Citation Nr: 0704238 Decision Date: 02/09/07 Archive Date: 02/22/07 DOCKET NO. 02-00 717 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: Lisa A. Lee, Attorney ATTORNEY FOR THE BOARD Michael J. Skaltsounis, Counsel INTRODUCTION The veteran had active service from December 1962 to June 1963. Initially, the Board of Veterans' Appeals (Board) notes that in September 2004, the Board denied the issue of entitlement to service connection for hepatitis C. Thereafter, the veteran appealed the Board's September 2004 decision to the United States Court of Appeals for Veterans Claims (Court), which, pursuant to a Joint Motion to Vacate and Remand filed in August 2005, vacated the Board's decision. For the reasons stated more fully below, the Board has concluded that further development is now necessary in this matter. REMAND In examining the Joint Motion to Vacate and Remand, the Board notes that the parties to the Joint Motion concluded that the Board's September 2004 decision was deficient in several respects. In addition, the veteran's representative has indicated in January 2007 written argument in support of the claim that she wants the claim on appeal remanded for the RO's review of this argument and for compliance with the August 2005 Joint Motion to Vacate and Remand. With respect to the deficiencies noted by the parties to the Joint Motion, after indicating that the Board's decision failed to adequately address the benefit-of-the-doubt doctrine, the parties further agreed that VA violated its duty to assist the veteran when it failed to request known medical records for which the veteran had provided a signed consent form, and when it did not provide an examination adequate for rating purposes. More specifically, the parties noted that records were potentially in the possession of the Naval Station San Diego Brig that would substantiate that the veteran received a blood transfusion at this facility, and that there was no indication that VA had ever requested these records. In her January 2007 written argument in support of her claim, the veteran's representative further asserted that the records request should specifically include brig personnel records from May 3, 1963 to May 19, 1963; brig hearing records (i.e. non-judicial punishment (NJP) hearings for breaking the Brig's plate glass and wire mesh window); any daily reports of incidents that might have been recorded by the San Diego Naval Brig; Tapes and/or transcripts of any hearings/NJPs; medical records, including, but not limited to nurses'/doctors' notes, progress notes, blood bank dispensary notes, Brig sick bay records, from the San Diego Brig's Medical Dispensary (an entity separate to the Balboa Hospital/San Diego Naval Hospital); and any and all records from the San Diego Brig for the period of May 3, 1963 to May 19, 1963. The parties also found that a March 2003 VA etiological examination was deficient because it was conducted before VA requested the above-noted records and did not address the favorable medical nexus opinions of record at the time of the examination. It was also found to be deficient because certain diagnostic testing had not been completed as requested by the Board in December 2002, that the examiner did not review all of the veteran's history of risk factors associated with hepatitis, and the examiner did not specifically render an opinion as to whether it was "at least as likely as not" that the veteran contracted hepatitis during his military service. Finally, the parties to the Joint Motion determined that further notice was also necessary under the Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2005) (VCAA). As a result of the nexus opinions that had been submitted on behalf of the veteran, the parties decided that appellant was now entitled to be notified of the information and evidence not previously submitted that was necessary to substantiate the claim, and that he should have been specifically advised that the nexus opinions submitted thus far were insufficient in the eyes of VA to substantiate his claim. Accordingly, the case is REMANDED to the regional office (RO) via the Appeals Management Center (AMC), in Washington, DC for the following action: 1. Provide the appellant with a new VCAA notice letter as to his claim, noting the evidence necessary to substantiate the claim, that the nexus opinions submitted by the veteran thus far were insufficient to substantiate the claim, and the respective obligations of VA and the veteran in obtaining such evidence. The appellant should also be asked to provide any evidence in his possession that pertains to his claims and advised of the bases for assigning ratings and effective dates. 2. Appropriate steps should be taken to obtain any records for the veteran in the possession of the Naval Station San Diego Brig. Efforts to obtain these records should continue unless it is concluded that they do not exist or that further efforts to obtain them would be futile. See 38 C.F.R. § 3.159(c)(2) (2006). The records request should specifically include brig personnel records from May 3, 1963 to May 19, 1963; brig hearing records (i.e. non-judicial punishment (NJP) hearings for breaking the Brig's plate glass and wire mesh window); any daily reports of incidents that might have been recorded by the San Diego Naval Brig; Tapes and/or transcripts of any hearings/NJPs; medical records, including, but not limited to nurses'/doctors' notes, progress notes, blood bank dispensary notes, Brig sick bay records, from the San Diego Brig's Medical Dispensary (an entity separate to the Balboa Hospital/San Diego Naval Hospital); and any and all records from the San Diego Brig for the period of May 3, 1963 to May 19, 1963. If no records can be obtained, the RO must provide notice to the appellant through his attorney of the inability to obtain the records. 3. After the records in item number 1 are obtained, it is determined that they do not exist, or it is determined that further efforts to obtain them would be futile, the veteran should be afforded with a new examination to determine the etiology of his hepatitis C. All indicated studies should be performed, to include enzyme immunoassay (EIA) and recombinant immuoblot assay (RIBA-2) testing. The claims file should be made available to the examiner for review in connection with the examination. If hepatitis C is found to be present, the examiner should thoroughly review the veteran's history of risk factors associated with hepatitis (prior to, during, and after service), such as shared razors or air gun inoculations during service, and render an opinion as to whether it is at least as likely as not that he contracted hepatitis during his service. The examiner should provide a complete rationale with respect to his or her opinion, specifically addressing all nexus opinions already of record. 4. After pursuing any additional development deemed appropriate, the claim for service connection for hepatitis C should be readjudicated. If any benefit sought on appeal remains denied, the appellant and his representative should be provided a supplemental statement of the case and given the opportunity to respond. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005). _________________________________________________ C. W. SYMANSKI Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2006).