Citation Nr: 21013650 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 18-35 641 DATE: March 10, 2021 REMANDED Entitlement to service connection for hepatitis, to include residuals, for substitution purposes, is remanded. REASONS FOR REMAND The Veteran had active service from June 1943 to January 1946. He died in January 2019, and the appellant has been substituted as the claimant. This case came to the Board of Veterans’ Appeals (Board) on appeal from an Agency of Original Jurisdiction (AOJ) decision dated in May 2017. In October 2019, the Board denied service connection for hepatitis, to include any residuals. The appellant then appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2020 Joint Motion for Remand (Joint Motion), the Court, the parties (the appellant and the Secretary of VA) requested that the Board decision be vacated, and the issue remanded. In a September 2020 order, the Court granted the Joint Motion and remanded the claim for action consistent with the terms of the Joint Motion. 1. Service connection for hepatitis, to include any residuals, is remanded. The appellant contends that the Veteran incurred chronic hepatitis and/or residuals of hepatitis in service. In the Joint Motion, the parties stated that although the Board noted that the appellant was the surviving spouse and was properly substituted pursuant to 38 U.S.C. § 5121A, it emphasized that by statute, “entitlement to accrued benefits must be based on evidence in the file at the time of death, or evidence, such as VA records, deemed to be of record at that time.” The Board based this determination upon 38 C.F.R. § 5121(a), which states that the record must be based upon the evidence in the record at the time of death, but did not explain why or how it determined that § 5121(a) instead of § 5121A applied. The parties agreed that remand is therefore warranted in order for the Board to provide adequate reasons or bases for its determination, as to whether the provisions for accrued benefits or substitution apply, in consideration of the foregoing. The appellant has been substituted as the claimant. 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010; VA letter granting substitution request, September 13, 2019. As the substituted claimant, the appellant may proceed in furtherance of this identified claim that was still pending at the time of the Veteran’s death, and has the same rights to submit additional evidence as did the Veteran. 38 U.S.C. § 5121A. In a brief received by VA in September 2020, the Veteran's representative before the Court contended that there are outstanding relevant VA and private medical records. A review of the claims file reflects that additional VA medical records were associated with the file in late October 2019, after the Board decision. These records reflect that the Veteran was receiving private medical treatment in December 2018. On remand, the AOJ should attempt to obtain any additional relevant VA or private medical records of treatment of hepatitis or a liver condition. The Board notes that the Veteran did not report for a VA examination scheduled in July 2017 in connection with his service connection claim. When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, without good cause, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655 (b). It does not appear that the Veteran was advised of the consequences of his failure to report for the examination prior to the scheduled examination. Accordingly, on remand, a VA medical opinion should be obtained as to whether the Veteran had chronic hepatitis or residuals of in-service hepatitis during his lifetime. The matters are REMANDED for the following action: 1. With any necessary releases, obtain relevant VA or private medical records of treatment or evaluation of hepatitis or a liver condition that are not already on file, and associate them with the claims file. If the records are not obtainable (or none exist), the appellant must be notified, and the record clearly documented. 2. Obtain a VA medical opinion regarding the claim of service connection for hepatitis and/or hepatitis residuals. The examiner must review the claims file. The examiner is asked to provide a response to the following: During his lifetime, did the Veteran have chronic hepatitis or residuals of in-service hepatitis, that is at least as likely as not related to service, including his diagnosed hepatitis in Luzon, Philippines in April 1945? Provide a rationale to support the opinion(s). If it is not possible to provide the requested opinion without speculation, 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). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. L. Wasser, 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.