Citation Nr: 1318730 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 09-15 205A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a compensable rating for service-connected hepatitis C. 2. Entitlement to an increased initial rating for service-connected hypertension, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Fagan, Associate Counsel INTRODUCTION The Veteran had active service from August 1966 to August 1969. This matter came before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by the Regional Office (RO) in St. Petersburg, Florida. In his June 2009 substantive appeal, the Veteran requested a Board hearing before a Veterans Law Judge. He subsequently withdrew his hearing request in September 2010. With regard to the hypertension increased rating claim, the Board is assuming jurisdiction of that issue and remanding it pursuant to Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). 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 Veteran was last afforded a VA examination related to his service-connected hepatitis C in May 2008, at which time he was seeking to establish service connection. At that time, the Veteran was found to be essentially asymptomatic. Thereafter, in his August 2008 notice of disagreement and June 2009 substantive appeal, the Veteran asserted that he suffered from various symptoms attributable to his hepatitis C, including fatigue, weight gain, malaise, anorexia, nausea, and right upper quadrant pain. Significantly, the Board observes that the Veteran has also attributed some of those symptoms to other service-connected disabilities, including diabetes and hypertension. Furthermore, VA treatment notes as recent as December 2011 show that the Veteran denied abdominal pain, loss of appetite, and nausea or vomiting. Nevertheless, a June 2012 VA treatment note shows that a November 2011 biopsy for the Veteran's hepatitis C revealed progression from stage 1 fibrosis to stage 3 fibrosis and that the Veteran was going to begin treatment for his condition, suggesting a worsening condition. Given that it has been five years since the Veteran's service-connected disability was last assessed for VA purposes, coupled with the evidence suggesting a worsening condition, the Board finds that he should be provided with a new VA examination. See Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where the record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination - particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support a decision on appeal for an increased rating). Additionally, on remand, ongoing VA treatment notes should be obtained. The Board notes that June 2012 VA treatment notes reference a November 2011 liver biopsy for which there are no associated records. Further, the Veteran should be asked to identify any providers from whom he has received treatment relating to his hepatitis C disability during the pendency of his appeal. Finally, the Board observes that a March 2007 rating decision established service connection for hypertension and assigned a noncompensable disability rating. In April 2007, the Veteran filed a notice of disagreement with the initial rating assigned. In January 2008, the RO awarded an increased 10 percent rating. However, as that increase did not represent the maximum benefit sought on appeal, the claim for increase remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993) (finding that where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). There is no indication that the Veteran withdrew his appeal, nor does it appear that a statement of the case was issued. When a notice of disagreement has been filed with regard to an issue, and a statement of the case has not been issued, the appropriate Board action is to remand the issue to the RO for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999), see also Godfrey v. Brown, 7 Vet. App. 398, 408-410 (1995); Archbold v. Brown, 9 Vet. App. 124, 130 (1996); VAOPGCPREC 16-92 (O.G.C. Prec. 16-92). Since the Veteran has filed a timely notice of disagreement with the disability rating assigned for hypertension in the March 2007 rating decision, a statement of the case must be issued. 38 CFR § 19.29 (2012). Accordingly, the case is REMANDED for the following action: 1. Obtain copies of the Veteran's VA treatment records from June 2012 to the present, as well as relevant outstanding VA treatment records dated prior to December 2011, to include treatment notes relating to treatment for hepatitis in November 2011. 2. Request the Veteran to complete and return the appropriate release forms to allow VA to request any private treatment records for his hepatitis C. 3. Schedule the Veteran for a VA examination to evaluate the current severity of his hepatitis C. The examiner should review the entire claims file. Current symptomatology and treatment, as well as that taking place since 2008, should be clearly identified. If possible, the examiner should distinguish symptoms attributable to the Veteran's hepatitis from symptoms attributable to other service- or nonservice-connected disabilities. The examiner should indicate whether cirrhosis of the liver is present, if it is related to hepatitis C, and what symptoms are associated with cirrhosis. The VA examiner should additionally offer an opinion as to the specific impact the Veteran's hepatitis C has on his ability to secure or follow a substantially gainful occupation. A complete rationale must be provided for all opinions offered. 4. Issue a statement of the case with regard to the Veteran's hypertension increased rating claim, to include notification of the need to timely file a Substantive Appeal to perfect his appeal of this issue. 5. Then, readjudicate the Veteran's hepatitis C increased rating claim. If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case and given the opportunity to respond. The case should then be returned to the Board, if in order. 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 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). _________________________________________________ MICHAEL E. KILCOYNE 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).