Citation Nr: 18109441 Decision Date: 06/12/18 Archive Date: 06/08/18 DOCKET NO. 12-28 652 DATE: June 12, 2018 REMANDED Entitlement to service connection for hepatitis C is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1968 to September 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine. The claims file was subsequently transferred to the RO in Hartford, Connecticut. The Veteran seeks entitlement to service connection for hepatitis C. Unfortunately, the Board finds that an additional remand is required before this issue can be adjudicated on the merits. This issue was previously before the Board in October 2016. At that time, the Board found that the report of a February 2015 VA medical examination, in which the examiner copied information from the National Institute of Health website and then opined that it was "less likely as not" that the Veteran's hepatitis C was related to his military service, was inadequate and remanded the matter for an addendum opinion. Specifically, the Board’s October 2016 remand explicitly directed that, in providing an etiological opinion, the examiner was to provide an opinion based on the particular facts of this case and not solely based on National Institute of Health statistics regarding probability of incurring a hepatitis C infection via intravenous (IV) drug use versus shared personal items and exposure to blood. The examiner was also requested to address the significance, if any, of symptoms of hepatitis reportedly experienced in the 1970s and the “slow progression” of hepatitis C as alleged by the Veteran and his representative. Pursuant to the Board’s October 2016 Remand, two VA opinions were obtained in December 2016, both authored by the same VA physician’s assistant. The first opinion concluded that, “[i]t is more likely than not that [the Veteran] contracted hepatitis-C from intravenous drug abuse after he was discharged from the military.” In support of this conclusion, the VA physician’s assistant explained that, “[t]here is no documentation that [the Veteran] developed hepatitis while he was in the military, but he admits to using IV heroin for 6-12 months after he was discharge[d] from the military. He has recently completed new treatment for his hepatitis-C and his last Liver clinic note states that his final blood test shows that his hepatitis-C is now not detectable with normal AST and ALT liver tests.” After a December 2016 deferred rating decision determined that this initial opinion was also inadequate, the RO returned the file to the VA physician’s assistant to provide a second opinion. This second VA opinion concluded that, “[i]t is less likely than not that [the Veteran] contracted hepatitis-C from blood or fluid exposure while he was in the military.” In support of this conclusion, the VA physician assistant explained that, “[t]here is no documentation that [the Veteran] developed hepatitis while he was in the military, but he admits to using IV heroin for 6-12 months after he was discharge[d] from the military. He has recently completed new treatment for his hepatitis-C and his last Liver clinic note stated that his final blood test shows that his hepatitis-C is now not detectable with normal AST and ALT liver tests, which is considered a cure.” In addition, the VA physician’s assistant again copied and pasted statistics from the National Institute of Health website, which was one of the reasons the Board found the February 2015 VA examination report to be inadequate. Furthermore, the Board emphasizes that neither of the December 2016 VA addendum opinions addressed or acknowledged the medical treatise evidence submitted by the Veteran in October 2012 and January 2013. Additionally, the opinions offered by the physician’s assistant in December 2016 again appear to be based solely on statistics regarding probability of incurring a hepatitis C infection via IV drug use versus shared personal items and exposure to blood, as neither opinion even acknowledged the Veteran’s reported exposure to blood from wounded soldiers, as well as sharing razors and tooth brushes with others, while he was in Vietnam. Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Additionally, once VA undertakes the effort to provide an examination or opinion when developing a claim, it must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Given the aforementioned deficiencies in the VA medical opinions authored in December 2016, the Board finds that this issue must again remanded to obtain an adequate opinion addressing the likely etiology of the Veteran’s diagnosed hepatitis C. The Board also emphasizes that although the December 2016 VA opinions indicated that recent blood tests revealed that the Veteran’s hepatitis C was now undetectable (a fact which was relied on in the January 2017 Supplemental Statement of the Case to conclude that the Veteran no longer had a current disability for VA compensation purposes), the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (recognizing disabilities that occur immediately prior to filing of a claim). Finally, the Board’s October 2016 Remand directed that the RO contact the Veteran and provide him with a VA Form 21-4142 (Authorization and Consent to Release Information to VA) and a VA Form 21-4142a (General Release for Medical Provider Information to VA) to identify all relevant treatment from VA and private health care providers, and then to document all attempts to obtain these records. Pursuant to the Board’s Remand instructions, the Veteran was provided with these forms in October 2016 and, in November 2016, he returned the forms authorizing VA to obtain medical treatment records from Saint Francis Hospital & Medical Center in Hartford, Connecticut, dated from 1971 to 1972. However, there is no indication that the RO ever attempted to obtain these records, and nothing on the Supplemental Statement of the Case issued in January 2017 documented any attempts to obtain these records. As the 12-month period following the Veteran’s November 2016 authorization for VA to obtain private records has expired, the RO must again provide the Veteran with a VA Form 21-4142 (Authorization and Consent to Release Information to VA) and a VA Form 21-4142a (General Release for Medical Provider Information to VA) to identify all relevant treatment from VA and private health care providers. See Stegall, 11 Vet. App. at 271. The matter is REMANDED for the following action: 1. Contact the Veteran and provide him with a VA Form 21-4142 (Authorization and Consent to Release Information to VA) and a VA Form 21-4142a (General Release for Medical Provider Information to VA) to identify all relevant treatment from VA and private health care providers. The letter accompanying the VA Form 21-4142 should inform the Veteran that VA is particularly interested in the records from Saint Francis Hospital & Medical Center in Hartford, Connecticut, which the Veteran had authorized VA to obtain previously. All attempts to obtain these records must be documented in the record. The Veteran must be notified of any inability to obtain the requested documents. Allow for an appropriate amount of time for response and complete any additional development resulting from the Veteran's response. 2. Following the above development and any additional development deemed necessary, request an addendum opinion to the December 2016 VA examination reports from a suitably qualified examiner (other than the physician’s assistant who authored the December 2016 opinions) concerning the nature and etiology of the Veteran's hepatitis C. The claims file must be made available to the examiner and the examiner must indicate that a review was completed. The examiner is asked to express an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hepatitis C is causally related to active service or otherwise had its onset in active service. The examiner is asked to provide an opinion based on the particular facts of this case and not solely based on statistics copied from the National Institute of Health website regarding probability of incurring a hepatitis C infection via IV drug use versus shared personal items and exposure to blood. In addition, the examiner must address the medical treatise evidence submitted by the Veteran in October 2012 and January 2013, as well as the significance, if any, of the hepatitis symptoms as reported by the Veteran in the 1970s and documented by the February 1975 VA examination report and the alleged slow progression of hepatitis C since service. A complete rationale must be provided for the opinion(s) reached. 3. Thereafter, review the medical reports to ensure responsiveness to, and compliance with, the directives of this remand. Implement corrective procedures as necessary in order to avoid additional remands by the Board. 4. After completing the above, and any further development deemed necessary in light of the expanded record, readjudicate the Veteran's claim. If the benefit sought on appeal is not granted in full, then the Veteran and his representative should be furnished with a Supplemental Statement of the Case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel