Citation Nr: 21025381 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 16-31 239 DATE: April 28, 2021 REMANDED Entitlement to service connection for hepatitis C is remanded. Entitlement to service connection for an acquired psychiatric disorder, claimed as depression, to include as secondary to hepatitis C, is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1983 to April 1985. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied entitlement to service connection for hepatitis C and depression. The Veteran timely perfected an appeal to the rating decision. The issues of entitlement to service connection for hepatitis C and depression were previously denied in a January 2010 Board decision, which was final. The Board acknowledges that the RO reopened and denied the Veteran’s claim on the merits. The Board made its own determination that new and material evidence had been received, reopened, and remanded the Veteran’s claims in October 2018. See Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996). The issue of entitlement to service connection for an acquired psychiatric disorder was recharacterized in October 2018 as reflected above given the nature of the Veteran’s claim and the medical evidence of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a claim pursued by a claimant includes any diagnosis that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record). These issues are now back before the Board without a hearing because the Veteran requested, then timely declined a hearing before the Board in April 2007, and no new hearing has been requested. Unfortunately, remand of the Veteran's claims for service connection for hepatitis C and an acquired psychiatric disorder is warranted. Although the Board regrets the additional delay, further development of the record is required before the Board may render a decision in the instant case. Once VA undertakes to provide an examination, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 1. Entitlement to service connection for hepatitis C is remanded. The Veteran contends that hepatitis C was incurred in service, to include as due to immunizations or as due to multiple sexual partners in Germany. The evidence of record substantiates a current diagnosis of hepatitis C. Moreover, the Veteran competently reported that he was given inoculations in basic training with the same needles as other soldiers. Additionally, the Veteran’s immunization records confirm that he was administered immunizations during basic training. In a October 2010 letter, a private physician, Dr. T.B., opined that “it is plausible that [the Veteran] contracted Hep C from the immunizations of the air gun injections or sexual contacts while in service.” The Board finds now as in October 2018 that this opinion is insufficient, standing alone, to warrant a grant of service connection as it is conclusory and without explanation of rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (“A mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to the doctor’s opinion.”). However, as there was a current diagnosis, in-service incidents, and an indication that the disability might be related to service, the Board in October 2018 determined that the Veteran should be scheduled for a VA examination to determine the nature and etiology of his hepatitis C. See McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006). As a result of the 2018 Board remand, the Veteran was afforded a December 2019 VA hepatitis C examination and May 2020 opinion. The Board finds the opinion inadequate for the following reasons: 1. The examiner did not discuss the Veteran’s contention that there was no hepatitis C test done when he left service, so there is no way to know that the Vet was not already infected in service. Namely, the blood test for Hep C was not invented until 1990 or 1992, five or seven years after the Veteran left service. 2. The Veteran submitted a medical treatise that says, Veterans become infected with Hep C in service, and many years can pass before any signs or symptoms appear. 3. The examiner says the Veteran stopped drinking alcohol in 1996, but the record says he stopped in 1986. See 05/03/2006 Med. Treatment Records - note dated 06/11/2002. Because the Board finds both the May 2020 VA medical opinion, which denies service connection for hepatitis C and the Veteran’s treating VA doctor’s October 2010 opinion, which supports service connection, inadequate, a third medical opinion is needed. The requested opinion should reconcile the two prior opinions and correct the problems cited with each in this remand order. 2. Entitlement to service connection for an acquired psychiatric disorder, claimed as depression, to include as secondary to hepatitis C, is remanded. Regarding the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder, the claim is based on a theory of service connection secondary to hepatitic C. As the claim is inextricably intertwined with the primary disability claim, it is also remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). The matters are REMANDED for the following action: 1. Obtain and associate with the Veteran’s claims file all outstanding VA treatment records dated from June 2020 to the present, documenting treatment for the issues on appeal. If any of the records requested remain unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159 (e). All records obtained pursuant to this request must be included in the Veteran’s claims file. If the search for such records has negative results, documentation to that effect should be included in the claims file in accordance with 38 C.F.R. § 3.159 (c)(1). 2. After all available records have been associated with the claims file, forward the claims file to an appropriate examiner to determine the nature, onset, and likely etiology of hepatitis C. The claims folder should be made available and reviewed by the examiner. An examination should only be scheduled if the examiner deems one necessary. All indicated studies should be performed. After reviewing the claims file, the examiner should offer an opinion as to whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran’s hepatitis C had its onset directly during service or is otherwise causally related to any event or circumstance of the Veteran’s active service. A history of all the Veteran’s potential risk factors for hepatitis C infection should be detailed in full. The examiner must list and discuss all documented and reported pre-service, in-service, and post-service risk factors. In so opining, the examiner should specifically address the Veteran’s theory that the hepatitis C resulted from air-gun inoculations, other immunizations, and/or multiple sex partners. The examiner should also discuss the Veteran’s contentions that he first had symptoms of hepatitis C in service, and the article submitted by the Veteran in August 2019 which says Veterans get infected with hepatitis C in service and can go years without signs or symptoms. The examiner should also reconcile the prior medical opinions; one that says service connection is warranted and the other that says the opposite, correcting the shortcomings cited in both. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Black, 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.