Citation Nr: 20006335 Decision Date: 01/28/20 Archive Date: 01/24/20 DOCKET NO. 13-31 450A DATE: January 28, 2020 REMANDED Entitlement to service connection hepatitis C is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1969 to June 1971. This matter comes to the Board of Veterans’ Appeals (Board) from a decision of the Agency of Original Jurisdiction (AOJ), issued in February 2012. In its decision, the AOJ granted service connection for tinnitus and for a bilateral hearing loss disability, but denied service connection for hepatitis C. The Veteran filed a timely notice of disagreement, in which he appealed only the denial of compensation for hepatitis C. On May 23, 2017, the Veteran and his wife testified before the undersigned at a videoconference hearing. A transcript of that hearing is of record. The Veteran testified about his hepatitis C and also about his appeal of a separate decision, issued in September 2015, which denied requests for increased disability ratings for his service-connected hearing loss and tinnitus. The record reflects that, in April 2017, the AOJ issued a statement of the case (SOC), which continued to deny increased ratings for hearing loss and tinnitus. The Board will not, however, consider the hearing loss and tinnitus issues as part of this appeal because the Veteran did not file a substantive appeal (VA Form 9) in response to the April 2017 SOC. Although the Board regrets the need for further delay, the hepatitis C appeal is remanded to the AOJ for the reasons below. Entitlement to service connection hepatitis C is remanded. The Board remanded this case for further development in December 2017. In its instructions, the Board ordered the AOJ to do the following: (1) obtain complete copies of the Veteran’s service treatment records, including an apparently missing separation examination report; (2) obtain copies of missing treatment records from a physician in private practice identified by the Veteran and his wife at the videoconference hearing; (3) consult relevant unit records to verify the Veteran’s claim that, during his service in Germany, there was an outbreak of hepatitis C in his unit; and (4) obtain a medical opinion on the nature and etiology of the Veteran’s hepatitis C. 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). Since November 2017, it appears that the AOJ has made reasonable attempts to comply with instruction (3) noted above. As noted in a memorandum, dated May 2019, the AOJ made a request to the United States Army and Joint Services Research Center (JSRRC) for an inquiry into relevant unit records in February of 2019. In March 2019, the JSRRC responded by indicating that, despite extensive research, the relevant unit records could not be located. The AOJ also made several attempts to verify the hepatitis C outbreak with the National Archives and Records Administration (NARA). In April 2019, NARA made the following report to the AOJ: “We have some annual histories of medical units and facilities from the 1970s among the Records of the Army Staff (Record Group 319). However, specifically for the 5th Battalion, 81[st] Artillery we were able to locate an annual history from 1972, but not the preceding years. A search of possible command or other higher echelon records from Europe similarly was unsuccessful. We did not see records specifically on Wiesbach. We regret that we can not located [sic] records of the unit for the relevant years.” It is disappointing that neither JSRRC nor NARA could confirm or disconfirm the Veteran’s statements about an outbreak of hepatitis C during his service in Germany. But it is unclear what else the AOJ could do to comply with the Board’s order to search unit records. Unfortunately, the same cannot be said of the remaining December 2017 remand orders. Pursuant to the first of the remand orders, the AOJ made at least two requests for records using the Personnel Information Exchange System (PIES). In September 2017, the AOJ requested the missing separation/retirement medical examination report. The response to this request, dated January 2018, indicates that all available records were shipped to a scanning vendor so that the copies could be added to the Veteran’s VA claims file. Unfortunately, none of the newly scanned records include the missing separation examination report. They mostly consist of military personnel records and records of proceedings before the Board of Correction of Military Records. The AOJ made a new request for complete service medical and dental records in December 2017. A response, dated January 2018, indicates that these records were ordered. In February 2019, an employee of the AOJ requested an update on the status of a “PIES Request for claim pending over a year . . .” According to a subsequent note, “all records were sent under PIES Response to the M03 request.” But the only service medical records subsequently added to the file consist of copies of the Veteran’s dental service treatment record folder which, except for a “search reply card”, appeared to be empty. Under these circumstances, the Board cannot conclude that the AOJ has made all reasonable efforts to comply with the Board’s remand instructions. The AOJ should make new efforts to obtain the missing separation examination and those efforts should continue until the AOJ obtains the requested records or until the AOJ receives a response clearly indicating that the missing records do not exist or that further efforts to obtain them would be futile. With respect to instruction (2), the Veteran authorized the AOJ to obtain copies of his treatment records from Dr. H., the physician he identified at the hearing. The AOJ requested these records by letter and by telephone. In November 2019, the physician’s office responded with an offer to supply copies of the requested records for a fee of $52.75. The AOJ declined to pursue the matter further on the grounds that VA was not authorized to pay for the records. But it is unclear whether the AOJ ever notified the Veteran of the results of this request or offered him the opportunity to pay for the records himself. See 38 C.F.R. § 3.159(e). On remand, the AOJ should write to the Veteran and give him the opportunity to do so. Finally, the AOJ obtained a medical report from a VA physician in September 2019. According to the examiner, it was less likely than not that the Veteran’s post-service hepatitis C had its initial onset in service or was otherwise related to any in-service disease, injury, or event. To explain these opinions, the examiner chiefly relied on the absence of any diagnosis or treatment for hepatitis in the available service treatment records. This kind of rationale is inconsistent with Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). From reviewing the record, it appears that the way the AOJ phrased its questions to the examiner may have contributed to this error. Specifically, in its request for a medical opinion, the AOJ asked the examiner to “state whether THE VETERAN’S MEDICAL RECORDS SUPPORT THAT any currently diagnosed condition(s) related to the Veteran’s claimed hepatitis C, is/are at least as likely as not (50 percent or greater probability) incurred in or caused by hepatitis C during service.” (emphasis added). By asking the examiner to limit his opinion to conclusions with support in the medical records, the AOJ quite likely encouraged the examiner to ignore or discount the probative value of the Veteran’s lay statements. On remand, the AOJ should obtain a new opinion after sharing any newly obtained records with the post-remand examiner. The examiner should be advised that the Veteran is competent to describe events he personally experienced. The matters are REMANDED for the following action: 1. The AOJ should make reasonable efforts to obtain copies of the Veteran’s complete service treatment records, TO INCLUDE ANY RECORDS RELATED TO BLOOD WORK DURING SERVICE AND DURING A SEPARATION EXAMINATION. Efforts to obtain complete service treatment records, including the missing separation examination report, should continue until they succeed or until it is reasonably clear that the missing records do not exist or that further attempts to obtain them would be futile. 2. The AOJ should notify the Veteran of the results of the response to the AOJ’s records request to Dr. H. in November 2019 – i.e., that Dr. H.’s office had 181 pages of records concerning the Veteran but was requesting a fee for providing copies of the records. The Veteran should be given an opportunity to obtain these records himself. 3. Send the claims file, including any new information obtained pursuant to the development required by parts one and two of these instructions, to a qualified person and obtain a medical opinion on the nature and etiology of the Veteran’s claimed hepatitis C. If an in-person examination is needed before the examiner can provide the requested opinion, then an in-person examination should be arranged. After reviewing the relevant records and, if necessary, personally examining the Veteran, the examiner must provide a written opinion as to whether it is at least as likely as not (50 percent or more probability) that the Veteran’s current hepatitis C or, if the examiner believes the Veteran no longer experiences hepatitis C symptoms, whether any hepatitis C symptoms which existed during the relevant appeal period (January 27, 2011 to the present) had their initial onset in service or were the result of any disease, injury or event in service, including the use of a “dirty air gun” to administer vaccinations to a group of soldiers. THE EXAMINER IS ADVISED THAT THE ABSENCE OF CONTEMPORANEOUS MEDICAL RECORDS SHOWING A DIAGNOSIS OF HEPATITIS C IN SERVICE, STANDING ALONE, IS NOT SUFFICIENT REASON FOR REJECTING THE POSSIBILITY OF A RELATIONSHIP BETWEEN THE CLAIMED CONDITION AND MILITARY SERVICE. According to the Veteran, there was an outbreak of hepatitis C in his Army unit during his deployment to Germany sometime between December 1970 and June 1971. The examiner is advised that the AOJ has searched for unit records in order to confirm or disconfirm this statement and, according to JSRRC and NARA, there are no surviving records for the Veteran’s unit which describe events during the relevant time. In other words, while the records do not confirm the Veteran’s statements, they do not contradict his statements either. The examiner is further advised that the Veteran is competent to provide information about events he has personally experienced. 4. After the requested development has been completed, the AOJ should review the claims file to ensure compliance with the directives of this remand. If any medical 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 M. Nye, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.