Citation Nr: 18130186 Decision Date: 08/29/18 Archive Date: 08/28/18 DOCKET NO. 13-04 011 DATE: August 29, 2018 REMANDED Entitlement to service connection for hepatitis C is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1971 to July 1974. In November 2014, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. Unfortunately, due to a malfunction in the audio equipment used to record the hearing, a transcript of the hearing could not be compiled. In December 2014, the Board mailed a letter to the Veteran explaining the problem and notifying him that he had the right to a new hearing. The Veteran’s initial response to the letter indicated that he wanted to schedule another hearing, again via videoconference. But in September 2015, the Veteran withdrew his hearing request. Under these circumstances, this appeal can proceed without a hearing transcript. See 38 C.F.R. § 20.702(e). Entitlement to service connection for hepatitis C is remanded. The Veteran’s post-service VA medical records reflect a diagnosis of hepatitis C during the pendency of this claim for service-connected compensation, thus satisfying the “current disability” requirement of the claim. See McClain v. v. Nicholson, 21 Vet. App. 319, 321 (2007). There was no diagnosis of the disease in service, but the Veteran has argued that the condition is linked to service in at least three possible ways: (1) he may have contracted hepatitis C when engaging in unprotected sex in service; (2) he shared razors with his brother-in-law, who had hepatitis C; and (3) an infected needle was used to perform inoculations at the time of his entry into service. Although the Board regrets the need for further delay, there are at least three reasons why another remand is necessary. First, the information in the record identifies potentially relevant private treatment records which have not yet been associated with the claims file. VA treatment records, dated February 2016, specifically authorize private sector treatment for the Veteran’s hepatitis C with Centracare Digestive Center in St. Cloud, Minnesota and identify a specific nurse practitioner apparently employed by that facility as the person coordinating the Veteran’s treatment for hepatitis. Although there is a “NON-VA consult note ” dated December 2015, indicating that lab results from Centracare had been scanned, the VA treatment notes continue to refer to treatment at Centracare in July 2016. Moreover, there are no treatment notes in the VA records which identify the Centracare nurse practitioner as the author. Because records from Centracare are potentially relevant and apparently missing, the Board will remand this appeal to obtain copies of those records. See 38 C.F.R. § 3.159(c)(1). In September 2016, the Board remanded this appeal to the Agency of Original Jurisdiction (AOJ) for further development. To help assess the validity of the suggestion that the Veteran may have contracted hepatitis C from his brother-in-law, the AOJ was instructed to “contact the Veteran and his representative and inform them of the proper steps the Veteran should follow to obtain authorization from any interested parties to access his brother-in-law’s relevant records.” On remand, the AOJ mailed a letter to the Veteran, dated October 2017, together with blank copies of authorization forms for the disclosure of records. The letter suggests that the Veteran “provide any information that you may have so that you can obtain access to your brother-in-laws [sic] relevant records.” But, contrary to the Board’s remand orders, the letter did not “inform [the Veteran and his representative] of the proper steps the Veteran should follow to obtain authorization from any interested parties to access his brother-in-law’s relevant records.” Indeed, the letter did not even suggest to the Veteran that obtaining records of his brother-in-law’s medical treatment would require authorization from someone other than the Veteran. When the Board remands an appeal, the claimant obtains a right to compliance with the remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Because the AOJ did not provide the specific notice to the Veteran ordered by the earlier remand, the Board must remand this appeal again. Also pursuant to the Board’s remand orders, the AOJ obtained a medical opinion from a VA physician in December 2016 on the likely causes of the Veteran’s hepatitis C. In the examiner’s opinion it was less likely than not that the Veteran’s post-service hepatitis C was related to any in-service disease, injury or event. To explain the reasons for her conclusion, the examiner provided the following rationale: “Although the CDC does not recommend sharing a razor with a person known to have hepatitis C, the risk is low for ‘sharing personal care items that may have come in contact with another person's blood, such as razors or toothbrushes.’ Also the CDC finds that of patient’s [sic] known to have Hepatitis C only 17% have had multiple sexual partners. . . . There is no evidence for the patient's sharing of needles, syringes or other equipment to inject drugs, needlestick injuries in a health care setting or was born to a mother who has Hepatitis C.” “An adequate medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.” Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (quoting Nieves-Rodrigeuz v. Peake, 22 Vet. App. 295 301 (2008)). Unfortunately, the December 2016 examiner did not provide sufficient explanation for her opinion for the Board to make an informed decision on the Veteran’s claim. The examiner indicates that the sharing of a razor presents a “low risk” but she did identify a more likely reason the Veteran developed hepatitis C. Nor did she address a VA primary care note, dated May 2016, which suggests that the razor theory describes a plausible way of transmitting the disease: “Historically, he wanted to ask the question whether in fact it is possible to get hepatitis C with a dirty razor. I explained that blood-borne pathogens certainly can be transmitted by blood products. If in fact he used a bloody razor from someone with known hepatitis C and had open wounds himself, this certainly could explain transmission.” It is also unclear why the statistic about the number of hepatitis C patients with multiple sexual partners (17 percent) would tend to exclude the possibility, suggested by the Veteran, that he contracted his case of hepatitis C from engaging in unprotected sex during active duty. Service treatment records, dated February 1972 and noting possible “V.D.” and treatment with antibiotics, are consistent with the Veteran’s statements. For these reasons, the Board will remand this appeal to obtain potentially relevant records and to obtain an appropriate addendum opinion. The matter is REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 authorizing the release of copies of all records of the Veteran’s treatment for hepatitis C from Centracare Digestive Center in St. Cloud, Minnesota. Efforts to obtain the missing records should continue until copies of the records are obtained or until it is clear that further efforts to locate them would be futile. Copies of all requests for records and copies of all responses to those requests should be associated with the electronic claims file. The AOJ must also INFORM THE VETERAN AND HIS REPRESENTATIVE OF THE PROPER STEPS THEY SHOULD FOLLOW TO OBTAIN AUTHORIZATION FROM ANY INTERESTED PARTIES TO OBTAIN ACCESS TO HIS BROTHER-IN-LAW’S RELEVANT RECORDS. 2. After the records development is complete, obtain an addendum opinion from a qualified person concerning the nature and etiology of the Veteran’s hepatitis C. The entire claims file, including any new records obtained as a result of the development described above, should be provided to the examiner. After reviewing the claims file, the examiner should provide an opinion responding to the following question: Is it at least as likely as not (i.e. a 50 percent probability or greater) that the Veteran’s post-service hepatitis C had its initial onset in service or is otherwise related to any in-service disease, injury, or event – including the Veteran’s sharing of razors with his brother-in-law, who was later diagnosed with hepatitis C, inoculation using contaminated needles at the time of the Veteran’s entry into active duty, and unprotected sex during the Veteran’s service? The examiner must provide a thorough explanation of the medical reasons for his or her opinion. If the examiner disagrees with the May 2016 note from the Veteran’s primary care physician (“Historically, he wanted to ask the question whether in fact it is possible to get hepatitis C with a dirty razor. I explained that blood-borne pathogens certainly can be transmitted by blood products. If in fact he used a bloody razor from someone with known hepatitis C and had open wounds himself, this certainly could explain transmission.”) he or she should explain why. If the examiner indicates that it is unlikely that unprotected sex in service caused the Veteran to develop hepatitis C, he or she should discuss the reference to “V.D.” and treatment with antibiotics in service treatment records dated February 1972. If the examiner does not consider either of these theories likely causes of the Veteran’s hepatitis C, the examiner should explain what cause or causes he or she considers to be more likely explanations this specific Veteran developed this disease. 3. The AOJ must ensure that the requested medical opinion is in compliance with the directives of this remand. If any report is deficient in any manner, the AOJ must implement corrective procedures at once. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs