Citation Nr: 1340435 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 04-27 094 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for diabetes mellitus, including as secondary to service-connected hepatitis C, status post liver transplant. 2. Entitlement to an initial rating in excess of 40 percent for hepatitis C, status post liver transplant. REPRESENTATION Appellant represented by: Kathy A. Lieberman, Attorney WITNESSES AT HEARING ON APPEAL Appellant (the Veteran) and his spouse ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from September 1970 to September 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2002 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Newark, New Jersey. This appeal also arises from a December 2009 rating decision of the same RO. The Veteran and his spouse testified at the RO before the undersigned Veterans Law Judge in January 2010. A written transcript of this hearing has been associated with the claims file. In a June 2012 Board decision, service connection was denied for diabetes and an initial rating in excess of 40 percent for his hepatitis C. This decision was appealed to the U.S. Court of Appeals for Veterans Claims (Court). In February 2013, the Court issued an order granting a Joint Motion for Remand (Joint Motion), which had the effect of vacating the Board's June 2012 decision and returning these issues to the Board for further consideration. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Service Connection - Diabetes Mellitus The Veteran seeks service connection for diabetes, claimed as secondary to his service-connected hepatitis C. In its June 2012 denial, the Board weighed a November 2009 VA diabetes examination and an October 2009 private medical opinion and found the preponderance of the evidence to be against an etiological nexus between the service-connected hepatitis C and diabetes mellitus. The Court determined, however, that the Board erred in failing to consider a second November 2009 VA genitourinary examination, conducted by a different VA physician, in which the examiner stated the Veteran "most likely has prednisone-induced diabetes mellitus." The Veteran has asserted that the use of prednisone to treat his hepatitis C has resulted in diabetes. While this opinion is favorable to the Veteran's claim, this opinion, like the October 2009 private medical opinion, is not accompanied by a rationale; thus, its probative value is limited. Once 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). Therefore, remand of this issue is required to obtain a medical opinion which addresses the nexus between the service-connected hepatitis C and diabetes based on a sound medical rationale. Initial Rating - Hepatitis C The Veteran seeks an increased initial rating for service-connected hepatitis C. According to the Joint Motion, the Board did not advise the Veteran at his January 2010 personal hearing to describe the length of his incapacitating episodes resulting from hepatitis C, as such information was pertinent to his pending increased rating claim. See Procopio v. Shinseki, 26 Vet. App. 78 (2012). Thus, remand is required to afford the Veteran the opportunity to provide information as to how long his incapacitating episodes lasted. See 38 C.F.R. § 4.114, Diagnostic Code 7354 (2013). Next, in an October 2013 statement, the Veteran's representative stated that the Veteran continues to receive ongoing treatment at Bayshore Hospital, Meridian Health, and Jersey Shore Medical Associates/Dr. Marino. The representative alleged that while some private medical records have been obtained by VA, these records are incomplete and not all private records have been obtained by VA. Thus, remand is required to obtained the cited private medical treatment records. Finally, in the October 2013 statement, the representative asserts that the Veteran's hepatitis C has worsened since his most recent VA examination in January 2011. Where the record does not adequately reveal the current state of the claimant's disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination. See 38 U.S.C.A. § 5103A(d); Chotta v. Peake, 22 Vet. App. 80, 84 (2008). Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran and his representative with the criteria for an increased initial rating for hepatitis C and give them the opportunity to provide a description of the length of incapacitating episodes during the period on appeal. 2. Contact the Veteran and request the names, addresses, and proper authorizations for Bayshore Hospital, Meridian Health and Jersey Shore Medical Associates/Dr. Marino, as well as any other private, military, or VA medical care providers not already contacted who have treated his hepatitis C and/or diabetes. For any such source identified by the Veteran, contact that medical care provider and request the cited pertinent medical records. Any negative reply must be documented for the record. 3. Forward the claims file to the appropriate specialist to determine the etiology of the Veteran's diabetes mellitus. The Veteran need not be scheduled for physical examination unless such an examination is found necessary by the reviewing specialist. After review of the claims file, the examiner is requested to provide an opinion, with complete rationale, as to whether it is as least as likely as not (50 percent probability or higher) that the diabetes mellitus is due to or the result of, or otherwise aggravated by (permanently worsened beyond the natural progress of the disorder), hepatitis C, status post liver transplant, to include any medications or other treatment prescribed therein. The requested opinion must consider the October 2009 private examiner's opinion as well as both November 2009 VA examination reports. If the requested opinion cannot be provided without result to speculation, that should be so indicated, along with an explanation of why speculation is required. The medical rationale for any opinion expressed must be provided. 4. Schedule the Veteran for the appropriate VA examination to determine the current nature and severity of the service-connected hepatitis C. The claims folder must be made available to and reviewed by the examiner. All indicated tests and studies should be accomplished and the findings then reported in detail. Following a physical examination of the Veteran and a review of the claims folder, the examiner should specifically address the following: the presence of daily fatigue, malaise, and anorexia (with or without weight loss or hepatomegaly), or incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) (An "incapacitating episode" means a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician.). The examiner should obtain a complete history from the Veteran regarding the hepatitis C condition to include a description of the length of any reported incapacitating episodes. The duration and frequency of any incapacitating episodes must be noted. Any other impairment resulting from hepatitis C must also be noted. 5. After undertaking any additional development deemed appropriate, and giving the appellant full opportunity to supplement the record, adjudicate the Veteran's pending claims for service connection for diabetes and for an increased initial rating for hepatitis C in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be afforded the applicable opportunity to respond before the record is returned to the Board for further 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). _________________________________________________ K. J. ALIBRANDO 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).