Citation Nr: 20080959 Decision Date: 12/23/20 Archive Date: 12/23/20 DOCKET NO. 15-22 685 DATE: December 23, 2020 REMANDED Entitlement to service connection for hepatitis C is remanded. REASONS FOR REMAND The Veteran, who is the appellant in this case, served on active duty from February 1969 to February 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). By way of procedural background, in an October 2018 decision, the Board denied entitlement to service connection for hepatitis C. The Veteran then appealed to the United States Court of Appeals for Veterans Claims. In July 2019, the Court granted the parties’ June 2019 Joint Motion for Partial Remand, vacated the Board’s October 2018 decision, and remanded the matter to the Board. In October 2019 and October 2020, the Board remanded the matter for additional development and to ensure compliance with prior remand directives. The Board notes that in its October 2018 decision, it granted entitlement to service connection for an acquired psychiatric disorder, which is considered a full grant of the benefit on appeal for that claim, and therefore it is no longer before the Board for appellate consideration. AB v. Brown, 6 Vet. App. 35 (1993). 1. Entitlement to service connection for hepatitis C is remanded. The Veteran asserts he is entitled to service connection for hepatitis C, to include as due to air gun inoculations, exposure to blood from dead bodies, exposure to splattered blood from a wounded fellow soldier standing next to him, or to a tattoo. The Board regrettably finds that another remand is necessary to ensure substantial compliance with the Board’s previous remand directives. Stegall v. West, 11 Vet. App. 268 (1998). In October 2020, pursuant to the Board’s October 2020 Remand, the RO obtained an addendum VA medical opinion as to the likely etiology of the Veteran’s hepatitis C. The October 2020 VA examiner (who conducted the March 2020 VA hepatitis examination and rendered medical opinions in March 2020 and July 2020), provided the following opinion: “1. Air gun inoculations: Many research studies say may be, with no definite causal relationship This is not an acceptable explanation or reason currently Compensation & Pension. So less likely than not. 2. Exposure to blood from dead bodies, exposure to blood from wounded service member. This is only possible when there is evidence of open wound or cut on the veteran but not on intact skin. So, I am unable to provide a definite causal relationship without resorting to mere speculation 3. Drug use. Intravenous drug use is high risk factor for contracting blood borne pathogens like Hepatitis C. but veteran denied drug use during the examination and a Primary care clinic at Brooklyn VAMC on 9/13/2010, agent Orange Registry examination on 5/22/2018 So, it is less likely as not to be the cause of his Hepatitis C as veteran denied use. 4. Also, obtain an addendum opinion regarding whether the Veterans hepatitis C is etiologically related to his right arm tattoo from 1974. Yes. tattoo is a very important risk factor for contracting hepatitis C especially around 1974 when was no attention paid to sterilization of instrument, So Less likely than not the cause of hid (sic) Hepatitis C.” On review, the Board finds the October 2020 addendum VA medical opinion inadequate for the following reasons. First, the VA examiner failed to apply the correct standard of proof in the rationale for her negative etiology opinion regarding air gun inoculations. See October 2020 addendum VA medical opinion (“…no definite causal relationship…”) (emphasis added). The Board notes that medical certainty is a higher standard than VA’s standard of proof of “at least as likely as not.” See Hodges v. Sec’y of Dep’t of Health and Human Servs., 9 F. 3d 958, 965 (Fed. Cir. 1993) (Newman, J. dissenting); Jones v. Shinseki, 23 Vet. App. 382, 388 n.1 (2016). Thus, on remand, the VA examiner should explain whether it is at least as likely as not that there is a causal relationship between air gun inoculations and hepatitis C, especially in light of the “[m]any research studies” that “say [there] may be” a causal relationship. Second, the October 2020 VA examiner provided a contradictory opinion as to whether the Veteran’s tattoo, received post-service in 1974, was etiologically related to his hepatitis C. The VA examiner initially indicated that a “tattoo is a very important risk factor for contracting hepatitis C especially around 1974 when was no attention paid to sterilization of instrument,” but then opined that it was less likely than not the cause of his hepatitis C. Therefore, remand is required for further clarification. Accordingly, the matter is REMANDED for the following action: 1. Obtain an addendum VA medical opinion from the VA examiner who completed the October 2020 addendum VA medical opinion, if possible. If this is not possible, an opinion should be rendered by another appropriate examiner. The claims file, including a copy of this Remand, must be made available to, and be reviewed by, the examiner. If another examination is indicated, one should be provided to the Veteran. After a thorough review of the claims file, the examiner is asked to provide opinions as to the following: (a) Whether the Veteran’s hepatitis C is at least as likely as not (50 percent probability or greater) etiologically related to his air gun inoculations during service. * Specifically, address the “[m]any research studies” that “say [there] may be” a causal relationship between air gun inoculations and hepatitis C, as noted in the October 2020 addendum VA medical opinion. * The VA examiner is advised that medical certainty is not the correct standard of proof, as it is a higher standard than VA’s standard of “at least as likely as not.” See Hodges v. Sec’y of Dep’t of Health and Human Servs., 9 F. 3d 958, 965 (Fed. Cir. 1993) (Newman, J. dissenting); Jones v. Shinseki, 23 Vet. App. 382, 388 n.1 (2016). (b) Whether the Veteran’s hepatitis C is at least as likely as not (50 percent probability or greater) etiologically related to the tattoo he received in 1974. * Specifically, address the notation in the October 2020 addendum VA medical opinion that a “tattoo is a very important risk factor for contracting hepatitis C especially around 1974 when was no attention paid to sterilization of instrument.” 2. Thereafter, please review the addendum VA medical opinion and ensure that all requested questions are fully answered by the examiner. If not, please take the appropriate corrective action. (Continued on the next page) 3. Lastly, readjudicate the remanded claim. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. M. Gill, 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.