Citation Nr: 1804358 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 09-21 236 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for hepatitis C with cirrhosis of the liver. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD C. J. Cho, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1970 to January 1973, including in the Republic of Vietnam from December 1971 to January 1973. This matter comes before the Board of Veterans' Appeals (Board) from a March 2007 rating decision issued by the Department of Veterans Affairs (VA), Regional Office (RO) in Boston, Massachusetts. During the pendency of the appeal, the Veteran requested a hearing before a Veterans Law Judge; however, in a subsequent September 2011 correspondence, he indicated that he wished to withdraw his hearing request. Therefore, his hearing request has been withdrawn, and the Board will proceed to adjudicate the case based on the evidence of record. See 38 C.F.R. § 20.704 (e) (2017). The Board notes that this case was remanded previously in April 2017. As for the matter of representation, the record reflects that, the Veteran filed an Appointment of Veterans Service Organization as Claimant's Representative (VA Form 21-22) appointing the Massachusetts Department of Veterans Services as his representative in February 2005. However, in September 2017, the Veteran provided another POA and filed a new VA Form 21-22, appointing The American Legion as his representative. The Board notes that a POA may be revoked at any time, and unless specifically noted otherwise, receipt of a new POA constitutes a revocation of an existing POA. 38 C.F.R. § 14.631 (f)(1) (2017). The Board recognizes this change in representation. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although further delay is regrettable, the Board finds that additional development is required before the Veteran's claim can be decided. As an initial matter, remand is warranted to obtain outstanding records. In April 2017, the Board remanded the Veteran's claim, in part, to obtain all pertinent, updated VA and non-VA treatment records, and specifically directed the RO to request from the Veteran any information or authorization necessary for VA to obtain the private treatment records. Accordingly, in May 2017, the RO sent the Veteran a VA Form 21-4142 for the release of records from medical treating providers, but VA did not receive a signed copy of the release. It appears that thereafter, in August 2017, the Veteran submitted a change of address form to VA. Upon review of the Veteran's file, the Board finds that the RO sent the release and other documents to the Veteran's old address and not the new one. The RO should therefore resend the release form to the new address. Additionally, if the Veteran does not provide VA a signed copy of the release, then the RO should request the Veteran obtain the records himself and provide them to VA. 38 C.F.R. § 3.159(e)(iv)(2). Next, the Veteran has contended, in part, that he was in combat in Vietnam when he was exposed to the blood of wounded soldiers that caused him to contract hepatitis C with cirrhosis of the liver. See, e.g., July 2015 Statement of Accredited Representative in Appealed Case; January 2007 Veteran's Statement; July 2006 Veteran's Statement. While the record shows that efforts were made by the RO to verify the Veteran's combat status with regard to his other claims (see March 2006 Rating Decision, in which the RO granted service connection for posttraumatic stress disorder), the record does not show that efforts were made by the RO to verify the Veteran's combat status with regard to the claim on appeal; specifically, the Veteran's contention that he was in combat in Vietnam when he was exposed to the blood of wounded soldiers that caused him to contract hepatitis C with cirrhosis of the liver. See 38 U.S.C. § 1154; Reeves v. Shinseki, 682 F.3d 988, 998 (Fed. Cir. 2012) (finding the Board is required to apply statutory combat presumption when deciding benefits claims of a Veteran who asserts he endured acoustic trauma and hearing loss during combat). Therefore, on remand, the RO should make efforts to verify the Veteran's combat status with regard to his hepatitis C with cirrhosis of the liver claim. Finally, the Board finds remand is also warranted for a new VA etiology opinion from a new VA examiner for the Veteran's hepatitis C with cirrhosis of the liver service connection claim, as the May 2017 VA negative etiology opinion is inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). First, in providing the negative etiology opinion for the hepatitis C with cirrhosis of the liver claim, the May 2017 VA examiner does not appear to have considered the Veteran's and his representative's contention that VA treatment records from 2006 note that the Veteran's hepatitis C with cirrhosis of the liver conditioned existed for 30 plus years, which would coincide around the time he was in Vietnam. See e.g., July 2015 Statement of Accredited Representative in Appealed Case; July 2006 Veteran's Statement. Instead, the examiner merely reported in the VA examination report that the 2006 diagnosis of hepatitis C did not occur during the Veteran's military service, and did not state anything more as to that. Notably, the Board was unable to locate such a document. However, an April 2016 Ambulatory/Outpatient Care note reflects that the Veteran reported that there was IV drug use in service during Vietnam. Upon remand, the Veteran should submit such document or identify in the record, where this evidence exists. Moreover, while the examiner acknowledged that the Veteran had identified using intravenous drug use or intranasal cocaine during service, and furthermore, stated that such drug use is a "known risk factor of hepatitis C," the examiner failed to opine on whether the Veteran's hepatitis C was at least as likely as not (50% or higher degree of probability) related to any of the Veteran's reported drug use during service. The examiner's note that such drug use is a "known risk factor" but failure to state anything more and in relation to the Veteran, the Board is unable to ascertain if this "known risk factor" equates to a less than a 50 percent probability for the Veteran here. See Wise v. Shinseki, 26 Vet. App. 517, 530-31 (2014). Furthermore, he did not address the article on narcotic and alcohol use by U.S. Army enlisted men in Vietnam that was submitted by the Veteran in October 2008. Thus, in the very least, upon remand, the new examiner should consider the article, in addition to the most recent claims file, to render the addendum opinion. Additionally, the May 2017 VA examiner stated that for his negative etiology opinion, he relied upon "available medical literature and scientific evidence"; however, the examiner failed to provide citations to any such medical literature or scientific evidence that he relied upon for the opinion. See May 2017 VA examination report ("Available medical and scientific evidence does not relate development of hepatitis c to herbicide exposure."). Without knowing which medical literature he relied upon for this opinion, the Board cannot assess the opinion or make an informed determination using this opinion as to whether service connection is warranted for the Veteran's hepatitis C with cirrhosis of the liver. See Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012). Based on the foregoing, additional development, more records, and a new nexus opinion from a new examiner addressing the aforementioned concerns, must be obtained before the hepatitis C with cirrhosis of the liver service connection claim can be decided. Accordingly, the case is REMANDED for the following action: 1. Resend the VA Form 21-4142, Authorization and Consent to Release Information to the VA, for his private treatment records and all document(s) that were sent to the incorrect address after the Board's April 2017 remand to the Veteran's new mailing address. Please advise the Veteran if he does not provide VA the signed release, that it is his obligation to obtain the records himself and provide them to VA. Please request that the Veteran submit the 2006 VA record that includes evidence that the Veteran's hepatitis C with cirrhosis of the liver conditioned existed for 30 plus years. See July 2015 Statement of Accredited Representative in Appealed Case; July 2006 Veteran's Statement. 2. Take all appropriate steps to verify whether the Veteran was engaged in combat during the time he was stationed in Vietnam with respect to his contention that that he was in combat in Vietnam when he was exposed to the blood of wounded soldiers that caused him to contract hepatitis C with cirrhosis of the liver. See, e.g., July 2015 Statement of Accredited Representative in Appealed Case; January 2007 Veteran's Statement; July 2006 Veteran's Statement. 3. After steps 1 and 2 are complete, schedule the Veteran for another VA examination, with a different examiner, to determine the nature, extent, and etiology of any currently manifested hepatitis C with cirrhosis of the liver. The Veteran's claims file must be provided to the examiner for review. All appropriate testing should be performed. If, and only if, in step 2, the RO found that the Veteran was engaged in combat during the time he was stationed in Vietnam, the examiner should be additionally instructed to specifically assume that the Veteran was in fact exposed to the blood of wounded soldiers. After examining the Veteran and reviewing the entire record, the examiner should provide an opinion responding to the following questions: a) Is it at least as likely as not (50% or higher degree of probability) that the Veteran's hepatitis C with cirrhosis of the liver had its onset in service? b) Is it at least as likely as not (50% or higher degree of probability) that the Veteran's hepatitis C with cirrhosis of the liver is otherwise related to his active service, to include the reported in-service events of 1) exposures to the blood of wounded soldiers, 2) vaccinations, and 3) use of drugs for self-medication during stressful times. See July 2006 Veteran's statement. i) The examiner should also comment on April 19, 2006, VA ambulatory/outpatient care note that reports that the Veteran reported that there was IV drug use in service. A rationale should be provided, to include specific discussion of the medical principles involved and the relevant facts. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., diagnosis, etiology) as it is to find against the conclusion. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The Agency of Original Jurisdiction should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) Any opinion expressed by the VA examiner should be accompanied by a complete rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Furthermore, if medical literature is relied upon in rendering this determination, the VA examiner should identify and specifically cite each reference material utilized. 4. Thereafter, readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case. The Veteran and his representative should be afforded the applicable time period to respond. 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 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 (West 2012). _________________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 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).