Citation Nr: 1336116 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 07-34 004 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for hepatitis C. 2. Entitlement to a compensable rating for cirrhosis. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant, spouse, and friend ATTORNEY FOR THE BOARD S.J. Janec, Counsel INTRODUCTION The Veteran served on active duty from November 1971 to November 1975. This appeal comes before the Board of Veterans' Appeals (Board) from December 2006 and August 2007 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO) that awarded service connection and assigned a 0 percent rating for hepatitis C with cirrhosis and denied a claim for a total disability rating based on individual unemployability due to service-connected disability. In July 2007, the RO awarded an initial increased rating of 10 percent for hepatitis C and assigned a separate 0 percent rating for cirrhosis. In August 2009, the Veteran was provided a videoconference hearing before the undersigned Veterans Law Judge. In November 2009, the Board remanded the Veteran's claims for additional development. In December 2011, the Board granted entitlement to a total disability rating based on individual unemployability due to service-connected disability and remanded the other two claims for further development. In November 2009 and December 2011 decisions, the Board referred a claim for service connection for posttraumatic stress disorder (PTSD) to the RO for appropriate action. However, it does not appear that any action has been taken on that claim. Therefore, that claim is again referred to the RO. In addition, the Board finds that the record reasonably raises a claim for service connection for hypertension, secondary to service-connected diabetes. However, as that claim has not been developed for appellate review, the Board refers that claim to the RO for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, D.C. REMAND After the Board's December 2011 remand, the RO sent the Veteran a letter asking him to identify any private medical providers and complete a release form so those records could be obtained. He responded in December 2011 that he did not have any other information to support his claims for increased ratings for hepatitis C and cirrhosis. However, a review of the Veteran's VA medical reports in his Virtual VA file indicated that in April 2010 at a urology consult, the Veteran gave a history of hepatitis C that was followed by a private sector hepatologist and that it was treated with Interferon and Pegasus two years ago. Since the criteria for rating hepatitis C specifically contemplate the use of continuous medication to support a higher rating, the Board finds that those records are relevant to the Veteran's claim. The duty to assist in the development and adjudication of a claim is not a one-way street. A Veteran cannot passively wait in circumstances where he may or should have evidence that is essential in obtaining evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). The Veteran clearly responded that he did not have additional evidence to support his claim. However, his medical records contradict that report. Accordingly, an attempt to obtain the specific records should be made before a final decision is issued by the Board. Finally, due to the passage of time, the Board finds that a new examination is warranted to determine the current nature, extent, severity, and manifestations of the Veteran's service-connected hepatitis C and cirrhosis. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); Palczewski v. Nicholson, 21 Vet. App. 174 (2007). Ongoing VA medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); 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 the names and addresses of all medical care providers who treated the Veteran for cirrhosis and hepatitis C since August 2012, including the private hepatologist noted in the April 2010 VA urology consult. After securing any necessary releases, obtain those records. 2. Obtain any VA medical records, not already of record, and associate them with the claims file. 3. Schedule the Veteran for a VA examination to assess the current severity of hepatitis C and cirrhosis. The examiner must review the claims folder and that review must be noted in the report. All indicated tests and studies should be performed, and all findings should be set forth in detail. The examiner should describe all symptoms and manifestations attributable to the hepatitis C and cirrhosis in accordance with the relevant rating criteria. 4. Then readjudicate the claims. If the decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claim to the Board. 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). _________________________________________________ Harvey P. Roberts 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) (2013).