Citation Nr: 20028327 Decision Date: 04/22/20 Archive Date: 04/22/20 DOCKET NO. 15-18 530 DATE: April 22, 2020 REMANDED Entitlement to service connection for hepatitis C is remanded. REASONS FOR REMAND The Veteran had active service from December 1968 to February 1972. In June 2018, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. Additionally, in June 2018, the Board remanded this matter for further evidentiary development. 1. Entitlement to service connection for hepatitis C is remanded. The Veteran initially contended his hepatitis C resulted from immunizations in service, and now contends it resulted from exposure to blood products in service. In the June 2018 remand, the Board sought a medical nexus opinion to determine the probable etiology of hepatitis C. The examiner was asked to provide an opinion as to whether the Veteran’s hepatitis C was related to service, to include his immunizations and/or exposure to blood and dead bodies therein. The examiner was asked to identify all the Veteran’s potential risk factors for contracting hepatitis C. In a May 2019 DBQ (disability benefits questionnaire), the Veteran reported he was diagnosed with hepatitis C in the 2000s, and no known risk factors were noted. Because the VA examiner rendered a positive opinion based on facts that were not in the record, the Agency of Original Jurisdiction sought an addendum opinion. In June 2019, a VA examiner gave a negative opinion, and, for rationale, noted that although the claims file indicated the Veteran did have a diagnosis of hepatitis, with a liver transplant in 2011, “there [was] no further documentation prior to 2011 in the claims file”, “there was a 39 year gap” and, therefore, a nexus was not established. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds problematic the June 2019 VA examiner’s opinion and rationale. First, in the June 2019 DBQ report, there was no mention or discussion of the Veteran’s risk factors. Second, the Board notes there was documentation of hepatitis in the claims file prior to 2011, including in an undated letter from Saratoga County Public Health, internally date stamped in June 1999, in which it was noted that the Veteran’s laboratory report showed he tested positive for hepatitis C. In light of the foregoing, an addendum medical opinion regarding the Veteran's hepatitis is needed in order to address the inadequacies in the June 2019 DBQ report, which did not address his risk factors, as well as the inadequacies in the June 2019 VA examiner’s rationale, which noted that there was no documentation of hepatitis C prior to 2011 in the claims file. The Board notes further that VA has recognized a number of risk factors for hepatitis C, to include: transfusion of blood or blood products (before 1992); organ transplant (before 1992); hemodialysis; tattoos; body piercing; IV drug use (from shared instruments); high-risk sexual activity; intranasal cocaine (from shared instruments); accidental exposure to blood products as a health care worker, combat medic, or corpsman by percutaneous (through the skin) exposure or mucous membrane exposure; and, other direct percutaneous exposure to blood, such as by acupuncture with non-sterile needles or the sharing of toothbrushes or shaving razors. Also, VA recognizes that transmission of the hepatitis C virus with air gun injections is "biologically plausible". With regard to risk factors, a September 2017 VA treatment record noted the Veteran denied a history of tattoo, and intravenous or intranasal drug use. At the June 2018 videoconference hearing, the Veteran testified his hepatitis C resulted from exposure to blood products in service and that he had no other risk factors. When questioned at the hearing as to whether he was aware of other risk factors and whether he used shared needles or drugs, the Veteran responded “no”. Of record, however, is a private treatment record dated in April 2019, from Mt. Sinai hospital (where the Veteran underwent a liver transplant and receives ongoing post-transplant care), in which it was noted that at 19 years old, the Veteran used intravenous (IV) drug 2 times; and that he had hepatitis C due to IV drugs at age of 19. A veteran cannot receive VA benefits for a disability that is the result of willful misconduct or the abuse or alcohol or drugs. 38 U.S.C. § 105; 38 C.F.R. § 3.301. The use of illegal drugs constitutes willful misconduct, and service connection for hepatitis C based on IV drug abuse cannot be established on those grounds. On remand, however, the VA examiner must address any other risk factors listed. Additionally, on remand, an attempt should be made to obtain pertinent treatment records for the Veteran’s from Mt. Sinai Hospital. Although the Veteran recently submitted some records from this institution, it is clear from the record that he has been receiving treatment there since at least 2011, when he underwent the liver transplant, up to at least 2019, to include treatment for hepatitis C. The matters are REMANDED for the following action: 1. With any assistance needed from the Veteran, attempt to obtain relevant treatment records from Mt. Sinai Hospital, dated from 2011 to the present, related to treatment for hepatitis C. A negative reply should be requested. 2. Forward the claims folder to the June 2019 VA examiner for an addendum opinion. The examiner should review the claims folder and provide an opinion as to whether it is at least as likely as not that the Veteran’s hepatitis C is related to military service, to include his immunizations and/or exposure to blood and dead bodies therein. The examiner must identify all of the Veteran’s potential risk factors for contracting hepatitis C, to include whether those risk factors occurred prior to, during, or subsequent to service. The examiner must explain the rationale for any opinion(s) given, and if unable to provide the requested opinions without resorting to speculation, the examiner should so specify, along with an explanation as to why that is so. If the examiner feels the requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Finally, if the June 2019 VA examiner is no longer available, the claims file should be forwarded to another appropriate VA examiner for a medical opinion. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Casula 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.