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BVA- The REMAND

From: Posted by NOD
Category: General Info
Date: 09/11/08

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Citation Nr: 0600007 Decision Date: 01/03/06 Archive Date: 01/19/06 DOCKET NO. 03-08 395 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States INTRODUCTION The veteran served on active military duty from August 1967 to May 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2002 rating decision by the Chicago, Illinois, Regional Office (RO) of the Department of Veterans Affairs (VA) which denied the veteran's claim of entitlement to service connection for hepatitis C. The appeal is remanded to the RO via the Appeals Management Center, in Washington, DC. REMAND The veteran seeks service connection for hepatitis C. He asserts that his current disability of hepatitis C is related to an inservice diagnosis of viral hepatitis. The veteran's service medical records reflect that in February 1971, a viral hepatitis was diagnosed and he was admitted to the medical clinic for treatment. The veteran was discharged from treatment on March 4, 1971. In an April 1971 report of medical history, a physician noted the 1971 hepatitis diagnosis and found there were "no sequelae." Subsequent to service discharge, VA outpatient examination reports from April 1984 through November 2001 note diagnoses of hepatitis C. A June 2002 VA examination confirmed the hepatitis C diagnosis. The VA examiner reviewed the veteran's claim file and obtained his medical history. The veteran noted a "history of intravenous drug use and last used 15 months ago [and] a history of unprotected sex with prostitutes while in the service and history of tattoos while in the service." The veteran denied having any blood transfusions. The examiner noted that according to service medical records, the veteran contracted hepatitis in 1971. The examiner reported that the veteran was treated for his symptoms and that his symptoms were entirely resolved. The examiner opined that based on a review of the service medical records and the veteran's statements as they related to the evidence in the service medical records, the inservice hepatitis was likely due to fecal-oral contamination and was more consistent with hepatitis A than with hepatitis C. Further, the examiner opined that [t]he ability to diagnose hepatitis C was not available in 1971, but it is not at least as likely as not that the hepatitis that was diagnosed in 1971 in the service is the same hepatitis that he has today. It is at least as likely as not that the patient's present hepatitis C is related to previous high-risk behavior including sex with prostitutes, tattoos, and most importantly history of intravenous drug use. Therefore, it is at least as likely as not that his hepatitis C is due to IV drug use. In light of the above, it is the Board's determination that the June 2002 VA examination report is insufficient upon which to base an appellate decision. The opinion is confusing regarding whether the veteran's hepatitis is due to inservice or post-service factors. First, the VA examiner notes that the veteran has an inservice history of sex with prostitutes and tattoos, and also a history of intravenous drug use. Next, the examiner concludes that the veteran's hepatitis C is related to unprotected sex with prostitutes, tattoos, and intravenous drug use. Last, the examiner opines that the hepatitis C is related to intravenous drug use. Thus, it isn't clear which, if any, of the risk factors the current hepatitis C is related to, whether those risk factors occurred inservice or post-service, and therefore, whether the veteran's current hepatitis C is related to inservice or post-service factors. A service connection claim requires a nexus between the current disability and the inservice disease, thus, the nexus opinion must be clarified so that the Board may determine if service connection is warranted. Accordingly, this matter is remanded for the following actions: 1. The claims file should be returned to the VA physician who examined the veteran in June 2002. The examiner should review the June 2002 opinion and clarify whether the veteran's current hepatitis C is related to service factors or non-service factors, as indicated above. If that examiner is not available, then a similarly situated examiner should offer an opinion. If there is need for additional examination to answer the question, then the veteran must be afforded a new VA examination to ascertain the etiology of his hepatitis C. The claims folder must be provided to and reviewed by the examiner. All tests or studies necessary to make this determination should be ordered. Thereafter, an opinion should be provided as to whether it is at least as likely as not that the veteran's current hepatitis C is related to military service. The physician must set forth the complete rationale underlying any conclusions drawn regarding the opinion expressed, to include, as appropriate, citation to specific evidence in the record. The report prepared should be typed. 2. The RO must notify the veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2005). In the event that the veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 3. The examination report must be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AMC must implement corrective procedures. 4. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the veteran and his representative. After the veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals This VET is going to be suffering the mailbox disease for quite a while. Did you see the reference to AMC? That stands for Appeals Management Center. We who know refer to it as Limbo. It's the black hole for claims. The claim will escape eventually and make its way to the VARO from whence it arose. And several years from now, if the VET loses again @ the RO level, we will see his not so smiling face back here in DC in front of VLJ Joy A. McDonald, assuming she still is employed at the BVA. What I find interesting is the tortured phrases some maniac from the OGC(Office of General Counsel) dreamed up. The OGC is the Darth Vader of the VA. They are strong in the Force and know all the ways VETS will cheat in order to get their claims granted. If your claim sets some kind of precedent in the eyes of the BVA, the OGC will be making the decision . Now, roll this on your tongue after a six-pack of Adult Beverage: it is not at least as likely as not that the hepatitis that was diagnosed in 1971 in the service is the same hepatitis that he has today. It is at least as likely as not that the patient's present hepatitis C is related to previous high-risk behavior including sex with prostitutes, tattoos, and most importantly history of intravenous drug use. Therefore, it is at least as likely as not that his hepatitis C is due to IV drug use. You need a flow chart to get all the pluses and minuses added up to figure if he's ahead or losing. The VET really needs a nexus. The VSO has kicked him out of the boat in the deep end and he can't swim. Again, the good news is that we're reading about it. That means he appealed and can fight this battle again in the future with a MFR. Let this be a lesson also that the VA has an obsession with regards to adjudication. If there is anything wrong with the claim, they will REMAND it in a heartbeat --- again and again and again. Sometimes you die waiting. When that happens, they don't have to pay. Anybody starting to see a pattern here?

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BVA- The REMAND

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