Citation Nr: 1324582 Decision Date: 08/02/13 Archive Date: 08/13/13 DOCKET NO. 10-34 618 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE 1. Entitlement to a higher initial evaluation for hepatitis C. 2. Entitlement to a total disability rating based on unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Veteran and his daughter ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active military duty from July 1972 to August 1973, and from December 1976 to December 1996. The appeal comes before the Board of Veterans' Appeals (Board) from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania, effectuating the Board's March 2008 decision granting service connection for hepatitis C, and assigning a 20 percent initial rating for the disability. In the course of appeal, the Veteran raised the issue of entitlement to TDIU based on his hepatitis C, and hence that issue is part of the present appeal. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The RO explicitly denied entitlement to TDIU in a March 2009 decision, though the issue remains in appellate status. In the course of appeal, the Veteran and his daughter testified before the undersigned Veterans Law Judge at a hearing conducted at the Board Central Office in Washington, DC. A transcript of that hearing is of record. The issue of entitlement to service connection for diabetes mellitus as secondary to service-connected hepatitis C was raised by the Veteran in hearing testimony before the undersigned, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. REMAND The Veteran has testified, in effect, to an increase in severity of his hepatitis C since the most recent VA examination in March 2007, and based on that examination not adequately reflecting the extent of his disability. See 38 C.F.R. § 3.159(c)(4) (2012). He specifically testified to always being tired, never having any energy, being only able to function perhaps a total of one week per month or one month per year (his testimony varied over the course of his hearing), due to effects of his hepatitis including sleep impairment, gastrointestinal impairment, and fatigue. He also then asserted that he was entitled to unemployability benefits based on his having been last employed in May 2003, his longer being able to perform that work (employed with the Department of Defense in a combat zone), his not having sought work since, and, in effect, his hepatitis C generally precluding working. Also in testimony and submitted statements, the Veteran contended that he had been awarded Social Security Administration (SSA) disability benefits due to his hepatitis C, and that he should be accordingly awarded TDIU. While Social Security Administration records are not controlling for VA determinations, they may be "pertinent" to VA claims. See Collier v. Derwinski, 1 Vet. App. 412 (1991). SSA records were sought by the RO, but records obtained consisted only of a record of disability award, without the adjudicative decisions or the underlying records relied upon for those decisions. The record of SSA disability award did inform, however, that SSA disability was found based on the Veteran's hepatitis C but also based on the Veteran's back disability. Further efforts to obtain Social Security Administration records and any disability decisions issued for the Veteran are required, pursuant to 38 C.F.R. § 3.159(c)(2). See also Murincsak v. Derwinski, 2 Vet. App. 363, 370-72 (1992); Baker v. West, 11 Vet. App. 163 , 139 (1998) (VA's duty to assist includes obtaining Social Security Administration records when the Veteran reports receiving Social Security Administration disability benefits, as such records may contain relevant evidence). The Veteran also informed of his residence in Germany, and of his receipt of medical care at the Landstuhl U.S. Army Medical Center, as well at a Heidelberg hospital. Records from these facilities are substantially absent from the claims file, and should be sought in furtherance of the claim. See 38 U.S.C.A. § 5103A(b) (West 2002). Accordingly, the case is REMANDED for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence or argument in support of his claim. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. This should include treatment at a hospital in Heidelberg and at the Landstuhl U.S. Army Medical Center. All requests, and all records and responses received should be associated with the claims file or Virtual VA file. Translations should be obtained for any non-English records. 2. The RO should also obtain and associate with the claims file any Social Security disability determination(s) and the medical records underlying the determination(s). 3. After the above development is completed, the Veteran must be afforded appropriate VA examination(s) to address the nature and severity of his hepatitis C, and to determine the combined impact all of the Veteran's service-connected disorders on his ability to obtain or maintain employment consistent with his education and occupational experience. A complete list of currently service-connected disabilities must be provided to the examiner(s). The claims file and all records on Virtual VA must be made available to the examiner and reviewed. The newly obtained SSA records must also be reviewed. All pertinent symptomatology and findings must be reported in detail. All necessary special studies or tests are to be accomplished. The examiner(s) should review the Veteran's multi-volume claims file. The examiner(s) should consider the Veteran's self-reported current and past history of disability and treatment, including self-reported symptoms. The hepatitis examiner must make findings of all current effects of the Veteran's hepatitis C, and, to the extent possible, distinguish these from disability not causally associated with his hepatitis C. For example, the Veteran at his hearing attributed difficulty opening his eyes upon awakening to his hepatitis C, whereas an August 2008 Heidelberg treatment record within the claims file informs that the Veteran also has dry eyes syndrome in both eyes as well as Bell's Palsy. These may be differentiable causes of reported dysfunction in the Veteran's physical opening of his eyes. If it is not medically possible to distinguish symptoms potentially of other disability, the examiner must clearly so state. The examiner addressing the Veteran's service-connected disabilities and their impact on capacity to obtain or retain employment should elicit from the Veteran and should record for clinical purposes a full work and educational history, which must be compared with prior reported employment history. The examiner must consider the Veteran's past education, past employment, and work experience. Based on the clinical examination, a review of the evidence of record, the findings supportive of SSA determination(s), and with consideration of the Veteran's statements, the examiner must provide an opinion as to whether the Veteran is unable to obtain or retain employment due only to his service-connected disabilities (and any disabilities whose symptoms cannot be differentiated from those of the service-connected disabilities), acting in concert, to include effects of any medications taken for these disabilities, consistent with his education and occupational experience. This opinion must be provided without consideration of the impact of his non-service-connected disabilities or his age on his ability to obtain or maintain employment. A complete rationale for all opinions expressed must be given. If the examiner(s) cannot provide the requested opinions without resorting to speculation, this must be so stated, and the examiner(s) must provide the reasons why an opinion would require speculation. The examiner(s) must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner(s) must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report must be typed. 4. After completing the above actions, the claims on appeal must be readjudicated. If either issue on appeal remains denied, a supplemental statement of the case must be provided to the Veteran. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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). _________________________________________________ DENNIS F. CHIAPPETTA 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).