Citation Nr: 1324607 Decision Date: 08/02/13 Archive Date: 08/13/13 DOCKET NO. 09-49 327 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for hepatitis C and liver problems. 2. Entitlement to service connection for erectile dysfunction also claimed secondary to service-connected laryngeal cancer. 3. Entitlement to a total disability rating for individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The Veteran served on active duty from August 1970 to August 1973. This matter is before the Board of Veterans' Appeals (Board) on appeal from January 2009 and July 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. During the pendency of this appeal, in a March 2010 rating decision, the Veteran was awarded a 100 percent schedular rating for prostate cancer, effective November 30, 2009. The current appeal seeking TDIU, however, stems from an August 19, 2008 claim. VA must still consider his claim for TDIU based on the combined effect of his other service-connected disabilities for the purposes of possible future entitlement to special monthly compensation. Bradley v. Peake, 22 Vet. App. 280 (2008). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND The Veteran claims he has hepatitis C and resulting liver problems as a result of in-service risk factors, to include sexual activity, obtaining a tattoo, and sharing razors with other servicemen. He claims he has erectile dysfunction as a result of radiation therapy for his laryngeal cancer. He further claims he is unemployable due to all of his service-connected disabilities. With regard to all the claims on appeal, the Board notes additional VA outpatient treatment records through March 2010 were associated with the claims folder after the final November 2009 Supplemental Statement of the Case (SSOC) was issued. Thus, the agency of original jurisdiction (AOJ) never considered these records in regard to the pending appeal, and the Veteran did not waive local jurisdictional review of these records. The new treatment records are not duplicative and are relevant to the claims on appeal. Corrective action is necessary. See 38 C.F.R. § 19.37(a), 20.1304 (2012) (indicating if an SOC is prepared before the receipt of further evidence, a supplemental statement of the case (SSOC) must be issued to the Veteran, as provided in 38 C.F.R. § 19.31, unless the additional evidence is duplicative or not relevant to the issue(s) on appeal). VA must also take this opportunity to obtain recent VA outpatient treatment records from March 2010 to the present. Hepatitis C The medical evidence indicates the Veteran was diagnosed with hepatitis C sometime in 2000 or 2001. VA outpatient treatment records indicate he sought testing in December 2000 after his girlfriend told him she had hepatitis A, B, or C. In January 2001, he tested positive for Hepatitis C, but not A or B. He indicated at that time that his girlfriend also tested positive for Hepatitis C but that she told him he would not be able to "catch it" from intercourse. The Veteran's hepatitis C claim is complicated because the record supports both in-service and post-service risk factors. In-service, the Veteran was treated for gonorrhea in October 1972, possibly indicative of high-risk sexual activity. He also claims he received a tattoo and shared razors during his military service, but his records do not specifically confirm these events. After service, it is well documented the Veteran had a lengthy intranasal cocaine addiction. Indeed, 2010 records indicate he is currently struggling with both cocaine and alcohol abuse. As indicated above, there is also post-service evidence of sexual activity with his girlfriend that may have exposed him to hepatitis. The Veteran was afforded a VA examination in July 2009 where the examiner declined rendering opinion as to etiology finding to do so would require resorting to mere speculation in light of the in-service and post-service risk factors. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010) (when an examiner concludes that an "etiology opinion is not possible without resort to speculation . . . . it is not clear whether the examiner lacks the expertise to render such an opinion, or whether some additional testing or information is needed, and possibly available, that would permit such an opinion"). The examination was conducted by a nurse practitioner. The report did not note or otherwise indicate consideration of the 2000 and 2001 VA outpatient treatment records (found amongst the Social Security Administration (SSA) disability records) noting the Veteran's girlfriend's diagnosis and his own positive test results. The examiner also did not consider recent outpatient treatment records noting current cocaine abuse. In contrast, the examiner found the Veteran's intranasal cocaine abuse was in remission for many years. In light of the speculative opinion, reliance on incomplete facts, the fact that the examiner was not a medical specialist, and the fact that it is necessary to remand this issue for other reasons, the Board concludes a new VA examination should be obtained by a hepatitis specialist; namely, a gastroenterologist. Jones, 23 Vet. App. at 390; cf. Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (medical opinions based on incomplete or inaccurate factual premise are not probative); Obert v. Brown, 5 Vet. App. 30, 33 (1993) (holding speculative or inclusive medical opinions are not probative). Erectile Dysfunction In a September 2008 statement, the Veteran claimed he has erectile dysfunction as a result of cancer treatment, specifically radiation, for his laryngeal cancer. A disability proximately caused or aggravated by another service-connected disability shall be service connected. See 38 C.F.R. § 3.310. Here, the Veteran is service-connected for laryngeal cancer and various residual disabilities, to include depression, esophageal stricture, hoarseness and loss of voice, and scar of the neck. Most recent 2010 VA outpatient treatment records indicate the Veteran's laryngeal cancer is in complete remission, but he is currently receiving treatment for service-connected prostate cancer. None of the current medical evidence shows or otherwise confirms a diagnosis of erectile dysfunction (ED). For that reason, the Veteran has never been afforded a VA examination to ascertain whether he has ED caused or aggravated by any service-connected disability. ED, however, is a condition that is readily observable to the Veteran without a medical diagnosis. Cf. Barr v. Nicholson, 21 Vet. App. 303 (2007). In light of the Veteran's various service-connected residuals stemming from his cancer, his description of ED, and his current treatment for prostate cancer, the Board concludes a VA examination is warranted. TDIU The Veteran claims he has been unemployable for decades due to his service-connected disabilities. See, e.g., January 2009 formal TDIU claim. On his January 2009 TDIU claim form, the Veteran indicated he has not worked since 1980. On SSA disability documents, to include a March 2003 SSA disability determination examination and the September 2004 SSA decision, the Veteran indicated he worked as a textile machine operator, forklift operator, and custodian until January 2001. The Veteran was recently awarded a 100 percent schedular disability rating for prostate cancer, effective November 30, 2009. Besides the prostate cancer, service connection is also in effect for laryngeal cancer and various residuals stemming from his cancer, to include depression, a scar, hoarseness and loss of voice, and esophageal stricture. The Veteran has never clearly articulated what service-connected disability or disabilities he believes render him unemployable. Concerning this, the Board notes that he indicated to a July 2009 VA examiner (hepatitis) that he was disabled due to non-service connected feet and back problems. According to a September 2004 SSA decision, he was awarded SSA disability benefits as of January 2001 for non-service connected physical and mental health conditions. Although service connection has been granted for depression associated with laryngeal cancer, all of the Veteran's mental health diagnoses at the time of the 2004 SSA determination pre-dated his laryngeal cancer and resulting depression. It is unclear, therefore, whether the SSA disability determinations are relevant to the inquiry here. VA examination opinions dated in 2008 indicate a range from "mild" to "severe" occupational impairment due to his service-connected disabilities. As noted above, the July 2009 VA examiner did not specifically proffer an opinion with regard to employability but did note the Veteran's own contentions that he was disabled due to non-service connected feet and back problems. No medical examiner has considered the combined effect of all the Veteran's service-connected disabilities on his employability. A VA medical opinion is necessary to resolve the conflicting medical evidence, to the extent possible, and ascertain whether the Veteran is unemployable due solely to service-connected disabilities (aside from prostate cancer, which is already rated 100 percent disabling). The Board further notes the TDIU issue is "inextricably intertwined" with the resolution of the service connection claims on appeal here, and therefore, they must be fully decided prior to adjudication of the Veteran's TDIU claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify and provide release forms for any private or VA treatment received for any of the claimed conditions since 2010. Thereafter, efforts should be made to obtain any and all identified treatment, to include at the VA Medical Center in Columbia, South Carolina, from March 2010 to the present. All efforts to obtain identified medical records should be fully documented, and any VA facility must specifically provide a negative response if records are not available. 2. After the above is completed and records are obtained to the extent available, schedule the Veteran for an appropriate VA examination with a gastroenterologist to ascertain the likely etiology of his hepatitis C. The claims file and any pertinent evidence in Virtual VA that is not contained in the claims file must be made available to and reviewed by the examiner. The examiner is specifically directed to consider service treatment records indicating treatment for gonorrhea in 1972, the Veteran's contentions of in-service receipt of a tattoo and sharing razors, 2000 and 2001 VA outpatient treatment records indicating his girlfriend tested positive for hepatitis first, his post-service decades-long intranasal cocaine abuse, his poly-substance abuse, and the July 2009 VA examination and opinion. Based on the examination and review of the record, the examiner should answer the following: Is it at least as likely as not (50% probability) that the Veteran's hepatitis C is due to in-service treatment for gonorrhea (or sexual activity); claimed in-service receipt of a tattoo and shared razors; or any other identified in-service risk factor versus post-service risk factors (i.e., post-service intranasal cocaine abuse, high risk sexual activity, to include his girlfriend telling him in December 2000 that she had hepatitis prior to intercourse, and other substance abuse)? The examiner is requested to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles resolving all conflicting medical evidence in the record. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. Note: The term 'at least as likely as not' does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. 3. After #1. above is completed and records are obtained to the extent available, schedule the Veteran for an appropriate VA examination to ascertain whether the Veteran has erectile dysfunction and, if so, the likely etiology of his ED. The claims file and any pertinent evidence in Virtual VA that is not contained in the claims file must be made available to and reviewed by the examiner. The examiner must be informed of all the Veteran's service connected disabilities, to include laryngeal cancer, prostate cancer, depression, esophageal stricture, scar of the neck, and hoarseness/loss of voice. Based on the examination and review of the record, the examiner should answer the following: Is it at least as likely as not (50% probability) that the Veteran has ED caused or aggravated by any service connected disability or disabilities? The examiner is requested to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles resolving all conflicting medical evidence in the record. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. Note: The term 'at least as likely as not' does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. 4. After all of the above is completed, records are obtained to the extent available, and the remaining service connection issue are fully decided, obtain a VA medical opinion to ascertain the Veteran's occupational impairment due solely to service-connected disabilities (aside from his service-connected prostate cancer, which is already 100 percent rated). The entire claims file and any pertinent evidence in Virtual VA that is not contained in the claims file must be made available to and reviewed by the examiner. Although it is the responsibility of the VA rating specialist to determine, based on all the relevant evidence of record--including reports of examination, outpatient treatment records, lay statements, letters from employers, and evidence pertaining to the Veteran's educational background and employment history--whether the Veteran is unable to obtain or retain substantially gainful employment in light of his service-connected disabilities alone, the VA examiner must address the extent of functional and industrial impairment due to the Veteran's service-connected disabilities. It is the examiner's responsibility to furnish a full description of the effects of the service-connected disabilities upon the Veteran's ordinary activity which include employment. See 38 C.F.R. § 4.10. For example, his description may include an opinion on such questions as whether a claimant's condition precludes standing for extended periods, lifting more than a certain weight, sitting for eight hours a day, or performing other specific tasks. Moore v. Nicholson, 21 Vet. App. 211, 219 (2007), rev'd on other grounds sub nom. Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). The examiner should, in this case, offer such an opinion as to whether it is at least as likely as not that the Veteran's service-connected disabilities (aside from prostate cancer, which is already rated 100 percent disabling), to include laryngeal cancer, depression, scar of the neck, esophageal stricture, and hoarseness/loss of voice, either singly or taken together, render him unable to secure or follow a substantially gainful occupation. The examination report must include a complete rationale for all opinions and conclusions expressed. The examiner is asked to the extent possible resolve the conflicting evidence found in the 2008 VA examinations noting occupational impairment ranging from "mild" to "severe," and the SSA disability records (to include the September 2004 SSA determination) noting unemployability in part due to various mental health conditions that pre-dated the Veteran's laryngeal cancer-induced depression. Note: The term 'at least as likely as not' does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. 5. Then, readjudicate the claims. If any of the claims remain denied, provide the Veteran and his representative a supplemental statement of the case (SSOC). An appropriate period of time must be allowed for response. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The claims 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 2002). _________________________________________________ KATHLEEN K. GALLAGHER 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).