Citation Nr: 18139857 Decision Date: 10/01/18 Archive Date: 10/01/18 DOCKET NO. 10-00 336 DATE: October 1, 2018 REMANDED The claim of entitlement to service connection for hepatitis is remanded. The claim of entitlement to an increased initial (compensable) disability rating for bilateral hearing loss prior to March 9, 2012, and in excess of 10 percent on and after that date is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1970 to December 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from April and December 2008 rating decisions by a Department of Veterans Affairs (VA) Regional Office. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in September 2011. Thereafter, the Board remanded the claims in December 2011 and August 2017. 1. The claim of entitlement to service connection for hepatitis is remanded. Regrettably, remand is required for a clarifying opinion. Two VA opinions have been rendered to address the Veteran’s claim. A March 2008 VA examination noted the Veteran’s history of hepatitis in 1971 that was noted to be related to dirty eating conditions in the field in Vietnam. Post-service, the Veteran had never had any history of cocaine snorting, IV drug use, tattoos, or blood transfusions. The Veteran was only jaundiced once in 1971 while serving in Vietnam. The examiner’s findings included stable weight, social drinker, normal abdominal examination, normal liver size on palpation, no sign of ascites, no abdominal veins or sign of portal hypertension, splenomegaly, abdominal pain, or jaundice. The examiner further noted that liver function tests in March 2008 were normal, and a urinalysis and CBC were normal. A hepatitis panel conducted for the examination was normal. The Veteran was hepatitis B core antibody and hepatitis Be antigen positive. However, he was negative for hepatitis C antibody, hepatitis B surface antigen, and hepatitis Be antigen. The examiner diagnosed the Veteran with a past infection with hepatitis B virus, but the examiner noted that the Veteran was not infectious. The examiner found that the Veteran definitely had a history of having hepatitis in Vietnam. From lab work, the examiner noted that it was the hepatitis type B virus. The Veteran was not considered infective, nor was he infective at this time. The lab work showed that the Veteran had immunity to hepatitis type B, and he had no residuals from that hepatitis. The examiner concluded, noting that the Veteran used to have hepatitis, but he does not have hepatitis now nor any liver residuals from the hepatitis he had in the military. As noted by the Board in December 2011, however, a January 2011 VA treatment note contains a finding that the Veteran currently has hepatitis C, which conflicts with the March 2008 VA examination. Pursuant to the Board’s December 2011 remand, the Veteran presented for an examination in March 2012. The examination confirmed the same history of the Veteran’s diagnosis of Hepatitis B during service. However, the examiner referred to laboratory testing conducted in March 2008 and February 2012 showing that the Veteran had a past history of Hepatitis type B but now showing a current immunity to that infection by virtue of having had it previously. The Veteran was noted to not be infections, either. The examination report indicated that the Veteran did not have hepatitis C. Since the March 2012 VA examination, however, VA treatment records from September 2016 and March 2017, for example, continue to show a diagnosis of asymptomatic hepatitis C. These later findings are in direct conflict with the VA examination findings from the later VA examination conducted in March 2012, and the Board is unable to adjudicate this appeal absent a clarifying opinion. As such, remand is warranted. 2. The claim of entitlement to an increased initial (compensable) disability rating for bilateral hearing loss prior to March 9, 2012, and in excess of 10 percent on and after that date is remanded. In April 2018, the Veteran was afforded a VA audiology examination in order to ascertain the present severity of his bilateral hearing loss. However, the Veteran has not been furnished a Supplemental Statement of the Case (SSOC) that addresses the new VA examination. See 38 C.F.R. 19.31(b) (1). While 38 U.S.C. 7105(e) provides an automatic waiver of initial AOJ review if a veteran submits evidence to the AOJ or the Board with, or after submission of, a Substantive Appeal, VA does not currently interpret section 7105(e) as extending to evidence that was not submitted by the Veteran, such as VA-generated evidence including VA treatment records and examination reports. 38 U.S.C. 7105(e) (2012). As the April 2018 VA examination is not duplicative of evidence previously received and is highly relevant to the claim on appeal, the case must be remanded back to the AOJ for review and issuance of a SSOC. The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. After any additional records are associated with the claims file, obtain an addendum opinion regarding the etiology of any hepatitis from a VA examiner. The entire claims file must be made available to and pertinent documents therein reviewed by the examiner. If an examination is deemed necessary, it should be obtained. An explanation for all opinions expressed must be provided. The examiner must provide a clarifying opinion as to whether the Veteran currently has hepatitis. In doing so, the examiner is asked to reconcile the VA treatment records from January 2011, September 2016, and March 2017, showing a diagnosis of asymptomatic hepatitis C, with the VA examinations and opinions rendered in March 2008 and March 2012. If hepatitis is diagnosed, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the condition had onset in, or is otherwise related to, active service, to include the Veteran’s diagnosis of hepatitis B in July 1971. 3. The Veteran’s claims should be re-adjudicated based on the entirety of the evidence, including evidence submitted since the issuance of the February 2018 SSOC, to include the April 2018 VA audiology examination. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. BARBARA B. COPELAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Steve Ginski, Associate Counsel