Citation Nr: 1320690 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 08-05 022 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to service connection for retinal occlusion of the left eye, claimed as secondary to an acquired psychiatric disorder (including posttraumatic stress disorder). 2. Entitlement to service connection for hepatitis A. 3. Entitlement to service connection for hepatitis C. 4. Entitlement to an increased rating for chronic serum-type hepatitis (hepatitis B), evaluated as noncompensably disabling prior to January 6, 2012, and as 40 percent disabling thereafter. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The Veteran served on active duty from December 1969 to December 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal of a March 2007 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. Good or sufficient cause having been shown, the Veteran's appeal has been advanced on the Board's docket under the provisions of 38 U.S.C.A. § 7107 (West 2002) and 38 C.F.R. § 20.900(c) (2012). This case was previously before the Board in June 2010 and December 2011, on which occasions it was remanded for additional development. Subsequent to the December 2011 remand, the Appeals Management Center (AMC), in a November 2012 rating decision, granted entitlement to service connection for major depressive disorder with panic disorder, evaluated as 30 percent disabling from October 10, 2006, and 100 percent disabling effective from January 17, 2012. Accordingly, the issue of entitlement to service connection for an acquired psychiatric disorder, which was formerly on appeal, is no longer before the Board. The Board further notes that, in a rating decision of January 2013, the AMC granted entitlement to a 40 percent evaluation for chronic, serum-type hepatitis (hepatitis B), effective from January 6, 2012. Accordingly, the issue of entitlement to an increased rating for hepatitis B has been recharacterized to take into account that staged rating. This case was most recently before the Board in March 2013, at which time it was remanded for additional development. The case is now, once more, before the Board for appellate review. Finally, for reasons which will become apparent, this appeal is once again being REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. VA will notify you if further action is required on your part. REMAND At the time of the Board's prior remand in December 2011, it was requested that, following appropriate VA examinations, an opinion be provided as to whether any diagnosed acquired psychiatric disorder at least as likely as not had its origin during, or was in some way the result of, the Veteran's period of active military service. If and only if it was determined that the Veteran suffered from a chronic acquired psychiatric disorder which was in some way related to service, an additional opinion was requested as to whether the Veteran's longstanding drug and/or alcohol abuse was causally related to that acquired psychiatric disorder. Finally, were it to be determined that the Veteran's longstanding polysubstance abuse was in some way causally related to a service-related acquired psychiatric disorder, an additional opinion was requested as to whether the Veteran's hepatitis A and C, as well as his left eye retinal occlusion, were causally related to that polysubstance abuse. Significantly, following a VA psychiatric examination in January 2012, it was determined that the Veteran was suffering from a major depressive disorder with associated panic disorder secondary to service-connected hepatitis B, with the result that service connection was awarded for that psychiatric disability. No opinion, however, was ever offered as to whether the Veteran's longstanding polysubstance abuse was in some way related to that psychiatric disability. Nor was any opinion provided regarding whether the Veteran's hepatitis A and C were in some way related to the aforementioned polysubstance abuse. Accordingly, the March 2013 remand directed that the Veteran be afforded an additional VA psychiatric examination, as well as other VA examinations by appropriate specialists, in order to more accurately determine the exact nature and etiology of his hepatitis A and C, as well as the current severity of his hepatitis B. Following completion of the psychiatric examination, it was requested that the examiner specifically address whether the Veteran's longstanding drug and/or alcohol abuse was at least as likely as not proximately due to, the result of, or aggravated by his service-connected major depressive disorder with panic disorder. If it was determined that the Veteran's longstanding polysubstance abuse was causally related to his major depressive disorder with panic disorder, an additional opinion was requested addressing whether the Veteran's hepatitis A and C were causally related to that polysubstance abuse. Finally, following completion of any necessary examination, the remand directed that an appropriate examiner provide a detailed review of the Veteran's pertinent medical history and current complaints, as well as the nature and extent of his service-connected hepatitis B. In so doing, the examiner was to specifically address complaints of fatigue, malaise, and anorexia, as well as weight loss and/or incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). Following a VA psychiatric examination in April 2013 conducted in response to the Board's remand request, a VA psychologist opined that the Veteran's substance abuse had been aggravated by his service-connected major depressive disorder, and that his substance abuse and hepatitis A and C were at least as likely as not "causally related." However, following a VA hepatitis, cirrhosis and liver examination conducted that same month, it was the opinion of a VA nurse practitioner that, while the Veteran had been exposed to hepatitis C, and therefore had positive antibodies, he had neither a viral load, nor evidence of chronic active hepatitis C. Significantly, no opinion was offered as to the nature and etiology of the Veteran's claimed hepatitis A. Moreover, following a review of the Veteran's claims folder, clinical files, and medical records in May 2013, an AMC Medical Officer offered her opinion that it was "mere speculation" that the Veteran's liver dysfunction had been diagnosed as hepatitis B or C, and that it was "less likely than not" that the Veteran's claimed liver dysfunction included the diagnosis of hepatitis A. Significantly, the May 2013 opinion appears to have been provided by a podiatrist, who, presumably, would have neither extensive knowledge of nor experience in the field of hepatology. Indeed, podiatric medicine is the branch of medicine devoted to the study of diagnosis, medical and surgical treatment of disorders of the foot, ankle, and lower extremity. Dorland's Illustrated Medical Dictionary, 1468 (30th ed. 2003). The Board sees nothing in this definition that suggests that podiatrists treat or comment on the etiology of hepatitis. See Black v. Brown, 10 Vet. App. 279, 284 (1997). Under the circumstances, the Board is of the opinion that an additional VA examination would be appropriate prior to a final adjudication of the Veteran's claims for service connection. Finally, inasmuch as the issue of entitlement to an increased rating for hepatitis B is inextricably intertwined with the issues of entitlement to service connection for hepatitis A and C, that issue will likewise undergo further development as part of the current remand. Accordingly, in light of the aforementioned, the case is once again REMANDED to the RO/AMC for the following actions: 1. Any pertinent VA or other inpatient or outpatient treatment records dated since May 2013 should be obtained and incorporated in the claims folder. The Veteran should be requested to sign the necessary authorization for release of any private medical records to VA. If the RO/AMC cannot locate such records, the RO/AMC must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO/AMC must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. Thereafter, the Veteran should be afforded a VA gastroenterological examination by a specialist in liver diseases in order to more accurately determine the exact nature and etiology of his claimed hepatitis A and C, as well as the current severity of his hepatitis B. The Veteran must be given adequate notice of the date and place of the examination. The Veteran must be advised that failure to report for a scheduled VA examination without good cause may have an adverse effect on his claims. See 38 C.F.R. § 3.158, 3.655 (2012). In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to his last known address. Moreover, it should be indicated whether any notice sent was returned as undeliverable. As regards the requested examination, all pertinent symptomatology and findings should be reported in detail, and all appropriate studies (including full laboratory studies) should be performed. Following completion of the hepatology examination, the examining hepatologist must offer his or her opinion as to whether the Veteran currently has, or has ever had, hepatitis A and/or C. Should it be determined that the Veteran has had, or currently has, hepatitis A and/or C, an additional opinion is requested as to whether the Veteran's hepatitis A and/or C are at least as likely as not causally related to his longstanding polysubstance abuse. Finally, and in accordance with the latest VA worksheets for rating hepatitis B, the examining hepatologist should provide a detailed review of the Veteran's pertinent medical history and current complaints, as well as the nature and extent of his service-connected hepatitis B. In so doing, the examining hepatologist must specifically address complaints of fatigue, malaise, and anorexia, as well as weight loss and/or incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) due exclusively to the Veteran's service-connected hepatitis B, as opposed to his nonservice-connected chronic pancreatitis. If and only if it is determined that the Veteran has in the past or currently suffers from hepatitis A and/or C which are in some way causally related to his longstanding polysubstance abuse, the Veteran should be afforded an additional psychiatric examination by a psychiatrist who has not heretofore seen or examined him. Following completion of that examination, the examining psychiatrist must specifically address whether the Veteran's longstanding drug and/or alcohol abuse is at least as likely as not proximately due to, the result of, or aggravated by his service-connected major depressive disorder with panic disorder. A complete rationale must be provided for any opinion offered, and all information and opinions, once obtained, must be made a part of the Veteran's claims folder. The claims folder and a separate copy of this REMAND must be made available to and reviewed by the examiners prior to completion of the examinations. In addition, the examiners must specify in their reports that the claims file and Virtual VA records have been reviewed. 3. The RO/AMC must then review the examination reports to ensure that they are in complete compliance with the directives of this REMAND, and that the examiners have documented their consideration of all records contained in Virtual VA. If the reports are deficient in any manner, the RO/AMC must implement corrective procedures. 4. The RO/AMC must then readjudicate the Veteran's claims of entitlement to service connection for hepatitis A and C, as well as his claim for entitlement to an increased rating for hepatitis B. Should any benefit sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case which contains notice of all relevant action taken on the claims for benefits since May 2013. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome in this case. The Veteran need take no action unless otherwise notified. The issue of entitlement to service connection for retinal occlusion of the left eye will be held in abeyance pending completion of the development described above. 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). _________________________________________________ DEREK R. BROWN 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).