Citation Nr: 21022774 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 15-26 159 DATE: April 19, 2021 REMANDED Entitlement to service connection for hepatitis C is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1969 to January 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).   In September 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ); a transcript is of record.   The Board remanded the appeal in March 2019 to the agency of original jurisdiction (AOJ) for further development. Entitlement to service connection for hepatitis C. The Veteran asserts that his hepatitis C is related to his active military service. Upon review of all evidence of record, although the Board regrets the need for further delay, another remand is necessary to protect the Veteran’s due process rights and ensure compliance with the Board’s prior remand instructions. When the Board remands an appeal, the claimant obtains a right to compliance with its remand orders. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In this regard, the Board finds that the record contains an Exam Scheduling Request in December 2019. The record also shows that on December 5, 2019, a notice letter was sent to the Veteran, informing him that a VA examination was requested through a private medical facility and that the private medical facility will notify the Veteran of the date, time and place of his examination in writing, by telephone, or both. A December 28, 2019 Exam Scheduling Request Contention Cancellation shows that the Veteran failed to report for his scheduled examination appointment. However, the examination date was not included on the cancellation note. There is also no evidence in the record showing that the Veteran was notified of the date, time and place of his examination. While the AOJ specified that the private medical facility may contact the Veteran via telephone to schedule the examination appointment, the fact that the VA notice letter was sent on December 5, 2019 and the examination was scheduled at some point prior to December 28, 2019, would not have provided the Veteran with sufficient notice for planning to attend the scheduled appointment. In addition, after the Veteran had missed the scheduled appointment, the record does not suggest that any follow-up was made to determine if the Veteran had received notice of the examination appointment or if he missed the appointment for good cause. See also April 1, 2021 Written Brief Presentation. Further, the March 2019 Board’s remand directives specifically instructed the AOJ to provide the Veteran with a hepatitis risk factors questionnaire and give him a reasonable period of time to respond. A review of the record shows that although the VA notice sent to the Veteran on October 17, 2019, listed risk factors for hepatitis C infections, it instructed the Veteran to provide any information about his risk factors on VA Form 21-4138 (Statement in Support of Claim). A list of “what the evidence must show for service connection for hepatitis C” was also included with the VA notice. However, a hepatitis risk factors questionnaire was not enclosed. The Board notes that a risk factor questionnaire should have been included with the October 17, 2019 VA notice letter or if such questionnaire is not available, the AOJ should note such. The RO readjudicated the claim based on the existing evidence of record, and, in an August 2020 Supplemental Statement of the Case (SSOC), continued to deny service connection for hepatitis C, specifically noting the Veteran’s failure to appear for the scheduled examination and failure to provide a response to the hepatitis risk factors questionnaire as the basis for denial. See 38 C.F.R. §§ 3.159, 3.655(b). Consequently, the Board finds that additional development is needed, to include, if necessary, obtaining a medical nexus opinion based solely on a review of the record. Stegall, supra. At this time, the Board notes that the Veteran is advised that the duty to assist is not a one-way street. He cannot stand idle when the duty to assist is invoked by failing to provide important information or otherwise failing to cooperate. Woods v. Gober, 14 Vet. App. 214, 224 (2000); Hurd v. West, 13 Vet. App. 449, 452 (2000) (noting that a veteran cannot passively wait for help from VA). The Veteran is encouraged to appear for any scheduled VA examination. The matter is REMANDED for the following action: 1. Provide the Veteran with a hepatitis risk factors questionnaire and give him a reasonable period of time to respond. Any and all information obtained in response must be made part of the file.  All attempts to contact the Veteran must be documented in the claims file, and if, after a reasonable period of time the Veteran does not provide a response, send a notice to the Veteran and his representative and provide an opportunity for a response prior to taking any further action.  If a hepatitis risk factors questionnaire for Veterans is not available, such should be noted. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his hepatitis C. The claims file and a copy of this remand must be made available to the reviewing examiner, and the examiner should indicate in the report that the claims file was reviewed. The examination should include any diagnostic testing or evaluation deemed necessary for the specific claimed disability. The AOJ should document all efforts undertaken to contact the Veteran and his representative when attempting to schedule the examination. Such should be included in the claims file. If, for any reason, the Veteran does not attend the requested examination, a competent medical professional should review the file and provide the requested opinion to the extent possible based on a review of the claims file. The VA examiner should respond to the following inquiries: (1) Is it at least as likely as not (i.e. a 50 percent probability or greater) that the Veteran’s hepatitis C began during, or is otherwise related to, the Veteran’s active duty service. In answering this question, the examiner is asked to address the diagnosis of “viral hepatitis” and “epidemic hepatitis” in the Veteran’s service treatment records. The examiner must provide a complete rationale for all opinions expressed. As part of the rationale, the examiner should address the Veteran’s lay statements, to include his answers to the hepatitis risk factors questionnaire, and identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). A discussion of the facts and medical principles involved would be of considerable assistance. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination, or whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Kuzniar, 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.