Citation Nr: 22016164 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 18-51 318 DATE: March 21, 2022 REMANDED Entitlement to service connection for hepatitis C is remanded. Entitlement to service connection for hepatic disability due to cirrhosis, hepatocellular carcinoma (liver cancer), and status post liver transplant, as secondary to hepatitis C, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from December 1968 to September 1971. These matters come before the Board on appeal from a February 2015 rating decision by Department of Veterans Affairs, Regional Office. In August 2021, the Veteran testified before the undersigned Veterans Law Judge during a Board hearing. A copy of the hearing transcript has been associated with the claims folder. In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. Indeed, the Board expressly defers a credibility determination in this appeal until the records development has been completed to the extent feasible. 1. Entitlement to service connection for hepatitis C is remanded. 2. Entitlement to service connection for a hepatic disability due to cirrhosis, hepatocellular carcinoma (liver cancer), and status post liver transplant, as secondary to hepatitis C is remanded. The Veteran contends that he developed hepatitis C as a result of injections with bloody air guns at his service induction and/or from sharing razors with fellow servicemen. He reports that, while in line for his vaccinations, he witnessed others bleeding from it and that the air guns were not cleaned between the administration of the vaccine to servicemembers. See VA 21-4138 Statement in Support of Claim (March 2016). In addition, he reports shaving with shared razors when he was stationed in Republic of Vietnam. See Correspondence (February 2015). The Veteran further asserts that his hepatitis C resulted in additional liver disability that ultimately required him to undergo a liver transplant in 2015. See NOD (February 2015) and Hearing Transcript (August 2021). Service treatment records (STRs) do not show any complaints or findings for abnormal pathology of hepatic system to include the liver disease. STR reflect that the Veteran received multiple vaccinations shortly after his induction into service, but not the method of vaccination is not shown. The Veteran does not report that he was diagnosed with hepatitis C or any liver-related disease during service. Hepatitis C is first documented in October 1999, for which he was initially treated and then had recurrences in 2008 and 2014. See Medical Treatment Record - Government Facility (June 2021). Cirrhosis of the liver was confirmed by a February 2001 private liver biopsy, and the Veteran was diagnosed with enlarging hypervascular hepatic mass as secondary to cirrhosis and hepatitis C based on a 2014 private MRI report. See Medical Treatment Record - Non-Government Facility (November 2014). The Veteran underwent an orthotopic liver transplant in January 2015, and the liver explant demonstrated cirrhosis secondary to hepatitis C and minimally treated liver cancer. See VA Examination (June 2021). The Board takes judicial notice of the following. VA has recognized that hepatitis C is clinically asymptomatic as an acute disease, and chronic disease develops in 80 percent of cases following the acute phase where a diagnosis is generally made incidentally many years later. Known risk factors for hepatitis C include the following: intravenous (IV) drug use, blood transfusions before 1992, organ transplants before 1992, hemodialysis, intranasal cocaine use, high-risk sexual activity, accidental exposure while a health care worker, and various kinds of percutaneous exposure such as tattoos, body piercing, acupuncture with non-sterile needles, and shared toothbrushes or razor blades. Air gun injectors, which were commonly used to administer vaccinations to Vietnam-era service members, have been recognized as a "biologically plausible" means of transmission of hepatitis C. To ensure that VA has satisfied its duty to assist, a remand is needed for the following reasons. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). First, the record does not reflect development for the Veteran's hepatitis C risk factors, to include that a questionnaire was sent to or completed by the Veteran. As such, remand for this development is needed. Second, remand is required to obtain outstanding relevant treatment records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim, including making reasonable efforts to obtain relevant privat medical records. 38 C.F.R. § 3.159(c)(1). The record lacks any of the private treatment records pertaining to when he was first diagnosed with, and treated for, hepatitis C, despite those records being referenced in a June 2021 medical statement by a VA medical provider. See Medical Treatment Record - Government Facility (June 2021). This medical statement identified outstanding records from a Dr. Phillips dated in 1999, which have not been associated with the claims folder. Additionally, the medical statement also identified private treatment records from Dr. Malik from 1999 to 2001, and Moses Cone Health System and University of North Carolina School of Medicine from January 2008 to April 2009, and a complete set of those records have not been associated with the claims folder. VA treatment records also reflect that the Veteran started to receive relevant treatment at Emory in September 2014. See CAPRI (January 2017). Therefore, remand is required to afford the Veteran an opportunity to authorize release of these relevant records to VA. 38 U.S.C. § 5103A(b); 38 C.F.R. § 3.159(c)(1). Third, a remand is necessary to obtain a VA medical opinion on the etiology of the Veteran's hepatitis C. While the Veteran submitted a June 2021 medical statement by A.S., MD, the director of hepatology at VA medical center in Atlanta, which concluded that "based on his risk factors, the Veteran contracted hepatitis C as result of exposure conditions related to his military service," this opinion is not adequate for adjudication purposes. The opinion is solely conclusory, and contains no rationale for the conclusion reached. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) ("A mere conclusion by a medical doctor is insufficient to allow he Board to make an informed decision as to what weight to assign to the doctor's opinion."). In this regard, the opinion lacks any meaningful explanation as to why the Veteran's hepatitis C was at least as likely at not contracted through his claimed in-service risk factors as opposed to other possible risk factors. Although the medical opinion is inadequate to support the claim for service connection, it is sufficient to trigger's VA's duty to assist to obtain a VA medical opinion to determine the most likely etiology of his hepatitis C. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, a remand is needed for such a VA medical opinion. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Veteran is reminded that VA's duty to assist in the development of a claim is not a one-way street and claimants cannot passively wait for it in those circumstances where they may or should have information that is essential to establishing their claim. Wood v. Derwinski, 1 Vet. App. 190 (1991). The Veteran, thus, should fully cooperate in the requested development of the claims. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from October 2018 to the Present. 2. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for symptoms, diagnosis, and/or treatment of hepatic diseases (e.g. hepatitis C, cirrhosis, and liver cancer) to include but not limited to those of Dr. Phillips dated in 1999, from Dr. Malik at Gastroenterology & Hepatology from 1999 to 2001, from Moses Cone Health System and University of North Carolina School of Medicine from January 2008 to April 2009, and from Emory since September 2014. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 3. Provide the Veteran with a hepatitis C risk factor questionnaire and inform him that he must complete and returned the questionnaire to VA. Notify him that failure to do so may adversely affect his claim for service connection for hepatitis C. 4. Schedule the Veteran for a VA examination by an appropriate clinician who is competent to address the etiology of his hepatitis C infection. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. (a) The examiner should (1) obtain a complete medical history; (2) based on physical examination, interview of the Veteran, and review of the claims file, identify the Veteran's recognized risk factors for hepatis C (e.g. tattoos, piercings, IV drug use, etc.); (3) indicate whether any of the Veteran's risk factor for hepatitis C occurred prior to service, during service, and/or after service. (b) The examiner should opine on as to whether it is as likely as not (50 percent probability or greater) that the Veteran's hepatitis C (i) had onset during service or (ii) is otherwise etiologically related to in-service injury or disease with discussion of the Veteran's medical history, hepatitis C risk factors, and any other relevant evidence, knowledge, or literature. Consider the Veteran's theory that he developed hepatitis C due to (A) air gun inoculators, and/or (B) shared razors. (c) If the Veteran has more than one risk factor, the opinion should explain why one (or more) risk factors is(are) more likely the cause of the Veteran's hepatitis C infection. NOTE (1): An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. NOTE (2): If there is any medical reason to accept or reject the proposition that hepatitis C could be contracted through the Veteran's reported in-service risk factors, this should be noted. The medical opinion should clearly 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). C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.M., 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.