Citation Nr: 21012606 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 14-38 898 DATE: March 4, 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 April 1969 to November 1970, including service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The claim was previously before the Board in November 2018, at which time the Board remanded the claim to the agency of original jurisdiction (AOJ) in order to afford the Veteran a VA examination to determine the nature and etiology of his hepatitis C. As there has not been substantial compliance with its prior remand directives, further development is necessary. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for hepatitis C is remanded. Although it regrets the additional delay, the Board finds that another remand is required in this case before the Veteran’s appeal for entitlement to service connection for hepatitis C can be properly adjudicated on its merits. The Veteran contends that his hepatitis C was incurred in service, caused either by sharing needles when using drugs intravenously, as self-treatment for PTSD, or by a contaminated needle used to give him a tattoo. See, e.g., Appellate Brief dated February 16, 2021; see also VA Form 21-4138, Statement in Support of Claim, dated January 19, 2006. Although the Veteran’s separation examination did not document the existence of any tattoos upon his military discharge, the Veteran has furnished multiple lay statements, including from his parents, asserting that he received a tattoo while on active duty in Vietnam. See service treatment records dated November 30, 1970; see also, e.g., lay statement from L.T., dated February 15, 2006. Alternatively, the Veteran posits that his hepatitis C could have resulted either from receiving vaccinations in-service from contaminated injection guns or from sharing razors and/or toothbrushes while in Vietnam. See VA Form 21-4138, Statement in Support of Claim, dated March 15, 2006. He further asserts that he unknowingly experienced symptoms of hepatitis C while on active duty service. See id.; see also medical treatment records dated June 22, 2004. In relevant part, the record contains a medical opinion in which a physician concluded that the Veteran’s IV drug use “is the most likely cause of his [hepatitis C] infection.” See medical opinion dated September 20, 2011. However, for the purpose of granting disability benefits through VA, service connection cannot be awarded for injuries or diseases incurred in the line of duty that are the result of the claimant’s own willful misconduct or abuse of alcohol or drugs. See 38 U.S.C. § 105(a). However, where such drugs are used for therapeutic purposes in the self-treatment of a service-connected disability, as the Veteran asserts here, consideration of service connection is not automatically barred. 38 C.F.R. § 3.301(c)(3). Pursuant to the Board’s November 2018 remand, the AOJ obtained a medical opinion addressing whether the Veteran’s IV drug use was at least as likely as not a coping mechanism for in-service PTSD. In a September 2019 opinion, a VA physician opined that the Veteran’s hepatitis C was at least as likely as not caused by the in-service use of IV drugs. See medical opinion dated September 24, 2019. However, he was unable to comment on whether the Veteran’s IV drug use during service may have been considered a form of self-treatment for PTSD-related symptoms. Furthermore, he did not address the other potential risk favors for hepatitis C mentioned by the Veteran. The AOJ obtained another medical opinion in July 2020, in which a psychologist determined that the Veteran’s IV drug use during service was less likely than not a form of self-treatment for PTSD-related symptoms. See medical opinion dated July 14, 2020. The opinion is internally inconsistent, though, in that the psychologist further explains that “it is impossible to determine whether or not the Veteran had PTSD while in Vietnam without resorting to mere speculation.” Thus, the medical opinions currently of record are inadequate for adjudicative purposes. The Board must ensure compliance with the terms of its prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand confers on the veteran, as a matter of law, the right to compliance with the remand orders). In the present case, the Board finds that there has not been substantial compliance with its November 2018 remand directives. Therefore, another remand is required in order to procure a medical opinion adequately addressing all the Veteran’s contentions about the etiology of his hepatitis C. Accordingly, the matter is REMANDED for the following action: 1. Send the Veteran’s claims file to an appropriate clinician to obtain an additional medical opinion with respect to the issue on appeal. ONLY IF a new examination is deemed necessary to respond to the questions presented, should one be scheduled. Following a review of the claims file, the clinician should provide the following opinion: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s in-service IV drug use was a form of self-treatment for PTSD? (b.) If not, is it at least as likely as not (50 percent probability or greater) that the Veteran’s hepatitis C was caused by another potential risk factor, including exposure to a contaminated tattoo needle or vaccination injection gun and sharing razors and/or toothbrushes during his active duty military service? (c.) Is it at least as likely as not (50 percent probability or greater) that the Veteran experienced symptoms of hepatitis C while on active duty service, to include complaints of fever, chills, headaches, dizziness, and body pains such as those documented in October and December 1969 service treatment records? The clinician should take into consideration that the Veteran is competent to report in service and post-service symptomology. The clinician must explain the rationale for all opinions and conclusions in detail, citing to supporting clinical data and/or medical literature, as appropriate. If the clinician cannot provide an opinion without resorting to speculation, the clinician should provide an explanation as to why this is and note what, if any, additional evidence would permit such an opinion to be rendered. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Tolbert, 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.