Citation Nr: 18140739 Decision Date: 10/05/18 Archive Date: 10/05/18 DOCKET NO. 15-21 883 DATE: October 5, 2018 REMANDED The claim of entitlement to service connection for hepatitis C is remanded. The claim of entitlement to service connection for a skin disability is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1966 to January 1976, to include service in the Republic of Vietnam from April 1967 to April 1968. This appeal to the Board of Veterans’ Appeals (Board) arose from a February 2013 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, inter alia, denied service connection for hepatitic C and jungle rot. In April 2013, the Veteran filed a notice of disagreement (NOD) with these denials. Thereafter, the Veteran’s claims file was transferred to the jurisdiction of the RO in Seattle, Washington. A statement of the case (SOC) was issued in April 2015, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) in June 2015. In May 2018, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing has been associated with the claims file. Regarding characterization of the claim for service connection for a skin disability, although the Veteran has claimed service connection for jungle rot and the RO has characterized the claim accordingly, as reflected above, the Board has now expanded the claim to include consideration of other skin diagnoses of record, consistent with Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board’s review of the claims file reveals that further agency of original jurisdiction (AOJ) action on the claims on appeal is warranted. VA is required to provide an examination or obtain a medical opinion in a claim for service connection when the record contains competent evidence that the claimant has a current disability or persistent or recurrent symptoms of disability, the record indicates that the disability or symptoms of disability may be associated with active service, and the record does not contain sufficient information to decide on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The threshold for determining whether the record “indicates” that there “may” be a nexus between a current disability and an in-service event, injury, or disease is a low one. See McLendon, 20 Vet. App. at 83. A veteran’s reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. See id. Regarding the hepatitis C claim, the Veteran contends that he has current hepatitis C related to service—specifically, from the air guns used for inoculations he received therein, and/or from being covered in a fellow serviceman’s blood during a rocket attack in Vietnam. In this case, VA treatment records show a diagnosis of chronic hepatitis C. See e.g., October 2015 and August 2014 VA Treatment Records. In addition, although inoculations and the reported rocket attack incident are not documented in the Veteran’s service records, during the May 2018 Board hearing, the Veteran testified that, during service, he received numerous shots from an air gun while waiting for deployment, and that during a rocket attack in Vietnam, a fellow serviceman was blown into him and that he was covered with his blood. Also, in a 1978 brief in support of his discharge review, the Veteran described being in a series of furious rocket attacks in Vietnam during service. Moreover, during the May 2018 Board hearing, the Veteran testified that he never used intravenous drugs. Regarding the skin disability claim, the Veteran also contends that he has a current skin disability that is related to service—specifically, from being in the jungle in Vietnam and not being able to change his socks and boots very frequently. In this case, August 2013, September 2013, and June 2014 VA treatment records show diagnoses and assessments of onychomycosis, tinea corporis, erythema annularecentrifigum, MF (less likely), psoriasiform dermatitis, and tinea pedis. In addition, the Veteran’s service personnel records show that he served in Vietnam, and during the May 2018 Board hearing, the Veteran testified that he was out in the jungle during his Vietnam service, and that he was not able to frequently change his socks and boots. Moreover, during the May 2018 Board hearing, the Veteran testified that he began having skin problems while serving in Vietnam, and that he was diagnosed with jungle rot while serving there. He also testified that he now experiences the same skin problems that he experienced during service. To date, no VA examination has been conducted or medical opinion otherwise obtained for either claimed disability. However, given all the above, to include the competent testimony of record, the Board finds that the threshold requirements discussed in McLendon are met, thus warranting VA examinations. Therefore, on remand, the AOJ should arrange for the Veteran to undergo VA hepatitis and skin examinations, each by an appropriate physician. The Veteran is hereby notified that failure to report to any scheduled examination(s), without good cause, may result in denial of his claim(s). See 38 C.F.R. § 3.655. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Prior to undertaking action responsive to the above, to ensure that all due process requirements are met, and that the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. As for VA records, the claims file reflects that the Veteran has been receiving treatment from the VA Medical Center (VAMC) in Seattle, Washington, and that records from that facility dated through November 2017 are associated with the file; however, more recent records may exist. Therefore, the AOJ should obtain from the Seattle VAMC all pertinent, outstanding records of evaluation and/or treatment of the Veteran since November 2017, following the current procedures prescribed in 38 C.F.R. § 3.159(c) regarding requests for records from Federal facilities. In addition, VA treatment records show that the Veteran received treatment for hepatitis C through PolyClinic in 2012 to 2013, and that he was receiving treatment for hepatitic C privately. However, no treatment records from PolyClinic or other private treatment provider regarding hepatitis C appear in the claims file. Therefore, on remand, the AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claims on appeal, explaining that he has a full one-year period to respond. See 38 U.S.C. § 5103(b)(1); but see 38 U.S.C. § 5103(b)(3) (clarifying that VA may decide a claim before the expiration of the one-year notice period). In its letter, the AOJ should specifically request that the Veteran provide, or provide appropriate authorization to obtain, any outstanding, pertinent private (non-VA) records, to particularly include treatment records from PolyClinic since 2012 and/or any other provider treating his hepatitis C. Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the claims on appeal. These matters are hereby REMANDED for the following action: 1. Obtain from the Seattle VAMC all outstanding records of evaluation and/or treatment of the Veteran, dated since November 2017. Follow the procedures of 38 C.F.R. § 3.159 regarding requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information concerning, and, if necessary, authorization to enable VA to obtain, any additional evidence pertinent to the claims on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private (non-VA) records, to particularly include treatment records from PolyClinic since 2012 and/or any other provider treating his hepatitis C. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claims within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo a VA hepatitis examination, by an appropriate physician. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated physician, and the examination report should reflect consideration of the Veteran’s documented medical history and lay assertions. All indicated tests and studies should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability), that the diagnosed hepatitis C had its onset in or is otherwise medically-related to service—to particularly include, the Veteran’s reports of receiving inoculations with air guns, and being covered in a fellow serviceman’s blood during a rocket attack in Vietnam. In addressing the above, the examiner must consider and discuss all pertinent medical and other objective evidence of record, as well as all lay assertions—to include, the Veteran’s assertions as to in-service events, and as to the nature, onset and continuity of symptoms. Notably, the absence of documented evidence of a specific diagnosis and/or associated symptoms in or shortly after service should not, alone, serve as the sole basis for a negative medical opinion. In this regard, the examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating the requested opinion. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 5. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA skin examination, by an appropriate physician. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated physician, and the examination report should reflect consideration of the Veteran’s documented medical history and lay assertions. All indicated tests and studies should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should first clearly identify all skin disability(ies) currently present or present at any point pertinent to the current claim (even if now asymptomatic or resolved). Then, for each such diagnosed skin disability, the examiner should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability), that the disability had its onset in or is otherwise medically-related to service—to particularly include, the Veteran’s reports of being in the jungle in Vietnam and not being able to change his socks and boots very frequently. In addressing the above, the examiner must consider and discuss all pertinent medical and other objective evidence of record, as well as all lay assertions—to include, the Veteran’s assertions as to in-service events, and as to the nature, onset and continuity of symptoms. Notably, the absence of documented evidence of a specific diagnosis and/or associated symptoms in or shortly after service should not, alone, serve as the sole basis for a negative medical opinion. In this regard, the examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating the requested opinion. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 6. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claims on appeal considering all pertinent evidence (to include all evidence added to the electronic claims file since the last adjudication) and legal authority. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Rothstein, Associate Counsel