Citation Nr: 20006771 Decision Date: 01/28/20 Archive Date: 01/27/20 DOCKET NO. 15-27 721 DATE: January 28, 2020 REMANDED Entitlement to service connection for hepatitis C is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1974 to October 1974 and from March 1976 to October 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an October 2011 rating decision of the St. Paul, Minnesota Regional Office (RO) of the Department of Veterans Affairs. This claim was previously before the Board in October 2017, at which time it was remanded for additional development. The October 2017 Board remand noted that the Veteran filed a timely notice of disagreement for the denial of compensation for right ankle disability under the provisions of 38 U.S.C. § 1151 (2012). The Veteran also indicated that he wished to include hepatitis C as an additional disability that arose out of the VA surgery he underwent in 2009. The Board instructed the RO to issue a statement of the case (SOC) but also notified the Veteran that it was necessary to file a timely Substantive Appeal, VA Form 9, to perfect his right to appeal this claim before the Board. The RO issued an SOC in December 2017, but the Veteran did not file a timely Substantive Appeal. Therefore, this claim is no longer before the Board. With respect to the raised issue of entitlement to compensation under 38 U.S.C. § 1151, in a January 2020 brief, the Veteran’s representative asserted that the issue was inextricably intertwined with the instant service connection claim. However, as the 38 U.S.C. § 1151 is not a subject for current appellate review, neither is the issue of whether this claim is inextricably intertwined with the claim for service connection foe hepatitis C. Hepatitis C The Veteran received a VA examination in April 2018 and the examiner found that the condition was less likely than not incurred in or caused by service. First, the examiner noted that there was no evidence to support the claim that the Veteran was a medic during service. Then, the examiner noted that there was no record found for non-A or non-B hepatitis during military service. Therefore, there was no evidence found for hepatitis C during military service. The Board notes that a medical opinion based solely on the absence of documentation in the record is inadequate and a medical opinion is inadequate if it does not take into account the Veteran’s reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Nicholson, 21 Vet. App. 23 (2007). Therefore, this claim must be remanded for a new examination. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination by an examiner other than the April 2018 VA examiner to determine the etiology of his current hepatitis C. The examiner must review the claims file and must note that review in the report. The examiner should consider the Veteran’s reports of his in-service inoculations and other in-service exposures. The examiner should provide the following information: Opine whether it is at least as likely as not (50 percent or greater probability) that the current hepatitis C disability is due to the Veteran’s service, to include air gun inoculations for basic training and other reported in-service exposure. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Daniels, Associate Attorney 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.