Citation Nr: 20080839 Decision Date: 12/23/20 Archive Date: 12/23/20 DOCKET NO. 14-24 387 DATE: December 23, 2020 REMANDED Entitlement to service connection for hepatitis C is remanded. REASONS FOR REMAND The Veteran had active service with the Army from September 1969 to January 1973. This matter is on appeal to the Board of Veterans’ Appeals (the Board) from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2017, the Veteran testified during a video teleconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the evidence of record. The Veteran contends he is entitled to service connection for hepatitis C. During his August 2017 hearing, he testified he was diagnosed with hepatitis non-A and non-B in the mid-1990s, which was later named hepatitis C. He reported receiving blood transfusions during his active service in 1972. He also reported exposure to the blood and bodily fluids of others in service. Although he was trained as a clerk he reported being assigned where there was need. He reported working as a litter-bearer for almost a year helping to transport the wounded to field hospitals. The Veteran also testified to intravenous drug use during his active service. He was diagnosed with unspecified viral hepatitis C, genotype 1b. In April 2013, the Veteran reported to doctors that he had received two blood transfusions in Vietnam, injected heroin, and swallowed the vomit of an injured soldier he was helping to transport. His military personnel records show he went AWOL from June 1971 to January 1972. He was hospitalized upon his return and treated for heroin withdrawal. A.D., a physician from Beckley VAMC, opined in September 2017 that the Veteran had a current disability of hepatitis C, which was most likely caused by or a result of (51 percent probability or better) an event while in service. Her rationale noted that the Veteran had been stationed in a hospital and he was exposed to blood borne illnesses. Additionally, he had a history of exposure to hepatitis C through needle stick injury. This could be the cause of hepatitis C. In January 2018, the Board remanded the claim for further development. The Board noted the Veteran’s lay reports of exposure in service as well as the September 2017 medical opinion discussed above. Based on the information in the file, a VA examination was found necessary under McLendon v. Nicholson, 20 Vet. App. 79 (2006). The examiner was asked to specifically consider and discuss the Veteran’s reports of in-service exposure to the bodily fluids of other soldiers, blood transfusions, and history of heroin abuse. He underwent a VA examination in September 2018. The Veteran was diagnosed with hepatitis C. The examiner opined it was at least as likely as not that the Veteran’s hepatitis C was incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted the September 2017 private opinion. He also noted the Veteran’s hospitalization for heroin withdrawal in service. However, the examiner noted there was no indication in his records of his method of drug abuse. It was noted that heroin is most often injected intravenously but that a segment of the using population would sniff, snort, and smoke heroin to avoid the dangers of sharing needles. Overall, the examiner concluded that the medical history provided was consistent with the development of hepatitis C from an incident while in service with a 50 percent or greater probability. In December 2019, the Board remand the claim to obtain a clarifying opinion for the September 2018 VA examination. The Board found the examiner’s notation that heroin was most often injected intravenously but that there was a segment of the population who would sniff, snort, and smoke the substance to avoid the dangers of needle sharing was unclear. It was unclear if the examiner was suggesting that intravenous injection was the most probable method of use by the Veteran despite the lack of notation in the records or suggesting that his hepatitis C was not etiologically related to his in-service heroin use due to the possibility he might have had another method of use (i.e., sniffing, snorting, or smoking). Furthermore, the Board found the examiner’s conclusion too conclusory. The examiner opined there was a 50 percent or greater probability that the development of hepatitis C from an incident while in service was consistent with the medical history provided. The examiner referred to the September 2017 private opinion. That opinion discussed several incidents that could have exposed the Veteran to hepatitis C. It was unclear which “incident” was being referenced by the examiner. The remand requested a clarification of whether a) the Veteran’s hepatitis C condition was at least as likely as not related to his reported exposure to human blood or bodily fluids in service or b) the Veteran’s hepatitis C condition was at least as likely as not related to his heroin use in service. He underwent another VA examination in January 2020. The examiner opined it was less likely than not (less than 50 percent probability) that the Veteran’s hepatitis C was incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that the Veteran might have had exposure to hepatitis C in service based on his history of two blood transfusions or from heroin abuse at the same time, but there was not enough medical evidence to support finding he contracted it from either the substance abuse or the blood transfusion. The examiner opined that the etiology of his hepatitis C was no longer applicable because there was no objective evidence to support a current diagnosis. A nexus to service could not be established because his hepatitis C had been cured. The requirement for a “current disability” is satisfied when the Veteran has a disability at the time a claim is file or during the pendency of the claim. A disability may still qualify for service connection even if it resolves prior to final adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). As was discussed in detail above, the Veteran had a current disability of hepatitis C during the pendency of his appeal. Therefore, the January 2020 VA examiner erred in finding the etiology of the Veteran’s hepatitis C was not applicable because the condition had been cured and remand is again appropriate. Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). The matters are REMANDED for the following action: 1. Obtain and associate any outstanding VA and non-VA treatment records with the claims file. 2. Obtain an addendum opinion from the January 2020 VA examiner regarding the etiology of the Veteran’s hepatitis C as the Veteran had a current disability during the pendency of his claim. If the January 2020 examiner is unavailable, the requested opinion with rationale should be obtained from another appropriate clinician. If the examiner determines that a new examination is necessary one should be scheduled for the Veteran. The complete record, including a copy of this remand and the claims folder, should be made available to and reviewed by the examiner. Based on a review of the entire record, the examiner should opine on the following: (a.) Whether it is at least as likely as not that the Veteran’s hepatitis C is related to his contended exposure to human blood or the bodily fluids of others in service. (b.) Whether it is at least as likely as not that the Veteran’s hepatitis C is related to his in-service heroin abuse. The supporting rationale for all opinions rendered must be provided. 3. Thereafter, the issue on appeal should be readjudicated. If the benefits sought on appeal remain denied, furnish the Veteran and his representative with a supplemental statement of the case and afford them the opportunity to respond before returning the file to the Board for further consideration. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.L. Byers 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.