Citation Nr: 1335232 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 03-20 229 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for eye problems, to include as secondary to hepatomegaly with hepatitis C and cirrhosis. 2. Entitlement to service connection for arthritis, to include as secondary to hepatomegaly with hepatitis C and cirrhosis. 3. Entitlement to a rating in excess of 10 percent for hepatomegaly with hepatitis C and cirrhosis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. Joyner, Counsel INTRODUCTION The Veteran served on active duty from January 1971 to February 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2003 rating decision by the Columbia, South Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). In April 2005, the Veteran testified at videoconference hearing before a Veterans Law Judge. A copy of the transcript of that hearing is of record. By letter dated in August 2013, the Board informed the Veteran that the Veterans Law Judge who conducted his April 2005 hearing is no longer employed with the Board. The Veteran was afforded the opportunity to have another hearing, but by letter dated later that month, he declined the offer. The Veteran's claims were previously remanded in July 2005 and December 2007. In addition, the Board remanded the issue of entitlement to special monthly pension in December 2007. Subsequently, in a November 2012 rating decision, the RO granted special monthly pension based on the need for aid and attendance. As this represents a total grant of benefits sought on appeal, this issue is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). The issues of entitlement to service connection for eye problems, to include as secondary to hepatomegaly with hepatitis C and cirrhosis, and entitlement to service connection for arthritis, to include as secondary to hepatomegaly with hepatitis C and cirrhosis, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Prior to June 28, 2012, the Veteran's service-connected hepatomegaly with hepatitis C and cirrhosis was manifested by intermittent fatigue, malaise and anorexia; there was no evidence of daily fatigue, malaise, and anorexia requiring dietary restriction or continuous medication, or of incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12-month period. 2. Beginning on June 28, 2012, the Veteran's service-connected hepatomegaly with hepatitis C and cirrhosis is manifested by near-constant debilitating fatigue, malaise, and arthralgia. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for hepatomegaly with hepatitis C and cirrhosis, prior to June 28, 2012, have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.114, Diagnostic Code 7354 (2013). 2. The criteria for a rating of 100 percent for hepatomegaly with hepatitis C and cirrhosis, beginning on June 28, 2012, have been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.114, Diagnostic Code 7354 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In March 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (1) Veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and/or an effective date will be assigned if service connection is awarded. Because the Court's decision is premised on the five elements of a service connection claim, it is the consensus opinion within the VA that the analysis employed can be analogously applied to any matter that involves any one of the five elements of a "service connection" claim, to include an increased rating claim. In VA correspondence dated in August 2005, September 2005, December 2005, and July 2010, the Veteran was informed of what evidence was required to substantiate his increased rating claim, and of his and VA's respective duties for obtaining evidence. Also, the July 2010 letter informed the Veteran of the criteria for consideration in assigning effective dates and/or disability ratings. In Pelegrini, the Court held that compliance with 38 U.S.C.A. § 5103 required that VCAA notice be provided prior to an initial unfavorable AOJ decision. Because VCAA notice in this case was not completed prior to the initial AOJ adjudication of the claims, the timing of the notice did not comply with the express requirements of the law as found by the Court in Pelegrini. Although the July 2010 letter, which contained the notice regarding disability ratings and effective dates, was sent after the initial unfavorable decision by the Agency of Original Jurisdiction (AOJ) in May 2003, following the provision of the required notice and the completion of all indicated development of the record, the originating agency readjudicated the claim in a November 2012 supplemental statement of the case. As such, there was not prejudice to the Veteran concerning the timing of these notice elements. See Prickett v. Nicholson, 20 Vet. App. 370 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim is sufficient to cure a timing defect). In light of the above, the content of the August 2005, September 2005, December 2005, and July 2010 letters fully complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), and Dingess/Hartman. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notice. All the VCAA requires is that the duty to notify is satisfied, and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996). The Board finds the VCAA notice requirements have been met in this case. Duty to assist With regard to the duty to assist, the claims file contains the Veteran's service treatment records, statements of the Veteran, identified private treatment records, Social Security Administration (SSA) disability benefits records, and VA examination and opinion reports. The Board has carefully reviewed the Veteran's statements and concludes that there has been no identification of further available evidence not already of record for which VA has a duty to obtain. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the claims. VA examinations with respect to the issue on appeal were obtained in April 2003, January 2006, August 2008, March 2011, and June 2012 and medical opinions were obtained in June 2012, July 2012, and August 2012. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that, together, these examinations and opinions are adequate, as they reflect that physical examinations were conducted and appropriate testing, to include ultrasounds and laboratory testing, were taken into account by the June 2012 examiner. Moreover, the Veteran's claims file was available for review at the time of these examinations and opinions, and the reports contain findings congruent with the evidence of record. Therefore, the evidence contained in the examination and opinion reports is adequate to evaluate the disability under the applicable diagnostic rating criteria. Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination and/or an opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist in developing the facts pertinent to the claim. Essentially, all available evidence that could substantiate the claim has been obtained. In Bryant v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. 3.103(c)(2) (2013) requires that the VLJ who conducts a hearing fulfill two duties to comply with the above the regulation. Bryant v. Shinseki, 23 Vet. App. 488 (2010). These duties consist of (1) the duty to fully explain the issue or issues on appeal and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, the Veteran was assisted at the Board hearing by an accredited representative from The American Legion. During the Veteran's hearing, the VLJ and the Veteran's representative asked the Veteran questions to ascertain the extent of any current symptoms. They also asked questions regarding current treatment and specifically clarified where the Veteran was receiving private treatment. Although the Veterans Law Judge did not advise the Veteran, during the hearing, of the elements of the claims that were lacking to substantiate an increased rating, the VLJ solicited information from the Veteran so that he was able to clarify his contentions. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) nor identified any prejudice in the conduct of the Board hearing. As such, the Board finds that the VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2), consistent with Bryant, and that any error in notice provided during the Veteran's hearing constitutes harmless error. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). In this regard, the Board is satisfied as to compliance with the instructions from its July 2005 and December 2007 remands. Specifically, the July 2005 Board remand instructed the RO to send the Veteran a letter informing him of the provisions of the VCAA and asking the Veteran to identify all health care providers who have treated him. The RO was also directed to obtain any VA and private treatment records, to specifically include VA treatment records dating form May 2004 to the present and available private treatment records from UNC, MUSC, Greenwood, Seacoast, Beaufort County, and Loris Community Hospital. In addition, the RO also was to obtain the Veteran's SSA disability benefits records. Finally, the RO was to provide the Veteran with a VA examination to determine the severity of his hepatomegaly with hepatitis C and cirrhosis. The December 2007 remand instructed the RO to return the claims file to the January 2006 examiner or other appropriate examiner to determine the current symptoms of the Veteran's service-connected hepatomegaly with hepatitis C and cirrhosis. The RO sent the Veteran letters in August 2005, September 2005 and July 2010 which notified the Veteran of the provisions of the VCAA and requested information regarding private health care providers. The Veteran provided information sufficient for the RO to obtain the identified private treatment records and the RO obtained all available private treatment records. (The Veteran specifically indicated in an August 2005 statement that he had not received treatment at UNC or Beaufort County and the RO sent the Veteran a September 2005 letting stating that based upon this information, no further attempt to retrieve records from these facilities would be undertaken.) The RO also obtained the Veteran's VA treatment records from May 2004. The Board finds that the RO has complied with the Board's instructions and that, together, the January 2006, August 2008, March 2011, and June 2012 VA examination reports and June, 2012, July 2012, and August 2012 opinion reports substantially comply with the Board's July 2005 and December 2007 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Rating Disabilities Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2013). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. Id. § 4.3. Further, a disability rating may require re-evaluation in accordance with changes in a Veteran's condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. Id. § 4.1. Nevertheless, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes that staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence for the rating period on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. Analysis The Veteran seeks entitlement to an evaluation in excess of 10 percent for hepatomegaly with hepatitis C and cirrhosis, which is currently evaluated pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7354. In this regard, in November 2002, the Veteran expressed that he wished to file a claim for an increased evaluation for his service-connected hepatomegaly with hepatitis C and cirrhosis, asserting that the severity of such had worsened. As the Veteran's claim was received by VA in November 2002, the rating period on appeal is from November 2001, one year prior to the date of receipt of the increased rating claim. 38 C.F.R. § 3.400(o)(2) (2013). However, in accordance with 38 C.F.R. §§ 4.1 and 4.2 (2013) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the history of the disability is for consideration in rating a disability. Under Diagnostic Code 7354, a compensable rating of 10 percent is warranted when the Veteran has serologic evidence of hepatitis C infection and the following signs and symptoms due to the hepatitis infection: intermittent fatigue, malaise, and anorexia or incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least one week, but less than two weeks, during the past 12 month period. A 20 percent rating is warranted when symptoms include daily fatigue, malaise, and anorexia (without weight loss or hepatomegaly), requiring dietary restriction or continuous medication; or for incapacitating episodes (with symptoms described above) having a total duration of at least two weeks, but less than four weeks, during the past 12-month period. A 40 percent rating is warranted when symptoms include daily fatigue, malaise, and anorexia, with minor weight loss and hepatomegaly; or for incapacitating episodes (with symptoms described above) having a total duration of at least four weeks, but less than six weeks, during the past 12-month period. A 60 percent rating is warranted when symptoms include daily fatigue, malaise, and anorexia, with substantial weight loss (or other indication of malnutrition), and hepatomegaly, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least six weeks during the past 12-month period, but not occurring constantly. A 100 percent rating is assigned for near- constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). 38 C.F.R. § 4.114, Diagnostic Code 7354. Note 1 under Diagnostic Code 7354 states: Evaluate sequelae, such as cirrhosis or malignancy of the liver, under an appropriate diagnostic code, but do not use the same signs and symptoms as the basis for evaluation under Code 7354 and under a diagnostic code for sequelae. Note 2 defines an "incapacitating episode" as "a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician." 38 C.F.R. § 4.112, Diagnostic Code 7354. The medical evidence of record includes a June 2002 VA treatment record, which notes that examination of the abdomen revealed no masses, no hepatosplenomegaly, and no tenderness. An October 2002 VA treatment record notes that the Veteran was recently diagnosed with hepatitis C. It was noted that he had gained weight. Examination revealed right upper quadrant pain. Organomegaly could not be appreciated. The Veteran weighed 240 lbs. A November 2002 VA treatment record reflects that examination of the abdomen revealed no hepatosplenomegaly. The Veteran reported that he had gained 80 lbs. in the past two years. A December 2002 ultrasound of the abdomen was normal. The report specifically indicates that there is no evidence of ascites. A January 2003 VA treatment record notes that liver ultrasound showed normal texture and contour. It was noted that the Veteran was interested in treatment but was uncertain that he would be able to attend the frequent appointments required for such treatment. The Veteran's weight was noted to be 263 lbs. An April 2003 VA examination report notes that the Veteran's skin color was normal. His abdomen was without clinical signs of ascites. The abdomen was diffusely tender, especially on the right side. No discrete organs were palpable, including the liver. The examiner opined that it is unlikely that any of the Veteran's current symptoms are due to hepatitis infection, and it is more likely that the Veteran's current swelling and pain are related to his congestive heart failure, hypertension, and gross obesity. An April 2003 private treatment record notes that the Veteran complained of nausea but he denied vomiting. Examination of the abdomen revealed no tenderness, no masses, and no organomegaly. An August 2003 VA treatment record notes that the Veteran's abdomen was nontender. It was noted that the Veteran is a reasonable candidate for hepatitis C treatment, but the Veteran stated that he is unable to make the every two week appointments due to his joint problems. It was noted that the Veteran was not cirrhotic and only had grade 2 stage 2 on liver biopsy. An October 2003 VA treatment record notes that the Veteran denied abdominal pain. An August 2004 VA treatment record notes that the Veteran reported nausea but denied vomiting. His weight was 254.6 lbs. On examination his abdomen was nontender. A December 2004 VA treatment record notes that the Veteran was seen for follow-up for his hepatitis C. It was noted that he denied abdominal pain, nausea, vomiting, diarrhea, BRBPR, melena, hematemesis, or weight loss. He also denied jaundice, pruritis, confusion, abdominal swelling, and gastrointestinal bleeding. His weight was noted to be 254.8 lb. A January 2005 private treatment record notes that the abdomen was soft and nontender. The Veteran did not have nausea, vomiting, or diarrhea. A February 2005 VA treatment record notes that the Veteran denied abdominal pain, nausea, vomiting, diarrhea, bright red blood per rectum (BRBPR), melena, hematemesis, and weight loss. He also denied jaundice, pruritis, confusion, abdominal swelling, and gastrointestinal bleeding. His weight was noted to be 254.8 lb. An April 2005 VA treatment record notes that the Veteran was seen for follow-up for his hepatitis C. He reported that his energy levels and joint pains had significantly worsened and that his mobility has been severely limited. He denied jaundice, pruritis, confusion, abdominal and lower extremity swelling, hematemesis, melena, and BRBPR. His weight was 243.6 lbs. It was noted that the Veteran is not a good candidate for hepatitis C treatment due to his significant medical comorbidities (congestive heart failure, coronary artery disease, and chronic obstructive pulmonary disease). It was noted that a 2003 liver biopsy showed stage two fibrosis. An August 2005 VA treatment record notes that there was no evidence of decompensated liver disease. A January 2006 VA examination report notes that the Veteran became overtly sick in 2000, at which time a diagnosis of hepatitis C was made. The condition was not treated due to some logistical issues, as well as the presence of coronary artery disease, splenectomy for hereditary spherocytosis, and chronic obstructive pulmonary disease (all of which were determined not to be secondary to the hepatitis). It was noted that the Veteran complained of progressive weakness and malaise, as well as poor appetite. The Veteran reported four incapacitating episodes during the past 12 months. In the past nine months, the Veteran has lost weight from 300 lbs. to 220 lbs, but the examiner felt that this is probably not secondary to his hepatitis, and is due to other issues such as possible lung cancer due to cigarette smoking. It was noted that the Veteran has not experienced abdominal pain, but has recurrent pain in his legs, hands, and feet most of the time. It was noted that he has arthralgias due to his hepatitis. On examination he had no overt ascites. There was no spider angiomata. The liver was palpable just below the rib margin and was not abnormal. He reported tenderness on palpation of the liver edge. There was no jaundice, icterus, or other physical abnormalities characteristic of hepatitis. There was no joint swelling. The most recent liver function tests, accomplished in April 2005, were normal. The impression was hepatitis C infection but with recent normal liver function tests and no chronic clinical evidence of cirrhosis or other liver dysfunction. The examiner felt that, due to the normal functioning of the Veteran's liver (as indicated by the most recent laboratory test results), the Veteran's fatigue and weakness are more likely caused by his chronic obstructive pulmonary disease and congestive heart failure, and not his hepatitis C. It was also noted that his recent weight loss, though not yet explained, was not considered secondary to his hepatitis C. An August 2008 VA examination report notes that the Veteran's abdomen was nontender. A March 2011 VA examination report notes that the Veteran has not had any physician prescribed bedrest/incapacitating episodes. Later in the same examination report it is noted that the Veteran has had four incapacitating episodes during the past 12 months due to his liver problems. The examiner noted that in the last nine months the Veteran has lost 80 pounds, but that this is probably not secondary to his hepatitis, but instead due to other issues still under investigation, such as the possibility of lung cancer due to cigarette smoking. It was noted that the Veteran has not experienced abdominal pain but he has recurrent pain in his legs hands, and feet most of the time. He also gets some swelling in these regions, especially the ankles and feet. It was noted that he is not employed. The Veteran reported that he has portal hypertension and is on blood pressure medication. He reported weakness, chronic daily fatigue and anorexia, but denied malaise and weight loss. He reported weight gain. He indicated that he has been instructed to avoid salt. He has problems with constipation but has no nausea or vomiting. He denied right upper quadrant pain and does not require continuous medication for his hepatitis C. There was no splenomegaly, ascites, hepatic encephalopathy, hemorrhage from varices, erosive gastritis, portal gastropathy, or persistent jaundice. He denied being refractory to treatment. Examination revealed soft, nontender, nondistended abdomen without hepatosplenomegaly. There was no guarding, no rebound, and bowel signs were normoactive. The impression was hepatitis C. A June 28, 2012 VA aid and attendance or housebound examination report indicates that the Veteran's abdomen was soft and the liver was palpable two cm below the right costal margin. Another June 28, 2012 VA examination report notes that the Veteran does not require continuous medication for controlling his liver conditions. The Veteran currently has signs or symptoms attributable to chronic or infectious liver disease. Specifically, the Veteran has near-constant and debilitating fatigue, malaise, and arthralgia. He has daily anorexia and he has weight loss. His condition results in other indications of malnutrition. He does not have nausea, right upper quadrant pain, or hepatomegaly. The examiner indicated that the Veteran has had six weeks or more of incapacitating episodes due to his liver conditions. He does not have signs or symptoms attributable to cirrhosis of the liver. He is not a liver transplant candidate and has never had injury to the liver. He also does not have any scars. Imaging studies were performed in March 2011 and laboratory tests were performed in February 2012. Moreover, a biopsy was performed in July 2003. The examiner stated that the Veteran's liver condition impacts his ability to work in that the hepatitis C arthritis would "impact his ability to work and therefore to wlak [sic]." In order to receive a higher 20 percent rating, it must be shown that there is daily fatigue, malaise, and anorexia (without weight loss or hepatomegaly), requiring dietary restriction or continuous medication; or that there are incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least two weeks, but less than four weeks, during the past 12-month period. Unfortunately, the medical evidence does not show daily fatigue, malaise and anorexia requiring dietary restriction or continuous medication prior to June 28, 2012. The medical evidence prior to the June 28, 2012 examination report reflects that the Veteran had not complained of daily fatigue or malaise. Although he complained of increased weakness and malaise at the January 2006 VA examination, the examiner felt that these symptoms were not due to the hepatitis C and were more likely due to the Veteran's chronic obstructive pulmonary disease and congestive heart failure. Additionally, while he lost weight between January 2003 and January 2006, the January 2006 VA examiner specifically found that the Veteran's weight loss was not etiologically related to his hepatitis C. Additionally, he actually had gained a significant amount of weight during the two years prior to November 2002. The Board finds that this evidence weighs against a finding of anorexia. Moreover, the medical evidence does not show that the Veteran was ever restricted in his diet. He did indicate that he was told to avoid salt, but this restriction is not listed in his medical records, nor is it noted to be related to his hepatitis C. Contrary to his hepatitis C requiring continuous medication, in January 2003 he indicated that he was interested in treatment but he said he was probably unable to regularly attend the appointments and in April 2005 he was told he was not a good candidate for hepatitis C treatment because of congestive heart failure, coronary artery disease, and chronic obstructive pulmonary disease. Similarly, at the January 2006 VA examination it was noted that the Veteran had not been receiving treatment for his hepatitis for logistical reasons and unrelated comorbidities. Notably, at the January 2006 examination, it was indicated that his liver function tests were normal. Finally, although the Veteran reported four incapacitating episodes at the January 2006 and March 2011 VA examinations, the Veteran did not report any incapacitating episodes otherwise, and the VA treatment records showing follow-up visits for hepatitis C through June 2012 do not reflect any treatment by a physician or hepatitis C symptoms severe enough to require bed rest. As such, there is no evidence of at least two weeks but less than four weeks of incapacitating episodes during the past 12- month period. In sum, the evidence does not meet the criteria for the next higher 20 percent rating for the Veteran's service-connected hepatomegaly with hepatitis C and cirrhosis for the time period prior to June 28, 2012. As of June 28, 2012 VA examination report, however, the evidence reflects that the Veteran was experiencing near-constant debilitating fatigue, malaise, and arthralgias. In order to receive a rating of 100 percent, it must be shown that the Veteran has near-constant debilitating symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain. In this regard, although the June 2012 VA examination report shows that the Veteran does not have nausea, vomiting or right upper quadrant pain at all, and that his anorexia was only described as daily, the June 2012 VA examination report clearly shows that the Veteran has near-constant debilitating fatigue, malaise, and arthralgias. The 100 percent rating under Diagnostic Code 7354 is not written in a manner that suggests a requirement that all of the symptoms listed be present. As such, the Board finds that as of June 28, 2012, the Veteran suffers from near-constant debilitating symptoms such as fatigue, malaise, and arthralgias, and a 100 percent rating is warranted beginning on June 28, 2012. Other Considerations According to VA regulation, in exceptional cases where schedular ratings are found to be inadequate, the RO may refer a claim to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for consideration of "an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. " 38 C.F.R. § 3.321(b)(1) (2013). An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) ; Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and it is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the Veteran's disability picture requires the assignment of an extraschedular rating. The Board has considered whether an extraschedular evaluation is warranted for the Veteran's service-connected hepatomegaly with hepatitis C and cirrhosis prior to June 28, 2012. However, evidence does not reflect that the available schedular evaluation prior to June 28, 2012 for the service-connected hepatomegaly with hepatitis C and cirrhosis is inadequate. A comparison between the level of severity and symptomatology of the Veteran's hepatomegaly with hepatitis C and cirrhosis shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. Moreover, there are higher schedular ratings for the hepatomegaly with hepatitis C and cirrhosis, but they are for symptoms which were not present in this case prior to June 28, 2012. Under these circumstances, referral for extraschedular consideration under 38 C.F.R. § 3.321(b)(1) is not warranted. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, for the time period prior to June 28, 2012 the Veteran has not argued, and the record does not otherwise reflect, that his service-connected hepatomegaly with hepatitis C and cirrhosis renders him totally unemployable such that a claim for TDIU has been reasonably raised. While the record reflects that the Veteran is unemployed, the VA examination reports do not suggest that his hepatomegaly with hepatitis C and cirrhosis renders him totally unemployable. Instead, the January 2006 VA examiner felt that the Veteran's liver was functioning within normal range and is therefore not the cause of most of his complaints. The examiner stated that the more likely cause of his fatigue and weakness is a combination of his chronic obstructive pulmonary disease and congestive heart failure. Similarly, at the April 2005 videoconference hearing, the Veteran stated that he had weekly symptoms of nausea, sweats, swelling, and pain. While the Veteran indicated that he was totally disabled and unable to work when questioned about his claim of entitlement to special monthly pension, he did not claim to be unable to work due to his service-connected hepatomegaly with hepatitis C and cirrhosis. Finally, his VA examinations (March 2011 and June 2012) conducted pursuant to his special monthly pension claim suggest that the Veteran is unemployable due to nonservice-connected disabilities and did not in any way suggest that the Veteran is unemployable due to his hepatomegaly with hepatitis C and cirrhosis. Accordingly, the Board concludes that a claim for TDIU has not been raised for the time period prior to June 28, 2012. For the time period beginning on June 28, 2012, the Board has granted a 100 percent rating for hepatomegaly with hepatitis C and cirrhosis. The Veteran has not filed a claim of entitlement to TDIU based upon any other service-connected disabilities and the only basis of a TDIU claim pursuant to Rice which could be part of the instant claim of entitlement to an increased rating for hepatomegaly with hepatitis C and cirrhosis, is a claim of entitlement to a TDIU based upon the argument that the Veteran is unable to secure or follow a substantially gainful occupation due to the service-connected hepatomegaly with hepatitis C and cirrhosis. Thus, because a 100 percent rating has been granted for hepatomegaly with hepatitis C and cirrhosis as of June 28, 2012, the question of whether the Veteran is entitlement to TDIU from June 28, 2012 to the present day based upon his service-connected hepatomegaly with hepatitis C and cirrhosis is rendered moot, and is therefore dismissed. In Bradley v. Peake, 22 Vet. App. 280, 294 (2008), the Court determined that a separate TDIU rating predicated on one disability (although perhaps not ratable at the schedular 100 percent level) when considered together with another disability separately rated at 60 percent or more could warrant special monthly compensation under 38 U.S.C.A. § 1114(s). Thus, the Court reasoned, it might benefit the Veteran to retain the TDIU rating, even where a 100 percent schedular rating has also been granted. See also Buie v. Shinseki, 24 Vet. App. 242, 248 (2010). In view of the issuance by the United States Court of Appeals for Veterans Claims of its decision in Bradley v. Peake, 22 Vet. App. 280 (2008), which takes a position contrary to the one reached in the precedent opinion VAOGCPREC 6-99, the General Counsel subsequently took action in November 2009 to withdraw the prior opinion. Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, the Court's decision in Bradley recognizes that a separate award of TDIU predicated on a single disability may form the basis for an award of special monthly compensation (SMC), which is contrary to the holdings in VAOGCPREC 6-99. In this case, as of June 28, 2012 the Veteran is service-connected for hepatomegaly with hepatitis C and cirrhosis, rated at 100 percent; bilateral hearing loss, rated at 30 percent; and hereditary spherocytosis with secondary hemolysis status post splenectomy, rated at 30 percent; dermatitis of the right ear, rated as noncompensable; and excision of warts, rated as noncompensable. The combined rating for the disabilities other than hepatomegaly with hepatitis C and cirrhosis is 50 percent. The evidence does not show and the Veteran does not contend that he is unemployable due to any service-connected disability. Indeed, as noted above, the Veteran did not file a claim of entitlement to TDIU and the only basis on which to infer a claim for TDIU pursuant to Rice is on the basis that the Veteran is unemployable due to his service-connected hepatomegaly with hepatitis C and cirrhosis. As a 100 percent rating has been granted for this disability as of June 28, 2012, the decisions in Bradley and Buie do not apply and as noted in Green, the claim for TDIU is moot as it pertains to the time period from June 28, 2012 to the present day. The Board also points out that a claim of entitlement to SMC is also not inferred because the Veteran's remaining service-connected disabilities are not separately ratable at 60 percent. ORDER Entitlement to a rating in excess of 10 percent for hepatomegaly with hepatitis C and cirrhosis for the time period prior to June 28, 2012, is denied. Entitlement to a 100 percent rating for hepatomegaly with hepatitis C and cirrhosis for the time period beginning on June 28, 2012, is granted, subject to the criteria governing the payment of monetary benefits. (CONTINUED ON NEXT PAGE) REMAND The Veteran claims that service connection is warranted for eye problems and arthritis because they are secondary to his service-connected hepatomegaly with hepatitis C and cirrhosis. Unfortunately, there is no medical opinion as to whether the Veteran's osteoarthritis of the right hand, right hip, right ankle, and right great toe metatarsophalangeal joint is/are aggravated by the service-connected hepatomegaly with hepatitis C and cirrhosis. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). Therefore, the June, July and August 2012 VA examination/opinion reports are inadequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes the effort to provide the Veteran with a medical examination, it must ensure that such exam is an adequate one). Consequently, a remand is required in order to obtain an opinion regarding aggravation in this regard. The Board also notes that the record reflects diagnosis of arthritis of the cervical and lumbar spine (according to the August 2012 VA opinion report). Therefore, an opinion as to whether these disabilities are caused or aggravated by the service-connected hepatomegaly with hepatitis C and cirrhosis is also necessary. With respect to the Veteran's claim for service connection for eye problems secondary to his hepatomegaly with hepatitis C and cirrhosis, although the March 2012 VA examination reports reflect that the periorbital edema is less likely as not due to his hepatitis C/hepatomegaly, the examiner did not provide an opinion as to whether the periorbital edema is aggravated by the Veteran's hepatomegaly with hepatitis C and cirrhosis. Moreover, although the examiner indicated that the Veteran may have mild amblyopia in his left eye which began in childhood, the examiner did not state whether such preexisting disability was clearly and unmistakably aggravated during service. As such, a remand is required in order to obtain such medical opinions. The Board also notes that a June 2013 VA treatment record from the Veteran's Virtual VA claims folder shows that the Veteran was to have eye surgery in July 2013. As these records may be relevant to the claim for service connection for eye problems, to include as secondary to service-connected hepatomegaly with hepatitis C and cirrhosis, they should be obtained on remand. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain copies of the Veteran's VA treatment records from all appropriate VA treatment facilities dating from June 2013 to the present, to specifically include any treatment records regarding any eye surgery in July 2013, and associate them with the claims file. 2. Return the claims file, to include a copy of this remand, to the March 15, 2011 VA examiner or the VA examiner who provided the July 2012 and August 2012 medical opinions, or a suitable substitute, and request that the examiner provide an opinion as to whether it is at least as likely as not (ie., a 50 percent or greater probability) that the Veteran's osteoarthritis of the right hand, degenerative changes of the right hip, and degenerative changes of the right great toe metatarsophalangeal joint is/are aggravated (permanently worsened beyond normal progression of the disorder) by his service-connected hepatomegaly with hepatitis C and cirrhosis. The examiner should also provide an opinion as to whether it is at least as likely as not (ie., a 50 percent or greater probability) that any osteoarthritis/degenerative joint disease of the cervical and lumbar spine and/or any other joint is/are caused or aggravated (permanently worsened beyond normal progression of the disorder) by his service-connected hepatomegaly with hepatitis C and cirrhosis. All opinions should be supported by a clear rationale, which should include a discussion of the specific evidence on which the opinion is based. If additional examination of the Veteran is necessary to provide the requested opinion, then such examination should be scheduled. 3. Return the claims file, to include a copy of this remand, to the March 2012 VA eye examiner or suitable substitute and request that the examiner provide an opinion as to whether it is at least as likely as not (ie., a 50 percent or greater probability) that the Veteran's periorbital edema is aggravated (permanently worsened beyond normal progression of the disorder) by his service-connected hepatomegaly with hepatitis C and cirrhosis. The examiner should also provide an opinion as to whether it is at least as likely as not (ie., a 50 percent or greater probability) that the Veteran's mild left eye amblyopia, which the examiner stated had its onset in childhood, was clearly and unmistakably aggravated during active service. All opinions should be supported by a clear rationale, which should include a discussion of the specific evidence on which the opinion is based. If additional examination of the Veteran is necessary to provide the requested opinion, then such examination should be scheduled. 4. The RO must notify the Veteran that it is his responsibility to report for the examinations and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). 5. After completing all appropriate development, the RO must readjudicate the issues on appeal. If any of the benefits sought on appeal remain denied, the Veteran and his representative must be furnished a supplemental statement of the case and be given the opportunity to respond thereto. The appeal must then be returned to the Board for appellate review. 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). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs