Citation Nr: 21062078 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 11-14 674 DATE: October 6, 2021 REMANDED Entitlement to service connection for hepatitis C, to include as secondary to service connected disabilities, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from January 1971 to November 1972, which includes verified service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran testified before the Board at a hearing conducted on June 20, 2017. A transcript of this hearing was produced and is available for Board review. In November 2019, the Veteran was informed that the Veterans Law Judge who conducted that hearing is no longer employed by the Board. The Veteran was duly informed of his right to a new hearing before the new Veterans Law Judge, which he could have exercised by returning a form sent to him for this purpose. The Veteran did not respond to this notice. As a result, the Board has considered his claim based on the evidence of record. The Board remanded the case for further development on October 24, 2017. In a January 16, 2020 decision, the Board denied entitlement to service connection for hepatitis C. The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court). In a November 23, 2020 Order, the Court granted a Joint Motion for Remand (JMR) filed by the parties to vacate the January 2020 Board decision and remand the case. See Court JMR (Nov. 23, 2020). Thereafter, the matter was remanded on April 15, 2021 in order to develop the Veteran's claim as mandated by the JMR. The Veteran's claims file was duly forwarded to an examiner on July 15, 2021, who supplied an addendum opinion. See VA Exam (July 15, 2021). The Veteran was then issued a Supplemental Statement of the Case (SSOC) on September 8, 2021. The Board accordingly reasserts jurisdiction. For the reasons to follow, the Board concludes that the Veteran has not yet been afforded substantial compliance with all previous remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the Board determines that the claim on appeal must be remanded. The Board sincerely regrets additional delay that may be incurred as due to this additional remand, but the Board is simply precluded from issuing a final determination herein. Entitlement to service connection for hepatitis C, to include as secondary to service connected disabilities, is remanded. As stated by the April 2021 Board remand, the July 2021 examiner was tasked with fully considering all theories of service connection for the Veteran's diagnosed hepatitis C that is causally or etiologically related to military service. Even though an opinion is on file that specifically considers the "biological plausibility" of hepatitis C contraction in service from an "air gun" vaccine injector, there is no opinion as to whether the Veteran's hepatitis C is secondarily aggravated beyond its natural progression by a separate service-connected disorder, including but not limited to diabetes mellitus type II. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (holding that findings of "not due to," "not caused by," and "not related to" a service-connected disability are insufficient to address the question of aggravation under 38 C.F.R. § 3.310(b)). Under the circumstances of this claim, the Board concludes that secondary aggravation is reasonably raised by the record. See, e.g.: VA Exam (Aug. 12, 2021), at Question No. 4C (offering opinions that other claimed disorders are secondary to diabetes mellitus type II, but offering no etiological opinion as to whether hepatitis C is secondary to it); VSO IHP (Sept. 22, 2021). As a result, the Board concludes that the Veteran is entitled to substantial compliance with all previous remand directives, see Stegall v. West, 11 Vet. App. 268, 271 (1998), and that to afford him substantial compliance, a remand is required to obtain an opinion as to secondary aggravation. The matter is REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records, to include any VA treatment records, should be obtained. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative, and afford them an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, then return the claims file, to include a copy of this remand, to the July 2021 VA examiner for an addendum opinion. If the examiner who drafted the July 2021 opinion is unavailable, the opinion should be rendered by another appropriate medical professional. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. The examiner is asked to answer the following question: With regards to the diagnosed hepatitis C, the examiner should offer an opinion as to whether it was at least as likely as not (a 50 percent or higher probability) that such disorder was caused or aggravated by a service-connected disorder, including but not limited to diabetes mellitus type II? A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (Continued on the next page) The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael B. Engle, 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.