Citation Nr: 1211224 Decision Date: 03/28/12 Archive Date: 04/05/12 DOCKET NO. 06-04 207 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an initial compensable rating for Hepatitis C Virus (HCV). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Appellant-Veteran ATTORNEY FOR THE BOARD Ann L. Kreske, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Navy from August 1987 to August 1991. This appeal to the Board of Veterans' Appeals (Board) is from an October 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which denied a petition to reopen a claim for service connection for Hepatitis. The Veteran filed a timely notice of disagreement (NOD) in response to that decision to initiate an appeal. A subsequent August 2004 RO decision granted service connection for HCV and assigned an initial noncompensable (zero percent) rating effective March 5, 2004, but denied service connection for Hepatitis B Virus (HBV). The Veteran continued to appeal. A November 2007 RO decision during the pendency of his appeal granted an earlier effective date of November 5, 2001, for the award of service connection for HCV. He continued to appeal the rating assigned for his HCV, also this new effective date of November 5, 2001, including on the basis of clear and unmistakable error (CUE) in a prior December 1991 RO decision that earlier had considered and denied his claim for service connection for Hepatitis. See Fenderson v. West, 12 Vet. App. 119 (1999); AB v. Brown, 6 Vet. App. 35 (1993). During his February 2009 hearing at the RO before the undersigned Veterans Law Judge of the Board (Travel Board hearing), the Veteran withdrew his claim for service connection for HBV. See 38 C.F.R. § 20.204 (2011). The Board issued a decision in April 2009 denying of his remaining claims for an initial compensable rating for his HCV and for an earlier effective date for the grant of service connection for this disability - including on the premise of CUE in the prior decision mentioned. He appealed the Board's decision denying these remaining claims to the U. S. Court of Appeals for Veterans Claims (Court/CAVC). In an April 2011 single-judge memorandum decision, the Court affirmed the portion of the Board's April 2009 decision finding there was no CUE in the prior December 1991 rating decision initially considering and denying the claim for hepatitis and, thus, no basis for assigning an effective date earlier than November 5, 2001, for the grant of service connection for the HCV. However, the Court vacated the remaining portion of the Board's decision denying an initial compensable rating for the HCV and remanded this claim for further proceedings consistent with the decision. To comply with the Court's decision - and, specifically, to try and obtain additional medical records cited as relevant but not in the file, the Board in turn is remanding this claim to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND In the April 2009 decision denying this claim, the Board noted the Veteran had been diagnosed with HCV in February 1999. He had complained of right upper quadrant pain, nausea, and vomiting, and records showed he weighed 117 pounds at the time. An August 2000 VA treatment record showed complaints of nausea and vomiting and indicated he weighed 119 pounds. However, the next medical record noted by the Board in its decision was a June 2004 VA compensation examination report noting he had gained weight and now weighed 139 pounds. The Court therefore surmised that, given his complaints in 1999 and 2000 as evidenced by the treatment records cited, and the dramatic change in his weight between 2000 and 2004, it would appear his condition improved during that period of time. But the Board had failed to address this time period in its April 2009 decision, in turn according to the Court casting a shadow over its determination that his condition did not warrant a compensable rating at "any time since November 2001." See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (indicating that where, as here, a Veteran timely appeals a rating initially assigned for a disability, just after establishing his underlying entitlement to service connection for it, VA adjudicators must consider whether to "stage" the rating, meaning assign different ratings at different times, to compensate him for occasions since the effective date of his award when his disability may have been more severe than at others). See also Hart v. Mansfield, 21 Vet. App. 505 (2007) (extending this practice even to increased-rating claims that do not involve initial ratings). The Court thus indicated the Board needs to obtain the medical treatment records the Veteran identified in his May 2002 statement and then reconsider whether a "staged" rating is warranted in this case. This May 2002 Statement in Support of Claim (VA Form 21-4138) referenced VA treatment records maintained at the Dallas-Fort Worth (DFW) VA Medical Center (VAMC) dated from 1996 to 2001. Accordingly, the claim is REMANDED for the following additional development and consideration: 1. Obtain the records mentioned concerning all evaluation or treatment the Veteran received for hepatitis between 1996 and 2001 at the VAMC in Dallas-Fort Worth, Texas. And since these records are in VA's possession as a Federal department or agency, VA will make as many requests as are necessary to obtain these relevant records. VA will end its efforts to obtain these records only if VA concludes they do not exist or that further efforts to obtain them would be futile. Cases in which VA may conclude that no further efforts are required include those in which VA is advised that the requested records do not exist or the custodian does not have them. 38 C.F.R. § 3.159(c)(2). In this eventuality, the Veteran also has to be appropriately notified of the inability to obtain these records, the efforts that were undertaken, how they are maintained, and why no further efforts are required, etc. 38 C.F.R. § 3.159(e)(1). 2. Then readjudicate this claim, including considering whether the rating for the Veteran's HCV should be "staged." If a higher level of compensation is not granted to his satisfaction, send him and his representative another supplemental statement of the case and allow them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). _________________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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) (2011).