Citation Nr: 21028344 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 13-30 508 DATE: May 11, 2021 REMANDED Entitlement to service connection for Hepatitis C, to include under the provisions of 38 U.S.C. § 1151, is remanded. REASONS FOR REMAND The Veteran had a period of active duty for training from September 1974 to January 1975. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision from the Atlanta, Georgia Regional Office (RO) for the Department of Veterans Affairs (VA). In a July 2019 decision, the Board denied entitlement to service connection for sleep apnea and hepatitis C. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (CAVC). In December 2020, CAVC issued an order granting the parties' Joint Motion for Partial Remand (JMPR) to vacate the Board's July 2019 decision on the claim for service connection for hepatitis C and remanded the case to the Board for compliance with the JMPR. The parties agreed that the Board relied on an inadequate examination to reach its decision in July 2019. The Board notes that the July 2019 decision included a denial of service connection for sleep apnea. The Veteran chose not to appeal that issue, as noted in the JMPR, so the appeal as to that issue was dismissed by the CAVC and the Board's decision became final. That matter is not before the Board. 1. Entitlement to service connection for Hepatitis C, to include under the provisions of 38 U.S.C. § 1151, is remanded. Though the Board regrets the additional delay remand is required for an adequate VA opinion. Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As noted above, in December 2020, CAVC granted a JMPR and remanded the Veteran's claim of service connection for Hepatitis C disability to the Board to address an inadequate January 2018 VA examination which contained an inadequate rationale. The JMPR noted that the January 2018 VA opinion was inadequate due to lack of rationale. The examiner indicated that the examiner would only be resorting to mere speculation to determine whether the cause of Hepatitis C was a transfusion in service. Id. However, under Jones v. Shinseki, 23 Vet. App. 382, 390 (2010), before the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, but the examiner must explain the basis for such an opinion. In this case, the examiner failed to provide a rationale as to why an opinion could not be provided, and the examination report is inadequate. 38 C.F.R. § 4.2 In addition, it was noted that the examiner failed to reconcile evidence in the record regarding blood transfusions. In the examination report, the examiner stated that "even if a transfusion was performed" while the Veteran was in service, the examiner could not provide an etiology opinion. However, the Veteran's service records contained evidence that the Veteran received several units of blood for treatment of a gunshot wound, including identification of five separate units of blood in July 1986. The JMPR noted that the examiner should have discussed this relevant evidence regarding blood transfusions during the Veteran's service. On remand, the Veteran must be afforded an adequate examination, and the examiner must address this evidence of transfusions during service and provide an adequate rationale for the provided opinions. The matters are REMANDED for the following action: 1. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 2. Contact the appropriate VA Medical Centers and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified, and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 3. After any additional records are associated with the claims file, schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's Hepatitis C. The claims file must be provided to the examiner in conjunction with the examination. The examiner must provide an opinion as to the following questions: (a) Is it at least as likely as not (50 percent or greater) that the Veteran's Hepatitis C had its clinical onset during service or is related to any in-service disease, event, or injury, to include as etiologically related to his exposure to contaminated waters at Camp LeJeune. (b) The Veteran contends his Hepatitis C is a result of treatment and a blood transfusion at the Augusta VA Medical Center that he received after sustaining a gunshot wound to his face in 1986. The examiner should address the following: (1) Did the Veteran sustain any additional disability either directly or through aggravation of her preexisting condition, as a result of the VA BLANK surgery? If so, what is that additional disability. (2) If such additional disability was sustained, was it the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care or medical or surgical treatment. (3) Did VA fail to exercise the degree of care that would be expected of a reasonable health care provider; and (4) Was the proximate cause of any additional disability an event not reasonably foreseeable? The examiner must provide a comprehensive report including complete rationales for all conclusions reached. J. CONNOLLY Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board AK 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.