Citation Nr: 1802725 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 13-00 233A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for hepatitis C. ATTORNEY FOR THE BOARD J. Crawford, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Marine Corps from April 1966 to January 1968. This appeal comes to the Board of Veterans' Appeals (Board) from a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In May 2016, the Board remanded the claim for further development. Subsequent to the Board's May 2016 remand, the Agency of Original Jurisdiction (AOJ) issued an October 2017 supplemental statement of the case (SSOC) that addressed the Veteran's claim for service connection for hepatitis C. The October 2017 SSOC also included the issue of entitlement to a rating in excess of 70 percent for service-connected posttraumatic stress disorder (PTSD). The Board notes, however, that this issue was adjudicated in the Board's May 2016 decision. Specifically, in that decision, the Board granted an increased initial rating of 70 percent, but not higher, for the Veteran's PTSD. That decision was then effectuated by the AOJ in a June 2016 rating decision. The record does not reflect that the Veteran has attempted to challenge the June 2016 rating decision that implemented the Board's May 2016 decision, and indeed it would not be correct of him to do so. Nevertheless, the AOJ has included the matter of the initial rating to be assigned for the Veteran's PTSD in the October 2017 SSOC. This was clearly done in error; therefore, that issue will not be addressed herein. See Harris v. Nicholson, 19 Vet. App. 345, 348 (2005); cf. Buckley v. West, 12 Vet. App. 76, 84 (1998) ("[D]isposition of a claim by an RO upon remand from the Board does not create a new decision by the [AOJ]."). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran is seeking service connection for hepatitis C. The Veteran contends that he contracted hepatitis C as a result of receiving treatment for shrapnel fragment injuries sustained while he was in the military in 1967. The Veteran asserts that the "blood products" given to him for his wounds was the source of his infection. See, e.g., August 2010 Statement in Support of Claim, January 2012 notice of disagreement, and October 2010 VA examination. The Veteran was afforded a VA examination in October 2010 for his condition. The VA examiner noted that the Veteran had a diagnosis of hepatitis C with an onset date of mid-1990s. The Veteran reported discovering his diagnosis during a routine blood donation. He was diagnosed afterwards at a VA clinic. The VA examiner opined that because of the Veteran's high risk behaviors of alcohol abuse, drug abuse, sharing razors and tooth brushes, high risk sexual practices, and tattoos, both during and after service, it was at least as likely as not that he contracted hepatitis C outside of the military. He opined that hepatitis C was less likely as not (less than 50/50 probability) permanently aggravated by shrapnel injury from a hand grenade shown during active service. In support of this conclusion, the VA examiner stated that because of the Veteran's risky behaviors before, during and after active military service, it was at least as likely as not that he contracted hepatitis C outside the military. The examiner explained that most patients infected with HCV acquired the disease through intravenous drug use or blood transfusion, the latter of which had become rare since routine testing of the blood supply was begun in 1990. Other types of parenteral exposure were also important in specific regions in the world. The VA examiner noted that injection drug use - parenteral exposure to the hepatitis C virus was the most efficient means of transmission. In May 2016, the Board determined the October 2010 VA examination to be inadequate and remanded the claim to afford the Veteran a new VA examination. The Board concluded that the October 2010 VA examination was inadequate because it was internally inconsistent. Specifically, it was pointed out that the examination report noted that the onset of the Veteran's hepatitis C was in the 1990s, yet provided an opinion that it was less likely as not that the Veteran's condition was permanently aggravated by active duty service, which suggested that the condition existed prior to active duty. Further, the Board concluded that the examiner's rationale noted that injection drug use was the most efficient means of transmission, yet did not note that the Veteran had any history of injecting drugs. Lastly, the VA examiner did not address service treatment records which reflected that the Veteran was treated for in-service shrapnel fragment injuries he sustained in September 1967 and what role, if any, it might have played in the Veteran's contraction of hepatitis C. In April 2017, and pursuant to the Board's remand, the Veteran was afforded another VA examination for his hepatitis C. The VA examiner diagnosed hepatitis C with an onset date of 1986. The VA examiner then opined that the Veteran's condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner explained that there was no chronic evaluation or treatment noted for hepatitis C in service, and the Veteran's postservice interval medical records were also silent. The VA examiner noted that after the military, the Veteran worked as an EMT and transported bloody patients. The VA examiner further noted from the Board's May 2016 decision that the Veteran had a history of polysubstance abuse. The VA examiner referenced a portion of the decision that noted that the October 2010 VA examiner had opined that due to the Veteran's high risk behaviors of alcohol abuse, drug abuse, sharing razors, high risk sexual practices, tattoos, and prison time, it was at least as likely as not contracted outside the military. The April 2017 VA opinion is inadequate because it failed to consider the Veteran's lay statements that his diagnosed hepatitis C was incurred as a result of medical treatment he received for in-service shrapnel fragment injuries he sustained in September 1967, as previously directed in the Board's May 2016 decision. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (finding that a remand by the Board confers on the appellant the right to compliance with the remand orders); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (finding that a VA medical opinion was inadequate where the examiner failed to consider whether the Veteran's lay statements presented sufficient evidence of the etiology of the claimed disability); Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (holding that the VA examiner's opinion was inadequate where the examiner impermissibly ignored the appellant's lay assertions that he had sustained a back injury during service). Therefore, on remand, the RO should obtain a new VA addendum medical opinion to address the Veteran's lay assertions regarding the nature and etiology of his hepatitis C. Also, as noted by the Board's May 2016 remand, the October 2010 VA medical opinion suggests that the Veteran's hepatitis C may have existed prior to service. Therefore, the RO should also obtain an opinion that addresses whether the Veteran's hepatitis C pre-existed service and, if so, whether the disorder was not aggravated by service. See 38 U.S.C. § 1111 (2012); 38 C.F.R. § 3.304(b) (2017). Accordingly, the case is REMANDED for the following actions: 1. Obtain any outstanding VA treatment records and associate with the claims file. 2. After the above development has been completed, obtain a VA addendum medical opinion to determine the nature and etiology of the Veteran's hepatitis C. If an opinion cannot be obtained without an examination, then a VA examination should be afforded to the Veteran. The record, including a copy of this remand, must be made available to and reviewed by the examiner. The VA examiner should address the following: (A) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hepatitis C is related to his active military service. Specifically, the VA examiner should address the Veteran's lay statements that that the "blood products" given to him for or treatment of his shrapnel wounds was the source of his infection during service in the 1960s. See, e.g., August 2010 Statement in Support of Claim, January 2012 NOD, and October 2010 VA examination. (B) Whether there is clear and unmistakable (undebatable) evidence that the Veteran's hepatitis C existed prior to the Veteran's active duty service. (C) If the VA examiner determines that there is clear and unmistakable evidence that the Veteran's hepatitis C existed prior to his active duty service, the VA examiner should determine whether there is clear and unmistakable evidence that the pre-existing condition did NOT undergo an increase in severity beyond the natural scope of the disability during the Veteran's active duty service. The examiner should cite to the medical and competent lay evidence of record and explain the rationale for all opinions given. If after consideration of all pertinent factors it remains that the opinion sought cannot be given without resort to speculation, it should be so stated and the provider must (to comply with governing legal guidelines) explain why the opinion sought cannot be offered without resort to speculation. 3. After the above development has been completed, review the file and ensure that all development sought in this remand is completed. Undertake any additional development indicated by the results of the development requested above, and re-adjudicate the claim. If any of the issues remain denied, issue an appropriate SSOC and afford the Veteran the opportunity to respond. The case should then be returned to the Board, if in order, for further review. 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). (CONTINUED ON NEXT PAGE) 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. §§ 5109B, 7112 (2012). _________________________________________________ A. ISHIZAWAR Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).