Citation Nr: 1807536 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-19 958 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD Anthony Flamini, Counsel INTRODUCTION The Veteran served on active duty from May 1966 to May 1968 (discharged under honorable conditions), and military service from October 1970 to September 1972 (discharged under conditions other than honorable conditions). This appeal comes before the Board of Veterans' Appeals (Board) from a September 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in May 2017. A transcript of that hearing has been associated with the claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran seeks entitlement to service connection for hepatitis C. Unfortunately, additional development must be conducted before this issue can be adjudicated on the merits. A review of the Veteran's service records reveals that he served as a light weapons infantryman in the Republic of Vietnam, where he saw combat in several counteroffensives. He sustained a bullet wound to his left thigh and was subsequently awarded a Purple Heart medal. The Veteran is currently service-connected for a left thigh muscle injury to Group XIV as a result of this bullet wound. At his May 2017 Travel Board hearing, the Veteran testified that, in the firefight where he sustained his bullet wound, he was in the vicinity of injured servicemen who had also sustained wounds and was thereby exposed to bodily fluids and blood. The Veteran separated from active duty service in May 1968. However, he reenlisted in October 1970, but was later discharged under conditions other than honorable in September 1972. The personnel records which documented the Veteran's approval for discharge under the provisions of Chapter 10, Army Regulation 635-200, indicated that he had been absent without official leave (AWOL) on several occasions, failed to obey lawful orders from his superiors, and was undergoing rehabilitative treatment as a drug dependent. The Board notes that a discharge under other than honorable conditions is a bar to VA benefits. See 38 C.F.R. § 3.12(c)(6) (2017). As such, the Board will only consider the Veteran's period of active duty service from May 1966 to May 1968 as it relates to his claim for VA benefits. The Veteran underwent a VA examination in June 2012, at which time he was diagnosed as having hepatitis C. However, the examiner emphasized that the service treatment records from the Veteran's first period of active duty service from May 1966 to May 1968 revealed only generalized symptoms of many conditions, with nothing particular to the liver and no definitive evidence of hepatitis. In addition, the examiner indicated that, "there was no documented evidence suggestive of risk factors during first period of service while patient was snorting heroin in second period of service." As such, the VA examiner opined that the Veteran's current hepatitis C "at least as likely as not is related to heroin use in second period of service." Significantly, with respect to the Veteran's risk factors for hepatitis C, the VA examiner only listed, "Intravenous drug use or intranasal cocaine use." Curiously, the VA examiner did not list, "Accidental exposure to blood by health care workers (to include combat medic or corpsman)," as a possible risk factor. The Board finds that the June 2012 VA examination report is inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (noting that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); see also See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (noting that if the examiner relies on an inaccurate fact, then the opinion has little or no probative value). Specifically, the June 2012 VA examiner indicated that intranasal drug use during the Veteran's second period of active duty service was his only risk factor for hepatitis, and did not address the possibility that the Veteran had accidental exposure to blood when he sustained his bullet wound during his first period of active duty service. This incident is supported by the Veteran's service records, the award of a Purple Heart Medal, and by the Veteran's own testimony. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination must consider lay evidence of in-service incurrence or continuity of symptomatology since service). As such, on remand, the Veteran should be provided with another VA examination that considers this evidence in determining the probable etiology of his diagnosed hepatitis C. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with a VA examination (preferably a hepatologist) to ascertain the etiology of his currently diagnosed hepatitis C. The claims file must be made available to the examiner, and the examiner must specify in the examination report that the claims file has been reviewed. Thereafter, based upon review of the entire evidence of record, to include the Veteran's statements, the examiner must provide an opinion as to whether it is at least as likely as not that the Veteran's current hepatitis C is casually related to his military service. The physician must list and discuss all of the Veteran's documented in-service risk factors and post-service risk factors for hepatitis C. The examiner must rank the documented risk factors relative to the probability that the currently confirmed hepatitis C is etiologically related to the risk factor. In particular, the examiner must acknowledge and address the Veteran's assertion of in-service exposure to blood from other injured servicemen in combat, as well as the documented in-service bullet wound to his left thigh muscle. A complete rationale must be provided for the opinion proffered. If the examiner cannot provide the requested opinion without resorting to speculation, then it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular physician. 2. Once the above action has been completed, and any other development as may be indicated by any response received as a consequence of the actions taken above, readjudicate the Veteran's claim of entitlement to service connection for hepatitis C. If the benefit remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for further appellate review. 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 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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).