Citation Nr: 18143339 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 13-33 095 DATE: October 18, 2018 ORDER Entitlement to service connection for hepatitis C with cirrhosis of the liver is remanded. REMAND The Veteran had active military service from January 1975 to June 1975. He also had service in the Marine Corps Reserves with periods of active duty training (ACDRUTRA) and inactive duty training (IDT). This matter originally came before the Board of Veterans’ Appeals (Board) on appeal from an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, which denied service connection for hepatitis C with cirrhosis. In November 2015 the appeal was remanded to the Regional Office (RO) for additional procedural and evidentiary development. The RO was directed to: obtain evidentiary material pertaining to the Veterans’ application for Social Security Administration (SSA) disability benefits; verify Veteran’s periods of ACDUTRA and IDT, specifically periods of reserve service in July 1979; if records were found, schedule the Veteran for a VA examination to determine the etiology of his hepatitis C with cirrhosis, and, if the appeal remained denied, issue a supplemental statement of the case (SSOC) and return the case to the Board. In August 2018, the Veteran’s representative submitted an appellate brief incorporating by reference all arguments of record previously presented on behalf of the Veteran, in addition to asserting that the VA examination was inadequate for rating purposes. The AOJ was directed to take all necessary steps to verify the Veteran’s periods of ACDUTRA and IDT. Specifically, periods of reserve service in July 1979 were to be obtained. The reserve retirement point sheets of record are not adequate for this purpose; the specific dates of service were required. Efforts to verify such service were to be documented in the claims file. The record reflects that the RO requested Defense Finance and Accounting Service search for pay records to obtain evidence of the Veteran having been paid for service between July 1979-August 1979. (6/23/2016 DFAS Payment Worksheet, p.1; 5/4/2017 DFAS Payment Worksheet, p.7). The RO also searched the Veterans Affairs/Department of Defense Identity Repository (VADIR) and Beneficiary Identification Records Locator Subsystem (BIRLS) for additional evidence of service. While these efforts failed to yield evidence of periods of service, these efforts substantially comply with the remand order. D’Aries v. Peake, 22 Vet. App. 97 (2008). The RO was conditionally directed to schedule the Veteran for a VA examination to determine the etiology of his hepatitis C with cirrhosis if the records demonstrated active service or IDT on July 19, 1979. Although the record does not contain additional records establishing active service on July 19, 1979, an examination was nonetheless ordered. The record reflects a medical opinion was obtained in the July 2017 examination. “SMR review revealed risk factors of multiple sexual partners and tattoo. I would have to speculate in order to comment on etiology of his hepatitis c with residuals.” The examiner’s opinion does not provide the clarification of the record ordered on remand. The opinion does not address the likelihood of causation or aggravation of hepatitis C with cirrhosis by active service or provide rationale for the opinion provided. If an opinion could not be made without resort to speculation, the examiner did not provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. The examiner did not discuss the relationship, if any, between hepatitis C and the tattoo noted in the July 1979 service treatment record. The examiner did not consider any vaccinations, to include air-gun inoculations, provided during service. The examiner did not discuss the conflicting private medical opinions of record. As the examination did not substantially comply with the remand order, remand is again necessary. Stegall v. West, 11 Vet. App. 268 (1998). The case is REMANDED for the following action: Return the file to the July 2017 examiner, or another comparably qualified examiner if he is unavailable, to provide an opinion as to whether it is at least as likely as not (a 50 percent probability or more) that the Veteran’s hepatitis C with cirrhosis was caused by active service to include any period(s) of confirmed ACDUTRA or IDT. The claims file, including both the November 2015 remand and this remand, must be reviewed by the examiner. The examiner must provide an opinion as to whether there is a relationship between the Veteran’s hepatitis C and the tattoo noted in the July 1979 service treatment record, and include a rationale for the conclusion reached. The examiner must provide an opinion as to whether there is a relationship between the Veteran’s hepatitis C and any vaccinations to include air-gun inoculations, provided during service, and the rationale for that opinion. Any other risk factors identified by the examiner should be noted and discussed as well. The examiner must provide a rationale for all opinions provided. If an opinion cannot be made without speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. The examiner should also discuss the private medical opinions of record, to include from Dr. S.S.K at the University of Arkansas in October 2015. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. A. Myers, Associate Counsel