Citation Nr: 20076715 Decision Date: 12/02/20 Archive Date: 12/02/20 DOCKET NO. 09-42 326 DATE: December 2, 2020 REMANDED Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for hepatitis C for accrued benefits purposes is remanded. Entitlement to Dependency and Indemnity Compensation (DIC) based on service connection for the cause of death of a veteran is remanded. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Appellant is the surviving spouse of a deceased veteran who served on active duty from February 1972 to March 1992. He died in December 2007. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In February 2010, the Veteran presented testimony at a hearing before RO personnel. A transcript of the proceeding is of record. In December 2013, the Board granted reopening of service connection for hepatitis C for accrued benefits purposes and denied the claim on its merits. The Board also denied the claim for DIC based on a service-connected cause of death. The Appellant subsequently appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2014 memorandum decision, the Court vacated the Board’s decision in its entirety and remanded it back to the Board for additional development. As the Court did not affirm the Board’s decision to reopen the accrued benefits claim, the issue has been characterized as an application to reopen. The Board remanded this matter in April 2015 and January 2018 to obtain outstanding military treatment records pursuant to the Court’s memorandum decision. Newly obtained and relevant service treatment records have been associated with the Appellant’s claims file. As such, the service connection claim for hepatitis C will be reconsidered on the merits pursuant to 38 C.F.R. § 3.156 (c). However, for the reasons that follow, another remand is needed before the Board can adjudicate the claims on the merits. Stegall v. West, 11 Vet. App. 268 (1998). In October 2020, the Veteran’s representative submitted a motion to withdraw as the Appellant’s counsel. A Certification of Appeal (VA Form 8) dated May 2011 establishes that the claim was certified to the Board. See 38 C.F.R. § 19.35. In this regard, 38 C.F.R. § 20.6 (a)(2) (2019) (formerly 38 C.F.R. § 20.608 (b)(2) (2018)) governs motions to withdraw as representative after certification to the Board and provides that a representative may not withdraw representation without good cause shown on motion, accompanied by a “signed statement certifying that a copy of the motion was sent by first-class mail, postage prepaid, to the appellant, setting forth the address to which a copy was mailed.” See 38 C.F.R. § 20.6 (a)(2) (2019). Here, the representative indicated that representation was not feasible due to “irreconcilable differences with the plan of development” for the claim. Also submitted was a signed statement by the representative confirming that a copy of the withdrawal motion was sent by first-class mail to the Appellant. As such, the Board finds that counsel has provided sufficient good cause for withdrawal pursuant to 38 C.F.R. § 20.6 (a)(2), and the motion is therefore granted. REASONS FOR REMAND 1. Entitlement to service connection for hepatitis C for accrued benefits purposes is remanded. 2. Entitlement to DIC based on service connection for the cause of death of a veteran is remanded. The Appellant contends the Veteran had hepatitis C at the time of his death and that this materially contributed to the cause of his death. She also contends that the Veteran incurred hepatitis C as a result of a blood transfusion following a motor vehicle accident in 1972 while the Veteran was on active duty service. The Board obtained an expert medical opinion in August 2013 which was used as the basis of the denial of the above claims. The VA specialist concluded that the Veteran’s hepatitis C predated his military service and was most likely due to intravenous drug use. However, upon further review, the opinion is inadequate to adjudicate the claims because the examiner employed the wrong standard of review in assessing the evidence. Every veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment, and was not aggravated by such service. 38 U.S.C. § 1132. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has distinguished between those cases in which the preexisting condition is noted upon entry into service, and those cases in which the preexistence of the condition must otherwise be established. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); see also 38 U.S.C. § 1132. In a case where there is no preexisting condition noted upon entry into service, the Veteran is presumed to have entered service in sound condition, and the burden falls to the government to demonstrate by clear and unmistakable evidence that (a) the condition preexisted service and (b) the preexisting condition was not aggravated by service. In this case, the Veteran is presumed to have entered service in sound condition because hepatitis C was not noted in any service treatment records upon entrance to active duty service. The medical specialist who wrote the August 2013 VA advisory opinion evaluated the evidence using a “preponderance of the evidence” standard in concluding that the Veteran contracted hepatitis C prior to military service. The correct question, however, is whether or not (1) the condition clearly and unmistakably existed prior to service; and (2) the condition clearly and unmistakably was not aggravated during service. See Wagner, 370 F.3d at 1092. Additionally, the August 2013 opinion failed to address the Veteran’s inconsistent self-reports in the medical record concerning the onset and history of his drug use. As the Court noted in its memorandum opinion, a February 2002 VA treatment record noted the Veteran’s reports of intravenous drug abuse at the age of 16. A September 2004 treatment record noted that the Veteran had “a history of IV drug abuse and blood transfusion in 1970s, but he has been clean of drugs for the past three decades.” A February 2007 hepatitis clinic consult report documented the Veteran’s report of intravenous drug use in the 1960s that stopped in 1975. The August 2013 opinion also fails to consider recently obtained service treatment records showing the Veteran underwent multiple surgeries during active duty service, which presumably would have placed him at risk of contracting hepatitis C. In light of the medical complexity involved in this case, remand is needed to obtain an expert medical opinion to aid the Board in fully and fairly adjudicating the issues on appeal. 38 U.S.C. § 5109; 38 C.F.R. § 3.328. The matters are REMANDED for the following action: Pursuant to 38 U.S.C. § 5109; 38 C.F.R. § 3.328, obtain an expert medical opinion from a hepatologist or similarly qualified and experienced provider to evaluate the Veteran’s claim. Provide the medical expert with a copy of this Remand for a summary of relevant information and background. Based on a review of the record, the medical expert is to address the following questions: (a.) Does the evidence of record clearly and unmistakably show (i.e., it is undebatable) that the Veteran had hepatitis C that existed prior to his entry onto active duty? (b.) If the answer to (a) is yes, does the evidence of record clearly and unmistakably show that the preexisting hepatitis C was not aggravated by service or that any increase in disability was due to the natural progression of the disease? The examiner is requested to identify any clear and unmistakable evidence with specificity. The examiner is informed that aggravation here is defined as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms beyond its natural progression. (c.) If the answer to either (a) or (b) is no, is it at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran’s hepatitis C had its onset in service? (d.) Is it as least as likely as not that the cirrhosis that was noted to be the immediate cause of the Veteran’s death was related to his diagnosed hepatitis C? The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. If an opinion cannot be provided, the examiner should indicate why this is so. M. E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jack S. Komperda, 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.