Citation Nr: 18160301 Decision Date: 12/27/18 Archive Date: 12/26/18 DOCKET NO. 09-50 589 DATE: December 27, 2018 REMANDED Entitlement to service connection for hepatitis C is remanded. REASONS FOR REMAND The Veteran had active service in the United States Navy from April 1946 to August 1946 and from January 1952 to December 1952. He then served in the United States Army from December 1952 to September 1971. The Veteran died in March 2013. The appellant is his surviving spouse and has been substituted for the Veteran as the claimant. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in May 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Jurisdiction presently resides with the RO in Roanoke, Virginia. In July 2016, the appellant testified during a Board hearing before the undersigned. A transcript is of record. The case was remanded in September 2016 and again in February 2018 for additional development. However, the required compliance with the Board’s remand instructions has not been achieved. As such, this issue is being remanded again. As noted in the February 2018 Board decision, the appellant has been designated as a proper substitute after the Veteran died in March 2013. In addition, she is being represented by court appointed guardian/conservator, Kenneth E. Labowitz, under the authority of 38 C.F.R. § 14.630. The appellant asserts that the Veteran was diagnosed with hepatitis C which had its onset during service or is otherwise related to service. Prior to his death, the Veteran identified at least one medically recognized risk factor for contracting hepatitis C in service–direct skin exposure to blood from shared razors. In addition, service treatment records show a history of high-risk sexual activity–treatment for sexually transmitted disease (STD), another medically recognized risk factor for hepatitis C. The Veteran also asserted air gun inoculations given in service as a risk of exposure to the infection. Unfortunately, the development requested in the Board’s previous Remands in September 2016 and February 2018 has not been completely performed. Stegall v. West, 11 Vet. App. 268, 271 (1998); Dyment v. West, 13 Vet. App. 141 (1999). In the most recent Remand the AOJ was instructed to obtain a medical opinion, preferably by an examiner who had not reviewed the file in connection with the current appeal. The examiner was asked to determine the likelihood that the Veteran’s hepatitis C was contracted in service based upon any potential exposure to all documented and reported risk factors (air gun inoculations, shared razors, STD). The examiner was asked to discuss these risk factors and rank them relative to the probability that hepatitis C infection was etiologically related to each risk factor. The examiner was also asked to consider the VA guidance regarding the biological plausibility of transmitting hepatitis C with air gun injectors despite the lack of scientific evidence and explain the reasons and bases for the opinion. See February 2018 Board Remand. In August 2018, the same VA examiner who proffered a previous March 2017 opinion, which the Board found inadequate, failed to answer any of the questions posed in the prior Remand. As this was a primary reason for remanding the appeal, the Board cannot now rely on a negative VA opinion that does not provide the requested information. Therefore, an addendum opinion is needed. The matter is REMANDED for the following action: Arrange for review of the electronic claims file by a different examiner than the one who provided the opinions in March 2017 and August 2018. After reviewing the file, the examiner must state whether it is at least as likely as not (50 percent or greater likelihood) that the Veteran contracted hepatitis C in service based upon any potential exposure to risk factors shown in the record. The examiner must consider the hepatitis C diagnosis documented in the May 1998 lab reports from Dewitt Army Community Hospital. He/She must offer an opinion even if hepatitis C is considered to have resolved prior to the Veteran’s death (as the requirement for a current disability for VA purposes is met when the Veteran has a diagnosis such that he based his claim on the same, or had it during the pendency of the claim). In providing this opinion, the examiner must: 1) explain which of the reported hepatitis C risk factors (shared razors, STDs, air gun inoculations) is the most likely cause of the Veteran’s hepatitis C; 2) discuss the Veteran’s assertion that he contracted hepatitis C during service due to a contaminated air gun used for inoculations; and 3) discuss the VA guidance noting that despite the lack of any scientific evidence to document transmission of hepatitis C with air gun injectors, it is biologically plausible. If hepatitis C cannot be regarded as having had its onset during active service, the examiner should specifically indicate so and provide an appropriate explanation as to how he/she reached their conclusion, citing to supporting factual data/medical literature, where needed. THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.R. Bryant