessary before a decision can be rendered on this issue. As such, remand is necessary. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination by a physician with appropriate expertise to determine the nature and etiology of the Veteran's hepatitis C. The electronic claims file must be made available for review by the examiner, and any indicated studies should be performed. After examination and review of the claims folder, the examiner should identify each risk factor present in the Veteran's history for transmission of hepatitis C, the origin of the risk factor (i.e., in service, before service, or post service), and the relative likelihood of each risk factor having resulted in the transmission of hepatitis C to the Veteran. The examiner is then requested to offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the disability is related to service? The examiner must provide a complete rationale for each opinion expressed. 2. Schedule the Veteran for a VA psychiatric examination to determine the nature and etiology of any currently diagnosed psychiatric disability. The electronic claims file must be made available to the examiner for review, and any indicated studies should be performed. After examination and review of the claims folder, the examiner is asked to respond to the following: A) Does the Veteran have a current diagnosis of a psychiatric disability, or has any such diagnosis been present during the pendency of the appeal period? B) For any diagnosed psychiatric disability, is it at least as likely as not (50 percent or greater probability) that the disability is related to any aspect of active service? The examiner must provide a complete rationale for each opinion expressed. 3. Then, readjudicate the claims on appeal. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then return the case 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). ______________________________________________ Thomas H. O'Shay Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs