Citation Nr: 1700935 Decision Date: 01/12/17 Archive Date: 01/27/17 DOCKET NO. 13-19 276 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. Owen, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1971 to May 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which denied service connection for hepatitis C. The Board notes that the appellant resides in Cadyville, New York, so jurisdiction remains with New York. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this case should take into consideration the existence of this electronic record. 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 his hepatitis C was incurred in or aggravated by his active service. Specifically, the Veteran states that he contracted hepatitis C while getting inoculation shots during entry to the Army and before being transferred to South Korea. See September 2011 VA Form 21-4138 (Veteran's Statement in Support of Claim). The Veteran reports that while getting inoculated, he witnessed others with blood running down their arms from the shots and that there were no steps to change needles or clean anything. See May 2012 VA Form 21-4138 (Veteran's Statement in Support of Claim). The Veteran was afforded a VA examination in May 2012. The examiner found that the Veteran had a diagnosis of hepatitis C. However, after viewing the claims file, he found that the Veteran's hepatitis C was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. After noting that the Veteran stated that his tattoo was applied using new needles and sterile technique, the examiner opined that immunizations do not infect people with hepatitis C. Rather, the examiner attributed the Veteran's exposure to hepatitis C to an admission he made during a 2005 VA medical visit, in which the Veteran stated that he got his hepatitis C probably in the 1970s when he was experimenting with IV drugs, and two of the friends with whom he shared needles died of liver disease. The Board finds the May 2012 VA examiner's opinion inadequate, as it did not consider all pertinent evidence and history. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008). Several risk factors for hepatitis have been recognized by VA. These include: transfusion of blood or blood product before 1992, organ transplant before 1992, hemodialysis, tattoos, body piercing, intravenous drug use (from shared instruments), high-risk sexual activity, intranasal cocaine (from shared instruments), accidental exposure to blood products as a health care worker, combat medic, or corpsman by percutaneous (through the skin) exposure or mucous membrane exposure, and other direct percutaneous exposure to blood such as by acupuncture with non-sterile needles or the sharing of toothbrushes or shaving razors. See VA Adjudication Manual, M21-1, Part III, Subpart iv, Chapter 4, Section I.2.e (Risk Factors for HBV and HBC). While the examiner opined that immunizations do not infect people with hepatitis C, he did not address the Veteran's lay statements regarding what he saw while receiving his inoculations. In addition, the Board finds that the May 2012 VA examiner's opinion was not supported by adequate rationale in light of the VA Adjudication Manual, M21-1, Part III, Subpart iv, Chapter 4, Section I.2.e, which indicates that, "[d]espite the lack of any scientific evidence to document transmission of [hepatitis C] with air gun injectors, it is biologically possible." Thus, it remains unclear whether the Veteran's in-service air gun inoculations were a causative factor leading him to contract hepatitis C. Furthermore, the examiner did not consider the additional risk factors, including potential high-risk sexual activity. The Board notes that the Veteran's service treatment records reflect diagnoses of chanchroid and multiple findings of gram negative intracellular diplococci. See June 1972, August 1972, September 1972, and February 1973 service treatment records. Therefore, the Board remands the case, so that a new VA opinion can be obtained regarding whether the Veteran's hepatitis C during service or is otherwise related to any incident of service. Prior to obtaining a VA addendum opinion, any outstanding VA outpatient treatment records should be obtained. The most recent VA outpatient treatment records on file are dated in November 2013. Accordingly, the case is REMANDED for the following actions: 1. Obtain any outstanding VA treatment records dated since November 2013. 2. Then return the Veteran's claim file to the May 2012 VA examiner. If the examiner is unavailable, the claim file must be provided to an examiner who is qualified to give an opinion on hepatitis C, so that a new opinion may be provided. A new examination is only required if deemed necessary by the examiner. The record and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. If a new examination is conducted, the examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with complete explanation in support of such a finding. The examiner must opine on whether the Veteran's hepatitis C at least as likely as not (50 percent or greater possibility) began during active service; or, is related to any incident of service, to include his in-service air gun inoculations. In providing this opinion, the examiner is to specifically consider the VA Adjudication Manual, M21-1, Part III, Subpart iv, Chapter 4, Section I.2.e (Risk Factors for HBV and HBC), that is discussed herein, the Veteran's 1972 and 1973 service treatment records reflecting chanchroid and gram negative intracellular diplococci, the Veteran's lay statements, and any other pertinent medical data and/or medical literature, which may reasonably illuminate the medical analysis in the study of this case. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions, based on his or her clinical experience, medical expertise, and established medical principles. If the examiner finds that the Veteran's hepatitis C was caused by in-service inoculations by air gun injectors, the examiner must include a full discussion of all potential modes of transmission and a rationale as to why the examiner believes the air gun injector was the source for the hepatitis infection. See VA Adjudication Manual, M21-1, Part III, Subpart iv, Chapter 4, Section I.2.e. The examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the causal relationship. Less likely weighs against the claim. 3. After completing the above, and any other development as may be indicated, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued 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 for further appellate consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter 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. PARAKKAL 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) (2016).