Citation Nr: 1805200 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 07-36 780 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for hepatitis C. 2. Entitlement to service connection for a liver disability as secondary to hepatitis C. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his spouse. ATTORNEY FOR THE BOARD B. P. Keeley, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from January 1967 to January 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in June 2016. A copy of the hearing transcript has been associated with the claims file. These matters were last before the Board in May 2017, at which time, the Board remanded them to the RO for further development. As discussed below, the Board finds that another remand is required. This is a paperless appeal located on the Veterans Benefits Management System (VBMS), Virtual VA paperless claims processing system, and Caseflow Reader. The Board has reviewed the electronic records maintained these systems to ensure consideration of the totality of the evidence. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran maintains that he is entitled to service connection for hepatitis C, asserting that he became infected with the disease while on active duty when he received inoculations with a Jet injector. Furthermore, the Veteran maintains that he is entitled to service connection for a liver disability as secondary to his hepatitis C. In May 2017, the Board remanded these matters for further development, to include VA examinations. A Board remand confers upon an appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271; D'Aries v. Peak, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). Additionally, when VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran was afforded a VA hepatitis, cirrhosis and other liver conditions examination in June 2017. Diagnoses of hepatitis C and liver fibrosis were noted, both with diagnosis dates of 2008. The Veteran reported that he had elevated liver enzymes while at Fort Benning in 1971, which was when he had a vaccine injection. The Veteran denied any blood transfusions and though he did acknowledge using IV drugs while in the military, he denied sharing needles. The Veteran acknowledged drinking while in the military, as well as using cocaine. The examiner opined that the Veteran's hepatitis C was less likely than not incurred in or caused by the Veteran's service. The examiner stated that there is no evidence that hepatitis C started during the Veteran's service, noting no evidence of laboratory reports showing abnormal liver enzymes. The examiner further noted that the Veteran's report of medical history at his discharge notes no jaundice and no to any drug habit. The examiner noted that in August 1991 the Veteran's liver enzymes were normal and that the first documented hepatitis C positive test was in September 2008, and further noted the Veteran's risk factors as being illicit IV drug use, blood or needle stick exposure, multiple sexual partners, tattoo, and intemperate alcohol use. Finally, the examiner noted that the Veteran's in service diagnosis of gonorrhea does not confirm hepatitis C, noting that "it takes about 7 weeks after infection for the liver enzymes to appear abnormal". Initially, the Board notes that a January 2000 report from Specialty Laboratories notes hepatitis C was detected, whereas the June 2017 VA examiner stated that the first documented hepatitis C positive test was in September 2008. This indicates to the Board that a thorough examination of the Veteran's claims file was not performed. Furthermore, the June 2017 VA examiner noted the Veteran's risk factors as being illicit IV drug use, blood or needle stick exposure, multiple sexual partners, tattoo, and intemperate alcohol use. The Board notes that in the September 2008 VA treatment record which documents hepatitis C, in addition to the select risk factors mentioned by the examiner, were noted two other risk factors: unexplained liver disease or enzymes and military service in Vietnam. Finally, the Board notes that the Veteran's lay contention that he was exposed to the hepatitis C virus via a Jet injector while on active duty was not discussed. For all of these reasons, the Board finds that the June 2017 VA examination is inadequate and, as such, these matters must be remanded for a new, adequate examination. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA treatment records. All records obtained must be associated with the claims file. 2. After, and only after, completion of step one above, schedule the Veteran for a VA examination with a hepatologist to determine the nature and etiology of the Veteran's hepatitis C and any liver disability secondary to said hepatitis C. The examiner must review the Veteran's claims file and elicit a full history from the Veteran regarding his hepatitis C and liver disability. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. After the record review, and a thorough examination and interview of the Veteran, the VA examiner should offer an opinion addressing the following: Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's claimed hepatitis C had its clinical onset during active service or is otherwise related to any in service disease, event, or injury, to include inoculations received via Jet injector. Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's claimed hepatitis C had its clinical onset during active service or is otherwise related to any in service disease, event, or injury. The examiner must list and discuss all of the Veteran's risk factors for contracting hepatitis C., to include inoculations received via Jet injector. Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that any diagnosed liver condition is caused or aggravated by the Veteran's hepatitis C. The examiner's attention is invited to the September 2008 VA treatment record which listed numerous risk factors possessed by the Veteran for developing hepatitis C, to include unexplained liver disease or enzymes and military service in Vietnam. The examiner's attention is further directed to a November 2007 letter submitted by the Veteran in which he referenced an article titled "Living with Hepatitis C". The examiner's attention is also invited to an article regarding Jet injectors, submitted by the Veteran and received in July 2017. The examiner must address the lay statements from the Veteran regarding his claimed disability. All opinions provided must be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate). 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. It is not sufficient to base an opinion on a mere lack of documentation of complaints in the service or post-service treatment records. 3. If, after completing the requested actions and all additional development deemed warranted, the benefits sought remain denied, furnish to the Veteran a Supplemental Statement of the Case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. 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 (2012). _________________________________________________ MICHAEL A. PAPPAS 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).