Citation Nr: 20080415 Decision Date: 12/22/20 Archive Date: 12/22/20 DOCKET NO. 15-37 509 DATE: December 22, 2020 REMANDED Entitlement to service connection for hepatitis C is remanded. REASONS FOR REMAND The Veteran served in active duty service with the Marine Corps from August 1975 to December 1975 to include service in the Marine Corps Reserve. This matter is on appeal from a December 2011 rating decision. The Veteran was afforded a hearing in March 2005 and another hearing in January 2019 with the undersigned Judge in January 2019. A transcript of the hearing has been associated with the record. The Board remanded this appeal in May 2019 and in April 2020 for additional development. The Board finds that remand for additional development is warranted before adjudication of the Veteran’s appeal. In the April 2020 Board decision, the Board remanded the Veteran’s claim for hepatitis C for an addendum opinion to discuss the Veteran’s statements and testimony for possible risk factors to include air gun vaccinations, shared razors, drug use, and tattoos in relation to his hepatitis C. In a submitted June 2020 VA opinion, the examiner noted that review of the claims record was performed to include the Veteran’s statements, testimony, and Board decision. The examiner cited medical literature discussing the epidemiology and transmission of the hepatitis C virus infection and listed the odds ratio of hepatitis C transmission among several types of risk factors to include intravenous drug use, blood transfusion, piercings, and immunoglobulin injections. The examiner found that the Veteran did have a diagnosis for hepatitis C. The examiner further found there was no objective finding or diagnosis or treatment in the Veteran’s service treatment records (STRs) for hepatitis C until after separation from service. The examiner also found that the Veteran’s STRs were silent for objective findings of medical records of exposure to hepatitis. The Board notes the examiner opined that the “Veteran’s subjective statement of contracting hepatitis C while in military service were considered.” However, the examiner did not explain whether the Veteran’s statements were rejected nor did the examiner provide an explanation for rejecting the Veteran’s statements regarding his symptoms or claimed risk factors resulting in exposure. The Board notes the Veteran is competent to report his medical history and symptomatology regarding his hepatitis C. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Additionally, a medical examiner cannot rely on the absence of medical records corroborating the claimed disability to conclude that there is no relationship between the appellant’s current disability and his military service. See Dalton v. Nicholson, 21 Vet. App. 23, 40 (2007). Furthermore, the Board notes that the mere absence of medical records does not contradict a Veteran’s statements about his symptom history. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). The Board notes that in an August 2020 submitted statement, the Veteran stated that he was sexually assaulted three times during boot camp and wondered if he contracted hepatitis C from these incidents. Under these circumstances, the Board finds the June 2020 opinion inadequate and that another remand is required. See Barr v. Nicholson, 21 Vet. App. 303 (2007), Stegall v. West, 11 Vet. App. 268 (1998) (holding that where remand instructions are not followed, the Board errs as a matter of law when it fails to ensure compliance). Therefore, the Board finds that remand for compliance with the April 2020 Board remand instructions is warranted. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all updated treatment records. 2. Return the claims file to the VA examiner who provided the June 2020 opinion, if available, for an addendum opinion. The need for another examination is left to the discretion of the examiner providing the opinion. The Veteran’s claims file should also be made available to and be reviewed by the reviewing clinician. In completing this examination, the examiner is asked to respond to the following: (a.) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s hepatitis C had its onset during, or is otherwise related to, his active duty service? (b.) In rendering the requested opinion, the VA examiner should consider and discuss all identified risk factors, prior to, during, and after service, including drug use, sharing razors, tattoos, and high-risk sexual behavior. The examiner should also note his testimony regarding potential exposure to include that his first wife had hepatitis C when her blood got on the Veteran when she was accidently shot and killed by the Veteran, and being sexually assaulted during boot camp. (c.) The examiner is instructed not to rely on the absence of medical records corroborating an in-service injury or disease as the sole basis for finding no nexus between the Veteran’s claimed disability and the Veteran’s military service. The examiner should address the particulars of this Veteran’s medical history and the relevant medical science as applicable to this claim. If the examiner chooses to reject the Veteran’s lay statements or reports, the examiner must provide a reason for doing so. (d.) The examiner is also advised that the Veteran is competent to report in-service events and treatment, and his symptoms and history, and such reports and assertions must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so. (e.) A complete rationale is requested for all opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he/she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 3. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if in order. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Yang, Attorney-Advisor 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.