Citation Nr: 1307629 Decision Date: 03/07/13 Archive Date: 03/11/13 DOCKET NO. 12-16 433 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an increased rating for hepatitis C, currently evaluated at 20 percent disabling. 2. Entitlement to a total disability rating based on individual employability due to a service-connected disability (TDIU). ATTORNEY FOR THE BOARD M. Sopko, Associate Counsel INTRODUCTION The Veteran had active service from March 1971 to April 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. A review of the Virtual VA paperless claims processing system revealed additional treatment records dated June 2010 to March 2012, which are pertinent to the present appeal. The Agency of Original Jurisdiction reviewed these records in an April 2012 supplemental statement of the case (SSOC). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Board finds that additional development is required before the Veteran's appeal can be adjudicated. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c),(d) (2012). The Veteran seeks an increased rating for his service-connected hepatitis C, which is currently evaluated at 20 percent. The Veteran filed his claim in September 2009. The RO increased his evaluation from 0 percent to 20 percent disabling effective September 11, 2009. The Veteran has appealed this rating. The RO based its rating increase primarily on the Veteran's October 2009 VA examination. Subsequent to this examination, the Veteran submitted a statement in August 2010 noting that his "health has progressively become so debilitating that it is now reflected in [his] inability to work consistently." The record also reflects that the Veteran's employer fired him in August 2009 after 18 years of employment. See Veteran's October 2009 statement. Moreover, the Veteran's medical records from June 2010 to March 2012 suggest that the Veteran has been unemployed for at least part of that timeframe. Additionally, in March 2012, the Veteran was diagnosed with a liver disease that was attributed in part to his hepatitis C. See the March 2012 VA outpatient treatment record. Accordingly, as the evidence suggests a worsening of the Veteran's hepatitis C, remand for a current VA examination is required. Any recent VA treatment records should also be obtained. This evidence also raises the issue of entitlement to a TDIU. The United States Court of Appeals for Veterans Claims has held that there is no freestanding claim for a TDIU. See Rice v. Shinseki, 22 Vet. App. 447, 451 (2009). The matter is a component of the appeal for a higher increased rating regarding the service-connected hepatitis C. Id. at 452-53. As such, it is necessary for the Board to remand the issue. On remand, the RO will have the opportunity to include the issue in a new notice letter, ask the prospective VA examiner to address the matter, and adjudicate the issue in the first instance. Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran about (1) the information and evidence not of record that is necessary to substantiate his claim for a TDIU; (2) the information and evidence that VA will seek to obtain on his behalf; and (3) the information or evidence that he is expected to provide. A copy of this notification must be associated with the claims folder. 2. Make arrangements to obtain the Veteran's treatment records from the Houston VAMC, dated since March 2012. 3. Thereafter, schedule the Veteran for a VA examination to determine the current severity of his service-connected hepatitis C. The Veteran's claims file and a copy of this remand must be provided to the examiner for review upon examination. All indicated tests and studies should be performed. The examiner should identify any current symptoms and any sequelae of hepatitis C, such as cirrhosis or malignancy of the liver, experienced by the Veteran, if possible. The examiner should state: Does the Veteran experience daily fatigue, malaise, and anorexia or incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least 4 weeks but less than 6 weeks during the past 12-month period?; Does the Veteran experience daily fatigue, malaise, and anorexia or incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least 6 weeks during the past 12-month period but not occurring constantly?; and Does the Veteran experience near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain)? The examiner is advised that an incapacitating episode of hepatitis C is defined as a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's service-connected hepatitis C renders him unable to secure or follow substantially gainful employment consistent with his education and occupational experience. A complete rationale must be provided for all opinions offered. 4. After the requested examination has been completed, the report should be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, it should be returned to the examiner for corrective action. 5. Finally, readjudicate the claims on appeal. If the claims are not granted to the Veteran's satisfaction, send him and his representative, if any, an SSOC and give him an opportunity to respond before returning the file to the Board for further appellate consideration of these claims. 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. 2012). _________________________________________________ P.M. DILORENZO 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) (2012).