Citation Nr: 1308737 Decision Date: 03/14/13 Archive Date: 03/25/13 DOCKET NO. 08-05 022 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to service connection for retinal occlusion of the left eye, claimed as secondary to an acquired psychiatric disorder (including posttraumatic stress disorder). 2. Entitlement to service connection for hepatitis A. 3. Entitlement to service connection for hepatitis C. 4. Entitlement to an increased rating for chronic, serum-type hepatitis (hepatitis B), evaluated as noncompensably disabling prior to January 6, 2012, and as 40 percent disabling thereafter. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The veteran served on active duty from December 1969 to December 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal of a March 2007 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. Good or sufficient cause having been shown, the Veteran's appeal has been advanced on the Board's docket under the provisions of 38 U.S.C.A. § 7107 (West 2002) and 38 C.F.R. § 20.900(c) (2012). This case was previously before the Board in June 2010 and December 2011, on which occasions it was remanded for additional development. The case is now, once more, before the Board for appellate review. In a November 2012 rating decision the Appeals Management Center (AMC) granted entitlement to service connection for major depressive disorder with panic disorder, evaluated as 30 percent disabling from October 10, 2006; and as 100 percent disabling effective from January 17, 2012. Accordingly, the issue of entitlement to service connection for an acquired psychiatric disorder, which was formally on appeal, is no longer before the Board. The Board further notes that, in a rating decision of January 2013, the AMC granted entitlement to a 40 percent evaluation for chronic, serum-type hepatitis (hepatitis B), effective from January 6, 2012. Accordingly, the issue of entitlement to an increased rating for hepatitis B has been recharacterized to take into account that staged rating. Currently on file is a VA Form 21-0960A-1, Ischemic Heart Disease (IHD) Disability Benefits Questionnaire, dated in May 2012. At this time, however, the issue of entitlement to service connection for ischemic heart disease does not appear to have been adjudicated. Similarly unclear, based on the evidence of record, is whether the Veteran did, in fact, have service "on the ground" in the Republic of Vietnam. [N.B. Pages from the appellant's service record book show service in the contiguous waters of the Republic of Vietnam, but do not document service on the land mass of that nation.] Inasmuch as the issue of entitlement to service connection for ischemic heart disease has not been developed or certified for appellate review, it is not for consideration at this time. It is, however, being referred to the RO for clarification, and, if necessary, appropriate action. Finally, for reasons which will become apparent, this appeal is once again being REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. VA will notify you if further action is required on your part. REMAND At the time of the Board's prior remand in December 2011, it was requested that, following appropriate VA examinations, an opinion be provided as to whether any diagnosed acquired psychiatric disorder at least as likely as not had its origin during, or was in some way the result of, the Veteran's period of active military service. If and only if it was determined that the Veteran suffered from a chronic acquired psychiatric disorder which was in some way related to service, an additional opinion was requested as to whether the Veteran's longstanding drug and/or alcohol abuse was causally related to that acquired psychiatric disorder. Finally, were it to be determined that the Veteran's longstanding polysubstance abuse was in some way causally related to a service-related acquired psychiatric disorder, an additional opinion was requested as to whether the Veteran's hepatitis A and C, as well as his left eye retinal occlusion, were causally related to that polysubstance abuse. Significantly, following a VA psychiatric examination in January 2012, it was determined that the Veteran was suffering from a major depressive disorder with associated panic disorder secondary to service-connected hepatitis B, with the result that service connection was awarded for that psychiatric disability. No opinion, however, was ever offered as to whether the Veteran's longstanding polysubstance abuse was in some way related to that psychiatric disability. Nor was any opinion provided regarding whether the Veteran's hepatitis A and C were in some way related to the aforementioned polysubstance abuse. Such opinions are necessary prior to a final adjudication of the Veteran's current claims. See Stegall v. West, 18 Vet. App. 268, 271 (1998). Inasmuch as the issue of entitlement to an increased rating for hepatitis B is inextricably intertwined with the issues of entitlement to service connection for hepatitis A and C, that issue will likewise undergo further development as part of the current remand. Accordingly, in light of the aforementioned, the case is once again REMANDED to the RO/AMC for the following actions: 1. Any pertinent VA or other inpatient or outpatient treatment records dated since January 2012 should be obtained and incorporated in the claims folder. The Veteran should be requested to sign the necessary authorization for release of any private medical records to VA. If the RO/AMC cannot locate such records, the RO/AMC must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO/AMC must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. Thereafter, the Veteran should be afforded an additional VA psychiatric examination, as well as other VA examinations by appropriate specialists, in order to more accurately determine the exact nature and etiology of his hepatitis A and C, as well as the current severity of his hepatitis B. The psychiatric examination must be conducted by a psychiatrist or psychologist who has not heretofore seen or examined the Veteran. The Veteran must be given adequate notice of the date and place of all examinations. The Veteran must be advised that failure to report for a scheduled VA examination without good cause may have an adverse affect on his claims. See 38 C.F.R. §§ 3.158, 3.1655 (2012). In the event that the Veteran does not report for the aforementioned examinations, documentation should be obtained which shows that notice scheduling the examinations was sent to his last known address. Moreover, it should be indicated whether any notice sent was returned as undeliverable. As regards the requested examinations, all pertinent symptomatology and findings should be reported in detail, and all appropriate studies should be performed. Following completion of the psychiatric examination, the examiner must specifically address whether the Veteran's longstanding drug and/or alcohol abuse is at least as likely as not proximately due to, the result of, or aggravated by his service-connected major depressive disorder with panic disorder. Should it be determined that the Veteran's longstanding polysubstance abuse is causally related to his major depressive disorder with panic disorder, an additional opinion is must address whether the Veteran's hepatitis A and C are causally related to that polysubstance abuse. Finally, following completion of any necessary examination, and in accordance with the latest AMIE worksheet for rating hepatitis B, the appropriate examiner is to provide a detailed review of Veteran's pertinent medical history and current complaints, as well as the nature and extent of his service-connected hepatitis B. In so doing, the examiner must specifically address complaints of fatigue, malaise, and anorexia, as well as weight loss, and/or incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, althralgia, and right upper quadrant pain). A complete rationale must be provided for any opinion offered, and all information and opinions, once obtained, must be made a part of the Veteran's claims folder. The claims folder and a separate copy of this REMAND must be made available to and reviewed by the examiners prior to completion of the examinations. In addition, the examiners must specify in their reports that the claims file and Virtual VA records have been reviewed. 3. The RO/AMC must then review the examination reports to ensure that they are in complete compliance with the directives of this REMAND, and that the examiners have documented their consideration of all records contained in Virtual VA. If the reports are deficient in any manner, the RO/AMC must implement corrective procedures. 4. The RO/AMC must then readjudicate the Veteran's claims of entitlement to service connection for hepatitis A and C, as well as his claim for entitlement to an increased rating for hepatitis B. Should the benefits sought on appeal remain denied, the Veteran and his representative must be provided with a Supplemental Statement of the Case which must contain notice of all relevant action taken on the claims for benefits since January 2013. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome in this case. The Veteran need take no action unless otherwise notified. The issue of entitlement to service connection for retinal occlusion of the left eye will be held in abeyance pending completion of the development described above. 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). _________________________________________________ DEREK R. BROWN 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) (2010).