Citation Nr: 1241925	
Decision Date: 12/07/12    Archive Date: 12/13/12

DOCKET NO.  07-12 240	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New York, New York


THE ISSUES

1.  Entitlement to service connection for a left shoulder disorder.

2.  Entitlement to an initial compensable evaluation for bilateral hearing loss.

3.  Entitlement to an initial compensable evaluation for allergic rhinitis.

4.  Entitlement to an initial compensable evaluation prior to September 16, 2010 and in excess of 10 percent from September 16, 2010 for hepatitis C.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

R.N. Poulson, Counsel

INTRODUCTION

The Veteran served on active duty from July 1980 to December 2004.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York, which, in pertinent part, denied service connection for a left shoulder disorder and granted service connection for bilateral hearing loss, allergic rhinitis, and hepatitis C and assigned noncompensable evaluations, effective January 1, 2005.  

In June 2010, the Board remanded the case for additional development, to include scheduling VA examinations.  Following completion of the requested actions, as well as a continued denial of the Veteran's claims, the appeal was returned to the Board for further appellate review.

In March 2012, the Appeals Management Center (AMC) increased the evaluation for hepatitis C to 10 percent, effective September 16, 2010.  As this rating does not constitute a full grant of all benefits possible, and as the Veteran has not withdrawn her claim, the claim is still active.  See AB v. Brown, 6 Vet. App. 35, 38 (1993).

In April and June 2012, the Veteran submitted additional evidence in the form of lay statements and medical records along with a waiver of consideration of such evidence by the agency of original jurisdiction (AOJ). 

(The issues of entitlement to service connection for a left shoulder disorder and entitlement to an increased rating for hepatitis C are addressed in the remand that follows the decision below.)



FINDINGS OF FACT

1.  The Veteran's hearing loss has been manifested by hearing impairment corresponding to auditory acuity no worse than Level I in the right ear and Level I in the left ear.

2.  The Veteran's allergic rhinitis is not manifested by nasal polyps or by obstruction greater than 50 percent on both sides or by complete obstruction on one side.


CONCLUSIONS OF LAW

1.  The criteria for an initial compensable evaluation for service-connected bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 4.1 - 4.7, 4.85, Diagnostic Code (DC) 6100 (2012).

2.  The criteria for an initial compensable evaluation for service-connected allergic rhinitis have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 4.1 - 4.7, 4.97, DC 6522 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). 

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. 
§ 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  The VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

For initial rating claims, where, as here, service connection has been granted and the initial rating and effective date have been assigned, the claim of service connection has been more than substantiated and proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled.  Furthermore, once a claim for service connection has been substantiated, the filing of a notice of disagreement with the rating of the disability does not trigger additional § 5103(a) notice.  See Dingess v. Nicholson, 19 Vet. App. 473, 490-491 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). 

Moreover, the Board finds that VA has complied with its duty to assist the Veteran in the development of the rating claims decided herein.  The Veteran's service treatment records (STRs) have been obtained and associated with the claims file, as have records of post-service treatment the Veteran has received from VA, federal, and private treatment providers.  In connection with her claims, the Veteran underwent VA examination in April 2005, April 2009, May 2009, and September 2010; reports of those examinations are of record.  In that connection, the Board notes that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  As noted below, the Board finds that the VA examinations obtained in this case are adequate, as they are predicated on consideration of all of the pertinent evidence of record, to include the statements of the Veteran and her representative, and document that the examiners conducted thorough examination of the Veteran and consideration of the evidence.  An explanation of the opinions offered by each examiner was provided.  

In addition, the Veteran has further been given the opportunity to submit evidence, and she has provided written argument in support of her claims.  The Veteran has not identified, and the record does not indicate, existing records pertinent to the claims decided herein that need to be obtained.  Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159.

II.  Ratings

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities.  Ratings are based on the average impairment of earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.97.

The Court has indicated that a distinction must be made between a veteran's dissatisfaction with original ratings and dissatisfaction with determinations on later filed claims for increased ratings.  Fenderson v. West, 12 Vet. App. 119, 125-26 (1999).  Thus, the Board will evaluate the issues as claims for higher evaluations of the original awards.  When an original rating is appealed, consideration must be given as to whether an increase or decrease is warranted at any time since the award of service connection, a practice known as "staged" ratings.  Id.  

A.  Bilateral Hearing Loss

In May 2005, the RO granted service connection for bilateral hearing loss and assigned a noncompensable evaluation, effective January 1, 2005.  

Hearing impairment is evaluated under 38 C.F.R. § 4.85, and is determined by comparing the results of controlled speech discrimination tests with the average hearing threshold level.  The hearing threshold levels are measured by pure tone audiometry tests in the frequencies of 1,000, 2,000, 3,000 and 4,000 Hertz (cycles per second).  The Rating Schedule allows for such audiometric test results to be translated into a numeric designation, which range from Level I for essentially normal acuity to Level XI for profound deafness.  Based on the level of hearing impairment, a percentage evaluation is assigned to determine the level of compensation, ranging from noncompensable to 100 percent.  Disability ratings for hearing impairment are derived by the mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345 (1992).

An April 2005 VA audiological examination report shows that the Veteran reported difficulty hearing "low tones."  Specifically, she had trouble hearing on the telephone.  Pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
15
45
40
35
LEFT
10
15
45
40
35

Speech audiometry revealed speech recognition ability of 94 percent in both the right and left ear.  The diagnosis was normal hearing through 1 kHz "sharply sloping to an essential mild sensorineural hearing loss through 4 kHz" on the right, and normal hearing through 1 kHz "sharply sloping to a moderate to mild sensorineural hearing loss through 4 kHz" on the left.  

A January 2008 treatment record from Keller Army Community Hospital (Keller) shows that an audiogram was performed, but it depicts the pure tone thresholds exhibited by the Veteran on a graph and not interpreted in decibels for each frequency depicted in the audiogram.  Word recognition scores were noted to be "good" bilaterally.  The diagnosis was moderate rising to mild sensorineural hearing loss from 1.5 kHz to 8 kHz in both ears.

VA post-service treatment records show that the Veteran was fitted for hearing aids in April 2008.

An April 2009 VA audiological examination report shows that the Veteran complained of a progressive hearing problem.  She had the most difficulty when people spoke to her from across the room and when watching television.  She wore hearing aids intermittently as they produced feedback.  The examiner advised the Veteran to have the hearing aids reprogrammed.  Pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
20
50
50
50
LEFT
20
20
50
55
55

Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 100 percent in the left ear.  The diagnosis was a moderate bilateral high frequency sensorineural hearing loss.  The examiner noted that the Veteran's hearing loss had a significant effect on her occupation, but no effect on her usual daily activities.

A May 2009 VA treatment record shows that the Veteran was given a remote control that transmits audio signals wirelessly to her hearing aids.  A follow-up record dated later that month shows that the Veteran was hearing "good."  

As instructed in the June 2010 Remand, the AMC obtained an interpretation of the January 2008 audiogram from Keller.  A VA board certified, licensed audiologist reviewed the audiogram in January 2012 and provided the following interpretation of the graph:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
15
50
50
45
LEFT
10
10
50
55
45

The audiologist diagnosed a mid-frequency moderate sensorineural type hearing loss in the 1500 to 4000 Hz frequency range.  He noted that speech recognition was 100 percent in both ears.  However, he stated that the speech testing for this test cannot be used for rating purposes because the audiogram contains no evidence that the speech recognition scores were obtained with a recorded Maryland CNC word list.

In a correspondence dated in April 2012, the Veteran described the functional effects of her service-connected bilateral hearing loss.  Specifically, she is "unable to completely hear a person whose voice intonations are at a certain pitch, i.e., low-pitched."  She stated that people with high-pitched voices "can irritate me."  The Veteran indicated that it was easier to put people on speaker phone rather than use a mobile or landline phone.  She further stated that her hearing aids provided "no real relief" and that she has been issued a remote control that transmits audio signals wirelessly to the hearing aids.  The Veteran indicated that the remote control "supports me and minimizes disruption to others because of the high volume/loudness when not using it, but my medical issue has not been satisfactorily resolved with hearing aids and the remote device."

The April 2005 findings show that Table VI provides for a numeral of Level I for the Veteran's right ear and Level I for her left ear.  Applying those results to 38 C.F.R. § 4.85, Table VII, a 0 percent evaluation is derived.  Accordingly, the April 2005 audiometric results do not serve as a basis for a compensable evaluation.

The Board finds that the January 2008 report is of no probative value.  This is so because, as noted by the VA audiologist in January 2012, there is no indication that the results were Maryland CNC speech discrimination tests.  In this regard, the Board notes that an examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test.  38 C.F.R. § 4.85(a)(2012).

The April 2009 findings show that Table VI provides for a numeral of Level I for the Veteran's right ear and Level I for her left ear.  Applying those results to 38 C.F.R. § 4.85, Table VII, a 0 percent evaluation is derived.  

None of the three audiograms reflects an exceptional hearing impairment pattern.  See 38 C.F.R. § 4.86.  Accordingly, the April 2005, January 2008, and April 2009 audiometric results do not serve as a basis for a compensable evaluation for the Veteran's service-connected bilateral hearing loss.

As this discussion illustrates, the Veteran's level of hearing loss impairment has been relatively stable throughout the appeal period.  Therefore, any application of staged ratings (i.e., different percentage ratings for different periods of time) is inapplicable.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).

Furthermore, in Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007), the United States Court of Appeals for Veterans Claims (Court) held that an audiological evaluation should consider the effect of the Veteran's hearing loss disability on her occupational functioning and daily activities.  However, the Court also noted that, even if an audiologist's description of the functional effects of a veteran's hearing loss disability was somehow defective, the veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination.  

Here, the April 2009 examiner recorded the Veteran's report of communicative difficulties in various daily environments and noted significant effects on her occupation.  Thus, the examiner elicited information from the Veteran concerning the functional effects of her hearing loss.  Furthermore, the Board notes that the Veteran claims that a compensable rating for her bilateral hearing loss is warranted, not that the VA examination reports are defective.  See Martinak, 21 Vet. App. at 455.  

B.  Allergic Rhinitis

In May 2005, the RO granted service connection for allergic rhinitis and assigned a noncompensable evaluation, effective January 1, 2005.  

Allergic rhinitis is evaluated under the criteria set forth in DC 6522.  A 30 percent evaluation is assigned when polyps are shown.  Without polyps, but with greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side, a 10 percent evaluation is assigned.  38 C.F.R. § 4.97, DC 6522.  The Schedule provides that a noncompensable evaluation is assignable when the requirements for a compensable evaluation are not met, even when a 0 percent evaluation is not specifically listed under the applicable Code.  38 C.F.R. § 4.31.

An April 2005 VA examination report shows that the Veteran reported chronic nasal obstruction, clear rhinorrhea, mild maxillary sinus pressure, and ear pressure.  Specifically, she complained of interference with breathing through her nose.  These symptoms were worse in the spring.  Treatment consisted of Flonase, Claritin, and allergy shots.  A physical examination revealed right nasoseptal deflection.  The diagnosis was allergic rhinitis.

A January 2008 VA treatment record shows that the Veteran reported congestion, allergies, and chronic sinusitis.  The nose was clear upon physical examination.  The diagnosis was allergic rhinitis.
 
A September 2010 VA examination report shows that the Veteran reported "on and off" nasal congestion, difficulty breathing, and perennial allergies for many years.  Current symptoms included nasal congestion, excess mucous, and an itchy nose.  She was not taking any medication, although she had used nasal sprays in the past.  She was unemployed at the time.  A physical examination revealed pale pink mucosa, narrow nasal passageways, and minimal watery discharge.  There were no signs of nasal obstruction, no polyps, and no septal deviation.  The diagnosis was allergic rhinitis.  The examiner noted no effects on the Veteran's usual daily activities and no significant effects on her usual occupation.
 
In a correspondence dated in April 2012, the Veteran stated that she received allergy shorts from January 1981 to December 1982 while stationed at Fort Campbell, Kentucky, and from October 1996 to December 1999 while stationed in Pittsburgh, Pennsylvania.  She maintains that she was prescribed inhalers by clinicians at other duty stations.  She was reportedly diagnosed with chronic rhinitis and "issues with my sinuses" by a private provider in 2002 while stationed in Atlanta, Georgia.  The Veteran contends that she has "never had clear breathing in both nostrils" despite using sinus rinses and over-the-counter medication.  

No treatment record, either private or VA, indicates the presence of polyps at any time.  The September 2010 VA examiner did not find any polyps.  Moreover, no chronic obstruction of either nasal passage is found at any time.  The Veteran does report congestion and nasal symptoms, and the April 2005 VA examiner noted a deviated right septum, but no provider documents obstruction of the passages.  In fact, the September 2010 examiner specifically found no obstruction.

Importantly, the Veteran has never alleged the presence of the symptoms and findings required for a compensable evaluation for rhinitis.  Accordingly, and based on the totality of this evidence, the Board finds that the preponderance of the evidence is against the claim; there is no doubt to be resolved.  An initial compensable rating for service-connected rhinitis is not warranted.

C.  Additional Considerations

The Board has considered the Veteran's and her representative's contentions with regard to the claims for higher ratings for hearing loss and rhinitis.  While the Board does not doubt the sincerity of the Veteran's belief that her disabilities are more severely disabling than reflected in the ratings assigned, as a lay person without the appropriate medical training or expertise, she is not competent to address the medical findings used to evaluate disability in the context of the rating criteria.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  The statements from the Veteran clearly articulate the symptoms she experiences; however, even with consideration of those problems, higher ratings than those assigned herein are not warranted for the Veteran's service-connected bilateral hearing loss or allergic rhinitis under the pertinent rating criteria.

The level of impairment in the disabilities rated herein has been relatively stable throughout the appeals period, and has never been worse than what is warranted for a 0 percent evaluation.  Therefore, the application of staged ratings is not warranted.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).
 
The preponderance of the evidence is against the claims; there is no doubt to be resolved; and compensable initial evaluations are not warranted.

Consideration has also been given regarding whether the schedular evaluations are inadequate, requiring VA to refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extra-schedular evaluation where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards.  38 C.F.R. § 3.321(b)(1).  An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization.  Id. at 115-116.  When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating, otherwise, the schedular evaluation is adequate, and referral is not required.  Id. at 116.

The above determination is based upon consideration of applicable rating provisions.  There is no showing that the Veteran's service-connected disabilities addressed above have reflected so exceptional or unusual a disability picture as to warrant consideration on an extra-schedular basis.   See 38 C.F.R. § 3.321(b)(1) (2012).   In that connection, the Board finds that the symptoms of the Veteran's disabilities have been accurately reflected by the schedular criteria.  The Board has considered the Veteran's contentions regarding the effects her hearing loss and allergic rhinitis have on her daily life.  The Veteran did not provide evidence of an impact on her employment.  Because the schedule contemplates the Veteran's symptoms, a referral is not warranted.  See Thun, 22 Vet. App. at 115-16.



ORDER

Entitlement to an initial compensable rating for bilateral hearing loss is denied.

Entitlement to an initial compensable rating for allergic rhinitis is denied.


REMAND

The Board finds that additional development is needed to adjudicate the remaining issues on appeal.

The Veteran contends that she injured her left shoulder during service.  STRs show that the Veteran sought treatment in October 2003 for intermittent left shoulder pain of two weeks' duration.  She noticed the pain when swimming and doing overhead work.  She reportedly noticed left shoulder pain one year earlier while doing push-ups.  Upon physical examination, there was tenderness on palpation at the lateral aspect.  Pain was elicited on active motion when arms were above and behind the Veteran's head.  Range-of-motion testing was normal.  The diagnosis was joint pain, left shoulder.  

The Veteran complained of left shoulder pain again in December 2003.  X-rays showed left shoulder arthrosis at the acromioclavicular joint.  The clinician administered an injection in the joint.  The clinician wrote "if no improvement with injection, will check [illegible] to rule out scap."

An April 2004 treatment record from Sentara Emergency Department shows that the Veteran was treated for a contusion of the upper extremity.  It appears that she was diagnosed with a sprain.  The Veteran was prescribed Vicodin for pain.

Post-service VA treatment records dated in December 2007 show that the Veteran was treated for left shoulder pain after falling in the shower.  She was unable to move the shoulder upon physical examination.  X-rays revealed a fracture involving the humerus head extending towards the proximal humeral metaphyses, and a fracture at the base of greater tuberosity with minimal displacement.  Her left arm was put in a sling and she was prescribed pain medication.  

A follow-up visit three days later shows that she denied a history of prior left shoulder trauma.  Physical examination revealed diffuse swelling of the proximal humerus.  There was no palpable defect superior to the humeral head.  There was tenderness to palpation diffusely throughout the shoulder.  The Veteran was unable to perform active range-of-motion testing secondary to pain.  Passive range of motion was limited by pain.  X-rays showed a reduced glenohumeral joint and a fracture involving the surgical neck and greater tuberosity.   The greater tuberosity piece was gapped inferiorly approximately 4 mm with superior migration approximately 5 mm.  The assessment was "left PH fracture with minimal displacement/angulation about surgical neck approximately 5 mm migration about GT piece."  Physical therapy, and later acupuncture, were prescribed.

A February 2008 physical therapy note shows that the Veteran's pain had been moderately controlled until a fall several days earlier.  

In September 2008, the Veteran reported that the pain and limited range of motion in her left shoulder had improved with acupuncture.   She described her left shoulder as "very good" except abduction at 90 degrees with weight.  The assessment was "status post left proximal humerus fracture sustained in December 2007, completed 18 sessions of acupuncture and pain was almost resolved with full range of motion."

The Veteran received additional acupuncture treatments for left shoulder pain between June and  September 2010.

In a correspondence dated in April 2012, the Veteran stated that she was involved in a motorcycle accident in April 2004.  She maintains that she flipped over the handlebars and landed on the pavement on her left shoulder.  She was initially treated for her injuries at Sentara Hospital because it was the closest emergency room.  She further stated that that accident weakened her left shoulder. 

As the evidence of record shows a current left shoulder diagnosis, an in-service injury, and assertions of continuity of left shoulder pain since service, remand is required for a medical opinion regarding any nexus to service.  See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McClendon v. Nicholson, 20 Vet. App. 79 (2006). 

As for her service-connected hepatitis, an April 2005 VA general medical examination shows that the Veteran reported her weight as stable.  Her appetite was "okay."  In May 2005, the RO granted service connection for hepatitis C (0 percent, effective January 1, 2005).  

An April 2009 liver biopsy was performed due to the presence of a liver lesion.  A May 2009 VA treatment record indicates that the biopsy showed stage II liver disease.

A May 2009 VA liver examination report shows that the Veteran denied any flare-ups or fatigue related to her hepatitis C.  She reported a slight transient elevation on a liver function test while taking a multivitamin, but indicated that her liver enzymes returned to normal after she discontinued the multivitamin.  She also reported that the April 2009 liver biopsy was consistent with cirrhosis.  The Veteran denied anorexia, malaise, abdominal pain, and weight loss.  She also denied incapacitating episodes.  A physical examination revealed no signs of chronic liver disease.  Liver size was normal.  Laboratory results showed slight minimal abnormality in liver function.  Specifically, serum glutamic oxaloacetic transaminase (SGOT) was 46 and serum glutamate pyruvate transaminase (SGPT) was 55.  The diagnosis was chronic hepatitis C infection.

A May 2009 VA hemic examination report shows that the Veteran reported a history of anemia that was diagnosed at the time of her ulcerative colitis in 1991.  Her anemia had stabilized after she started taking iron supplements.  She denied fatigue or weakness.  The diagnosis was "remote history of anemia currently not anemic on iron supplement tablets."

In its January 2009 Remand, the Board instructed the agency of original jurisdiction (AOJ) to schedule the Veteran for a VA examination in connection with this claim in order to determine whether the Veteran had cirrhosis of the liver as a sequelae of her service-connected hepatitis C.

An August 2010 treatment record indicates that the Veteran complained of fatigue.  The clinician noted that the May 2009 biopsy showed "2/4 piecemeal necrosis; no confluent necrosis; 2/4 lobular necrosis; 2/4 portal inflammation (moderate); 2/5 fibrous septae."

The Veteran submitted to a VA liver examination in September 2010.  She complained of fatigue and malaise.  She denied weight loss and anorexia.  She reported no episodes of abdominal pain, distention, nausea, or vomiting in the previous 12 months.  She was unemployed.  An abdominal examination was normal.  The examiner noted that there were no extra-hepatic manifestations of the Veteran's liver disease.  He found no evidence of malnutrition.  Lab work revealed elevated SGOT and SPT levels.  The examiner reviewed the claims file, to include the results of the April 2009 liver biopsy.  He noted that a March 2010 CT ultrasound of the liver revealed diffuse fatty infiltration of the liver and that the liver was at the upper limits of normal size.  The examiner also noted that this condition had no effect on the Veteran's daily activities and no significant effects on her usual occupation.  Finally, he concluded that there was no evidence of cirrhosis of the liver "as evidenced by liver biopsy and hepatic ultrasound."

In March 2012, the AMC increased the hepatitis C evaluation to 10 percent, effective September 16, 2010.

Correspondence dated in April 2012 indicates that the Veteran experiences chronic fatigue as a side effect of hepatitis C.  She stated that "[b]y the late afternoon, I've been inclined to take naps in order to restore my energy."  She wrote "follow-up visits to my GI doctor should indicate that my complaints concerning fatigue are consistent with every visit."  The Veteran further stated that anorexia "does not belong in my diagnosis nor should it."  Finally, the Veteran indicated that she follows dietary restrictions in order to minimize any ill effects to her liver.  

Given that two years have passed since the most recent VA compensation examination as to the hepatitis C and that the symptoms may have worsened, the Board finds that the Veteran should be afforded another VA compensation examination to assess the current degree of disability of her service-connected hepatitis C.  See Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997).

It appears that the Veteran continues to receive regular treatment for her hepatitis C.  However, the most recent medical records in the claims file are dated in September 2010.  Thus, on remand, updated treatment records should be obtained. 

Accordingly, the case is REMANDED for the following action:

1.  Contact the Veteran and request that she identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated her for her service-connected hepatitis C.  Obtain copies of pertinent treatment records identified by the Veteran that have not been previously secured and associate them with the claims folder.  This should include records from the New York Harbor Healthcare System. 

2.  Schedule the Veteran for an examination by a physician who has expertise in liver disease.  The claims folder, including a copy of this remand, must be made available to and reviewed by the examiner.  All indicated studies should be performed.  All pertinent pathology should be discussed in the examination report.

The examiner should discuss whether the Veteran's service-connected hepatitis C is manifested by fatigue, malaise, anorexia, hepatomegaly, nausea, vomiting, arthralgia, or right upper quadrant pain.  As to any symptoms that the examiner determines are related to the Veteran's hepatitis C, the examiner should state whether the Veteran experiences those symptoms on an intermittent, daily, or near-constant basis.  

If the examiner finds that the Veteran does experience fatigue, malaise, or anorexia, or any manifestations thereof, but that those symptoms are attributable to another diagnosed condition or disability, the examiner should so state with specificity and explanation.

The examiner should address whether dietary restriction or continuous medication is required.  

The examiner should also specify whether the Veteran has experienced weight loss (and if so, state whether it is minor or substantial weight loss), other indications of malnutrition, and/or hepatomegaly related to hepatitis C.  

The examiner should determine whether the Veteran has had incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) severe enough to require bed rest, and if so, the total duration of such incapacitating episodes in the past 12 months.  See 38 C.F.R. §§ 4.112, 4.114 (Diagnostic Code 7354).  

In answering these questions, the examiner should address all relevant post-service treatment records, to include the April 2009 liver biopsy results, the May 2009 VA treatment record, the May 2009 VA examination report, and the September 2010 VA examination report, as well as the Veteran's April 2012 statement.  The rationale for all opinions expressed by the VA examiner should be provided.  

3.  Schedule the Veteran for a VA orthopedic examination by an appropriate medical professional to determine the nature and etiology of any current left shoulder disability.  All indicated tests and studies should be performed.  The claims folder, including a copy of this remand, must be sent to the examiner for review in conjunction with the examination.  

For each left shoulder disability diagnosed on examination, the examiner should opine as to whether it is at least as likely as not, i.e., a 50 percent probability or greater, that such disability had its onset during the Veteran's active duty, or is otherwise related to her active service (including whether any diagnosed left shoulder disability is consistent with the Veteran's reports of left shoulder pain in service).  

In answering this question, the examiner should address the pertinent in-service and post-service left shoulder findings, to include the April 2004 and December 2007 VA treatment records.  The examiner should set forth the medical reasons for accepting or rejecting the statements relating to continuity of symptoms since the Veteran's December 2004 discharge.

A full and complete rationale for all opinions expressed must be provided.  If the examiner determines that he/she cannot provide an opinion on the issue at hand without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined.  In particular, he/she should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion.  See Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). 

4.  Then, readjudicate the left shoulder and hepatitis C claims.  If any benefit sought remains denied, issue a supplemental statement of the case and provide the Veteran and her representative the requisite period of time to respond.  The case should then be returned to the Board for further appellate review, if otherwise in order.  No action is required of the appellant unless she is notified.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This case must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board 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. 2012).



_________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs