Citation Nr: 1805747 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 14-10 154 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for hepatitis C REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD N. Pendleton, Associate Counsel INTRODUCTION The Veteran served active duty in the U.S. Army from February 1963 to February 1966. This appeal comes before the Board of Veteran's Appeals (Board) from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In December 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) with the Veteran being located at the RO and the VLJ in Washington, D.C. A copy of the hearing transcript has been associated with the file. The Board acknowledges that the Veteran has active claims for entitlement to service connection for left eye chorioretinitis (claimed as left eye condition) and for bilateral Osgood-schlatter's disease (claimed as bilateral knee). However, those matters are not certified before the Board at this time. The only issue certified to the Board is hepatitis C. (See May 2015 Form 8). As such, discussion will focus solely on the matter at issue. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND A remand is required as a VA examination is necessary to adjudicate the claim. The Veteran contends that he contracted Hepatitis C while in service when he underwent immunizations. At the December 2016 hearing, he testified that he did not recall if the needles were sterilized; however he believes that he may have acquired hepatitis C because he was informed by his counselor at his local veterans' center that he received shots in Korea and could have been injected with the disease while in service. He did not become aware he had Hepatitis C until the 1980's while attempting to give blood at work. He followed up with a blood test at the Lancaster, California VA Clinic, who confirmed his diagnosis. He has no known risk factors for Hepatitis C. He has never used intravenous drugs, intranasal cocaine, engaged in high-risk sexual activities, or underwent hemodialysis. He does not have tattoos or piercings. He did not share toothbrushes or razor blades. He has never had acupuncture with non-sterile needles. He has never had a blood transfusion, been a health care worker or worked with or been exposed to blood in the medical field. He never received at exit examination and he has been unable to obtain a medical opinion or a medical examination to assess whether or not his Hepatitis C could be related to the vaccinations he received in service. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. Medically competent evidence is not required in every case to indicate that the claimant's disability may be associated with the veteran's service. Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010). A review of the record potentially corroborates the Veteran's lay statements. Medical records reveal that the Veteran sought treatment on two separate occasions, in April 2003 and April 2010, reporting a history of hepatitis C after discharge from the military. (See March 2017 CAPRI pg. 11, 13, 79, 81; see also Legacy documents - June 2013 CAPRI pg. 2 and January 2014 CAPRI pg. 29-30). During the April 2003 visit, a negative screen returned for the condition. (See March 2017 CAPRI 79, 81). However, the April 2010 visit noted that a hepatitis panel and an AFP test would be ordered. Subsequent treatment notes list hepatitis C on the Veteran's "problem list." (See CAPRI pg. 1). It is unclear if the diagnosis reflected in the March 2017 treatment notes is by history or if a hepatitis panel was in fact completed. Nevertheless, the Veteran's lay statement that he received immunizations establishes the potential of an in-service injury, which may be associated with the Veteran's service. Yet, there is insufficient competent medical on file to adjudicate the claim. As such, the Board finds that a VA examination and opinion are necessary to adjudicate the claim. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination with the appropriate examiner for the purposes of obtaining an opinion as to whether he has hepatitis C and its likely etiology. The claims file, including a copy of this remand, should be made available to the examiner, who must review it in conjunction with the examination and should note that review in the report. The examiner should take a complete history from the Veteran. All indicated tests and studies should be indicated. The examiner should specifically opine as to: a. Does the Veteran have hepatitis C? Why do you say so? b. For each diagnosed condition, is it at least as likely as not (50 percent probability) related to his active service? Although the examiner must review the entire claim file, his/her attention is directed to the following evidence: i. The Veteran had active service from February 1963 to February 1966. ii. March 2017 CAPRI records that detail two visits in April 2003 and April 2010 of the Veteran seeking treatment for hepatitis C. During the April 2003 visit, a negative screen returned for the condition. However, during the April 2010 visit, the physician noted that a hepatitis panel should be scheduled and the initial page that lists hepatitis C on his problem list. The term "as likely as not" means at least 50 percent probability. It does not, however, mean merely within the realm of medical possibility, rather, 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 causation as it is to find against it. The examiner is asked to provide a complete explanation for all opinions rendered, citing to the medical record when necessary to support the conclusion reached. If the examiner cannot provide an opinion without resorting to speculation, he/she must state why this is the case. 2. Then, re-adjudicate the issue on appeal. If the benefits are not granted, furnish the Veteran and his representative a SSOC, and afford them an opportunity to respond. Then, return the case to the Board. 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 is 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 (2017). _________________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2017), 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).