Citation Nr: A21016541 Decision Date: 10/08/21 Archive Date: 10/08/21 DOCKET NO. 201222-134970 DATE: October 8, 2021 REMANDED Entitlement to service connection for hepatitis C is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from May 1980 to October 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2020 higher level review decision of the Department of Veterans Affairs (VA) Regional Office (RO). In the December 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the decision on appeal, as well as any evidence submitted by the Veteran with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. This appeal has been advanced on the Board's docket. 38 U.S.C. § 7107(a)(2) (2018); 38 C.F.R. § 20.800(c) (2020). 1. Entitlement to service connection for hepatitis C is remanded. Although additional delay is regrettable, a remand is necessary to allow the Board to make a fully informed decision regarding the Veteran's claim. In his July 2018 statement in support of claim, the Veteran stated that he was exposed to hepatitis C from the inoculation gun used while administering his vaccinations during service. The Veteran has a current diagnosis of hepatitis C and his service treatment records (STRs) indicate he received multiple vaccinations while in service. See June 2018 STRs. While unlikely that air gun injectors would result in transmission of hepatitis, it is biologically possible. M21-1, Part V, Subpart iii. 6.2.e. In addition, the Veteran submitted a December 2020 private medical opinion in support of his contention that he was exposed to hepatitis C from the inoculation gun used in service. See December 2020 Private Medical Treatment Records. However, the private examiner based their opinion on the Veteran's report that he did not have any other risk factors for exposure to hepatitis, including the use of IV drugs, which was not accurate. The Veteran has a history of drug use including cocaine and heroin. See September 2019 VA Medical Treatment Records. There is an indication that the Veteran's disability may be related to service, however the Veteran has not been afforded a VA examination to determine the nature and etiology of his hepatitis C and there is insufficient medical evidence in the file to decide the claim. Therefore, a VA examination is warranted to determine the etiology of the Veteran's hepatitis C. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Appeals Modernization Act (AMA) provides that remands are warranted based on VA's duty to assist prior to the AOJ decision. Pub. L. No. 115-55, § 2(d)(2). The AMA structure allows remand only where VA has committed error in the duty-to-assist (DTA) prior to the decision on appeal. The Board finds there is a deficiency in the record that existed prior to the decision on appeal, VA's failure to provide the Veteran with a VA examination prior to the rating decision. Therefore, remand is necessary to correct the pre-decisional duty to assist error. The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination with an appropriate clinician to determine the nature and etiology of the Veteran's hepatitis C. The claims file must be made available for review, and the examination report should reflect that such review occurred. After reviewing the claims file the examiner must: a. Provide an opinion whether the Veteran's hepatitis C is at least as likely as not (50 percent or more) proximately due to, or the result of, his active service. The examiner must discuss the Veteran's statements regarding his exposure to hepatitis C from the inoculation gun used to administer his vaccinations during service The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. A rationale for all opinions expressed should be provided as the Board is precluded from making medical findings. A discussion of the facts and the medical principles involved will be of considerable assistance to the Board, including citation to any supporting medical treatises. J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Aubee, 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.