Citation Nr: 1334632 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 07-17 049A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for service-connected hepatitis C. 2. Entitlement to a compensable initial disability rating for service-connected bilateral hearing loss. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from August 1976 to October 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions dated November 2005 and June 2006 of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In March 2011, the Veteran presented sworn testimony during a personal hearing in Washington D.C., which was chaired by a Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's VA claims file. As the Veterans Law Judge who presided over the March 2011 hearing retired, the Veteran was scheduled to appear in Washington D.C. for another personal hearing before a Veterans Law Judge in July 2013. However, the Veteran failed to appear for said hearing, and he has not since asked for it to be rescheduled. Accordingly, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2013). In a May 2011 Board decision, the claims were remanded for further evidentiary development. The VA Appeals Management Center (AMC) continued the previous denials in a June 2012 supplemental statement of the case (SSOC). The Veteran's VA claims file has been returned to the Board for further appellate proceedings. The appeal is REMANDED to the RO via the AMC, in Washington, DC. VA will notify the Veteran if further action on his part is required. REMAND After having carefully considered the matter, and for reasons expressed immediately below, the Board finds that the claims on appeal must again be remanded for further evidentiary development. The Board is cognizant of the fact that the Veteran's case has been in adjudicative status for several years and it has already been remanded in the past. Consequently, the Board wishes to assure the Veteran that it would not be remanding this case again unless it was essential for a full and fair adjudication of his claims. The evidence of record includes a January 2006 VA treatment record in which it is documented that the Veteran "is currently on disability." Additionally, a VA treatment record dated June 2012 noted that the Veteran had requested that a letter be written for the Social Security Administration (SSA) by his treatment provider indicating that he is able to work only part-time due to his physical disabilities. To this end, the Board observes that no SSA records pertaining to the Veteran have been associated with the claims file. Where VA has actual notice of the existence of records held by SSA that appear relevant to a pending claim, VA has a duty to assist by requesting those records from SSA. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992) (VA's duty to assist includes obtaining records from SSA and giving appropriate consideration and weight in determining whether to award or deny VA disability compensation benefits). Accordingly, the Veteran's SSA records should therefore be obtained for consideration in connection with the issues on appeal. Additionally, as was explained in the May 2011 Board Remand, the Veteran has asserted that his service-connected hearing loss and hepatitis C disabilities had worsened since his last VA examinations in April 2006. See, e.g., the March 2011 Board hearing transcript. Accordingly, the Board remanded these claims in May 2011 in order to afford the Veteran updated VA examinations to determine the current severity of the service-connected hearing loss and hepatitis C. Pursuant to the May 2011 Board Remand, the agency of original jurisdiction (AOJ) sought to schedule the Veteran for a VA examination as to the pending claims. The Veteran subsequently failed to appear for the June 2011 VA examinations. VA regulation provides that, when a claimant fails, without good cause, to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655 (2013). The Board recognizes that the claims file contains no information concerning whether the Veteran was notified of the date and time of the June 2011 VA examination. However, because the regular practices of VA do not include maintaining a hard copy of the Veteran's notice of his scheduled VA examinations, the absence of any such copy from the claims file generally cannot be used as evidence to demonstrate that a notice was not mailed. See Kyhn v. Shinseki, 23 Vet. App. 335, 339 (2010). So the absence of a notice letter in the file of the date, time, and location of a rescheduled VA examination does not overcome the presumption of administrative regularity, which provides that government officials are presumed to "have properly discharged their official duties." Ashley v. Derwinski, 2 Vet. App. 307, 308 (1992); see also Sthele v. Principi, 19 Vet. App. 11, 17 (2004); Jones v. West, 12 Vet. App. 98, 100-102 (1998). However, as the claims are being remanded in order to obtain outstanding SSA records, in an abundance of caution, the Board herein orders that the examinations of the Veteran be rescheduled with respect to the pending claims. Additionally, review of the record (including the Veteran's physical VA claims file as well as his Virtual VA file) reflects ongoing VA medical treatment. Thus, on remand, any previously unobtained ongoing relevant medical records should be procured and associated with his claims file. 38 U.S.C.A. § 5103A(c) (West 2002). Accordingly, the case is REMANDED for the following action: 1. Request from SSA the records pertinent to the Veteran's claim for Social Security disability benefits and the medical records relied upon concerning that claim. 2. After obtaining the appropriate releases where necessary, procure records of any outstanding treatment that the Veteran has recently received. The Board is particularly interested in records of treatment that the Veteran may have received through the VA Washington D.C. Healthcare System, or any other VA healthcare system or facility. All such available documents should be associated with the claims file. 3. Then, schedule the Veteran for a VA examination to ascertain the current severity of his service-connected hepatitis C. The claims file, including a copy of this Remand, must be made available to and reviewed by the examiner. All indicated studies should be performed. All pertinent pathology should be discussed in the examination report. The examiner should report whether the Veteran's service-connected hepatitis C is manifested by fatigue, malaise, anorexia, hepatomegaly, nausea, vomiting, arthralgia, or right upper quadrant pain, and how often such symptoms occur. The examiner should also determine if any weight loss (or other indication of malnutrition) has occurred, and if so, to what extent. The examiner should determine whether the Veteran has had incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) severe enough to require bed rest, and if so, the total duration of such incapacitating episodes in the past 12 months. See 38 C.F.R. §§ 4.112, 4.114 (Diagnostic Code 7354). Additionally, the examiner should address the functional effects of the Veteran's hepatitis C to include its effect, if any, on his ability to maintain gainful employment. All examination results, along with the complete rationale for the opinions provided, to include citation to pertinent evidence of record and/or medical authority, as appropriate, should be set forth. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. Additionally, schedule the Veteran for a VA audiological examination to determine the severity of his service-connected bilateral hearing loss. The claims file, including a copy of this Remand, must be made available to and reviewed by the examiner. All indicated studies should be performed. All pertinent pathology should be discussed in the examination report. In addition to providing specific audiometric findings, the examiner is specifically requested to fully describe the functional effects caused by the Veteran's bilateral hearing loss, to include its effect, if any, on his ability to maintain gainful employment. All examination results, along with the complete rationale for the opinions provided, to include citation to pertinent evidence of record and/or medical authority, as appropriate, should be set forth. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 5. Thereafter, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response before the case is returned to the Board. The Veteran 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (the Court) 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). _________________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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) (2013).