Citation Nr: 21070017 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 16-38 883 DATE: November 22, 2021 REMANDED Service connection for hepatitis B is remanded. Service connection for hepatitis C is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from September 1966 to December 1968, including service in the Vietnam War. These matters are on appeal from a February 2012 rating decision. In August 2019, the Veteran testified before a different Veterans Law Judge at a hearing. Unfortunately, a written transcript is not available due to an audio malfunction on the hearing recording. The Veteran was informed of the malfunction in a November 2019 letter and provided an opportunity to request a new hearing in accordance with 38 C.F.R. § 20.715 (2021). Because the Veteran requested another hearing, he was afforded one in June 2021. That second hearing was before the undersigned Veterans Law Judge and a transcript is of record. 1. Service connection for hepatitis B is remanded. 2. Service connection for hepatitis C is remanded. VA must provide an examination with regard to a claim for disability compensation when there is competent evidence of a disability that may be associated with an in-service disease, injury or event, but there is insufficient information to make a decision on the claim. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran contends that he contracted hepatitis B during his active duty service, that he was hospitalized for it, that those symptoms have continued to the present, and that they also led to hepatitis C that he had during the period on appeal but that has since resolved. The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event, injury, or disease is a low one. Id., at 83. This evidence meets that threshold, and an examination is necessary. As stated above, the Veteran has reported that he was hospitalized for hepatitis B during his active duty service. On remand, the Agency of Original Jurisdiction should attempt again to obtain any outstanding service treatment records, including hospital records, which are sometimes stored separately from service treatment records. The matters are REMANDED for the following action: 1. Obtain any outstanding service treatment records, including any records of the Veteran's reported inpatient treatment for hepatitis B at Fort Campbell in 1968. Inpatient hospitalization records are sometimes stored separately from service treatment records. Make as many requests as are necessary to obtain relevant records and only end efforts to do so if the records sought do not exist or further efforts to obtain those records would be futile. All negative responses must be documented. If no records are available, the claims folder must indicate this fact and the Veteran should be notified; this notice should advise the Veteran to submit any copies of these records he might have in his possession. 2. Schedule the Veteran for an examination with an appropriate clinician for hepatitis B and C. The entire claims file and a copy of this remand must be made available to the clinician for review. The clinician must provide opinions as to the following: a. Whether it is as likely as not (a probability of 50 percent or greater) that any current hepatitis B had its origin in service or is related to the Veteran's active service, including exposure to herbicides. b. Whether it is as likely as not (a probability of 50 percent or greater) that any current hepatitis C had its origin in service or is related to the Veteran's active service, including exposure to herbicides. The clinician is advised that service connection can be established due to herbicide exposure by direct proof of causation, and that it is insufficient to conclude that there is no direct causation simply because the Veteran's hepatitis is not on the list of diseases and conditions that are presumptively associated with exposure to herbicide agents. The clinician is also advised that a disability is considered "current" if present at any point after December 9, 2010, when VA received the Veteran's claims for service connection. Although an independent review of the claims file is required, the Board calls the clinician's attention to the following: a. The Veteran's contention in his August 2016 substantive appeal (VA Form 9) that his hepatitis B "manifested into" hepatitis C. b. The Veteran's testimony during the June 2021 hearing regarding the onset and continuity of his symptoms, including his contention that his hepatitis was due to consuming contaminated food and water while serving in the Republic of Vietnam. c. Statements from the Veteran's treating VA physicians in May 2012 and August 2021 regarding his diagnoses and treatment. The rationale for any opinion expressed should be provided. Note that the Veteran's service treatment records may be incomplete and that a lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the clinician should so state and provide reasoning as to why this is so. 3. Ensure that the directives specified in this remand have been implemented. If they have not, appropriate corrective action must be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). (Continued on the next page) 4. Then, readjudicate the claims. If any decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ryan Frank, 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.