Citation Nr: 1330199 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 11-04 097 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for anxiety disorder, to include as secondary to PTSD and/or service-connected hepatitis C (HCV). 3. Entitlement to service connection for an acquired psychiatric disorder, other than PTSD and anxiety disorder. 4. Entitlement to service connection for bilateral hearing loss. 5. Entitlement to service connection for tinnitus. 6. Entitlement to restoration of a 20 percent disability rating for service-connected hepatitis C (HCV), to include the question of propriety of a reduction in a disability rating to 10 percent disabling for the period from November 1, 2009. 7. Entitlement to an increased disability rating for a service-connected hepatitis C in excess of 20 percent. 8. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESSES AT HEARING ON APPEAL Veteran and daughter ATTORNEY FOR THE BOARD H. Hoeft, Counsel INTRODUCTION The Veteran served on active duty from November 1968 to November 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from August 2009 (hepatitis C rating reduction), May 2009 (PTSD), and May 2010 (hearing loss and tinnitus) rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. The Veteran was afforded a hearing in June 2011 before the undersigned Veterans Law Judge. The hearing transcripts are associated with the record. In light of the psychiatric diagnoses being claimed and the diagnoses on file, to include PTSD, the appeal involving service connection for a psychiatric disorder has been recharacterized as encompassing both a claim for PTSD, a claim for an anxiety disorder, and a claim for a psychiatric disability other than PTSD, as reflected on the title page. See Clemons v. Shinseki, 23, Vet. App. 1 (2009). The Board notes that the matters addressed by the RO in this case were limited to the propriety of the reduction of the disability rating for the hepatitis C disability from 20 percent to 10 percent; however, the evidence that was cited by the RO in support of the reduction (a VA examination report) arose from the Veteran's February 2009 claim for an increased disability rating. Moreover, in his hearing testimony and in other statements of record, the Veteran essentially indicated that he is seeking an increased rating in addition to restoration of the 20 percent rating. Accordingly, the Board has characterized the appeal as also involving an increased rating claim in addition to the issue of restoration of the 20 percent rating. As for a procedural explanation as to how the increased rating issue is on appeal, notwithstanding that it was not listed as a separate issue during RO adjudication, the August 2009 rating decision constitutes adjudication and implicit denial of the increased rating issue in excess of 20 percent; by the reduction action, the RO also implicitly denied an increased rating in excess of 20 percent. The Veteran's April 2010 notice of disagreement to the reduction is sufficient to constitute a notice of disagreement with the implicit denial of increased rating in excess of 20 percent. The January 2011 statement of the case, which styled the issue on appeal as one for an increased rating, provided the applicable rating criteria for hepatitis C, summarized the relevant evidence that included the Veteran's reported symptoms and VA examination reports, applied the schedular rating criteria to the findings, and, in making made the finding that the criteria for a 20 percent rating was not warranted, implicitly found that the criteria for a rating higher than 20 percent had not been met. The Veteran's timely substantive appeal in March 2011 was sufficient to place the issue of increased rating on appeal. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The issues of entitlement to service connection for cannabis/drug dependency as secondary to service-connected hepatitis C, and whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for bilateral knee/leg conditions as secondary to hepatitis C, have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them and they are referred to the AOJ for appropriate action. The issues of entitlement to service connection for an acquired psychiatric disorder, other than PTSD and anxiety disorder; entitlement to service connection for bilateral hearing loss; entitlement to service connection for tinnitus; entitlement to an evaluation in excess of 20 percent for hepatitis C; and entitlement to TDIU, 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. The evidence of record establishes that the Veteran's currently diagnosed PTSD is due to his fear of hostile military activity while serving in the Republic of Vietnam. 2. The evidence of record establishes that the Veteran's anxiety disorder is related to his service-connected hepatitis C and PTSD. 3. A July 2004 rating decision established service connection for hepatitis C and assigned a 20 percent evaluation, effective October 21, 2003; a May 2007rating decision continued the 20 percent rating. 4. A May 2009 rating decision proposed to reduce the evaluation from 20 percent to 10 percent. In a May 2009 letter, the Veteran was notified of the proposed reduction, that he had 30 days to request a hearing, and that he had 60 days to submit additional evidence. 5. An August 2009 rating decision reduced the evaluation from 20 percent to 10 percent, effective November 1, 2009. The 20 percent rating was in effect for more than five years. 6. The August 2009 decision was based on evidence that did not, by a preponderance of the evidence, indicate sustained material improvement in hepatitis C that was reasonably certain to continue under the ordinary conditions of life. CONCLUSIONS OF LAW 1. PTSD was incurred in active military service. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.304, 4.125 (2012); 3.304(f) (3) (July 13, 2010). 2. Anxiety disorder is proximately due to or caused by the Veteran's service-connected hepatitis C and PTSD. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2012). 3. Reduction of the disability rating for hepatitis C, from 20 percent to 10 percent was improper, and the criteria for restoration of a 20 percent rating for hepatitis C from November 1, 2009 have been met. 38 U.S.C.A. §§ 1155 , 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.105, 3.159, 3.343, 3.344, 4.1-4.14, 4.114, Diagnostic Code 7354 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102 , 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). As the Board is granting in full the benefit sought on appeal with respect to the restoration issue, service connection for PTSD, and service connection for anxiety disorder, the claims are substantiated, and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362, 367-368 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004 (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden /Caluza element is through a demonstration of continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); 38 C.F.R. § 3.303(b). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. § 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a). The Board notes that psychoses are listed among the "chronic diseases" under 38 C.F.R. § 3.309(a). However, none of the diagnoses of record are classified as psychoses. See 38 C.F.R. § 3.384 (2012). Thus, the "chronic disease" rules are not for application here. See 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013). Secondary service connection may be granted for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection includes the concept of aggravation of a nonservice-connected disability by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). In October 2006, 38 C.F.R. § 3.310(a) was amended to conform with Allen, additionally, other substantive changes were made. VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). PTSD VA recently amended the provisions of 38 C.F.R. § 3.304 applicable to PTSD claims. This amendment is expressly applicable to all claims pending before the Board on July 13, 2010. The amended regulation directs, in pertinent part, that service connection for posttraumatic stress disorder requires medical evidence diagnosing the condition in accordance with § 4.125(a) of this chapter; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. The following provisions apply to claims for service connection of posttraumatic stress disorder diagnosed during service or based on the specified type of claimed stressor: (1) If the evidence establishes a diagnosis of posttraumatic stress disorder during service and the claimed stressor is related to that service, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. (2) If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. (3) If a stressor claimed by a veteran is related to the Veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of posttraumatic stress disorder and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304(f). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a) (West 2002); 38 C.F.R. § 3.303(a) (2012); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F. 3d 131 (Fed. Cir. 2009). The Veteran contends he has PTSD as result of especially traumatic events ("stressors") that occurred during the course of his military service. Service Personnel Records confirm that the Veteran was deployed to the Republic of Vietnam where he served as an electrician with an Engineer Battalion from 1969 to 1970. As to his stressors, the Veteran has credibly testified that he was exposed to occasional mortar attacks and witnessed dead/decapitated bodies. He described one incident where an RPG exploded directly in front of his truck and another incident where the enemy was trying to blow a bridge they were attempting to cross. On at least one occasion, when his convoy was fired upon, the Veteran stated that a fellow soldier jumped out of his truck and was shot. He also reported that his duties (while being attached to an Engineer Battalion) included searching for mines and land clearing. He stated that these events caused him to fear for his life. See Hearing Transcript, generally. In this case, the Board finds that the Veteran's reported stressors are consistent with the places, types, and circumstances of his service in Republic of Vietnam. For example, as the Veteran was attached to an Engineer Battalion, is entirely plausible, if not very likely, that his duties included land clearing/searching for mines. Such stressors also relate to a fear of hostile military or terrorist activity as the Veteran reported that he feared for his life when he engaged in these duties/activities. The Board has no reason to doubt the credibility of his statements; they have been consistently reported throughout the record and there is no evidence which expressly contradicts them. Thus, the Veteran's lay testimony confirms his stressors. 38 C.F.R. § 3.304(f)(3); See also 38 U.S.C.A. § 1154(a). The remaining question for consideration here is whether the Veteran's claimed stressor(s) is adequate to support a diagnosis of PTSD, and whether his symptoms are related to the claimed stressor. 38 C.F.R. § 3.3.4(f)(3). The Veteran underwent a VA examination in September 2010, at which time the examiner diagnosed chronic PTSD and stated that his "mild symptoms of PTSD" appeared to be related to his experiences in the military. Specific stressors cited by the VA examiner included almost being hit by an RPG and witnessing a fellow soldier being shot after coming under attack in the convoy. Based on the foregoing, the examiner stated that the Veteran did meet the criteria for fear of terrorist and military activity and that his PTSD "should be service-connected." The Board finds that, given the Veteran's credible statements, his established stressors, and the medical opinion confirming that the claimed stressors are adequate to support a diagnosis of PTSD, the Board finds that the Veteran's claim for entitlement to service connection for PTSD must be granted. 38 C.F.R. § 3.304(f) (2012). Entitlement to service connection for anxiety disorder, to include as secondary to PTSD and/or service-connected hepatitis C At the time of the Veteran's September 2010 VA PTSD examination, the examiner also provided a separate diagnosis of anxiety disorder. The Veteran had specifically reported being isolated and socially avoidant as a result of his service-connected hepatitis C. The examiner opined that the anxiety disorder secondary to his service-connected hepatitis C and PTSD. In light of the diagnosis of anxiety disorder and the September 2010 VA physician's opinion that the Veteran's anxiety disorder and anxiety symptoms are both secondary to PTSD and service-connected hepatitis C, and the absence of any evidence to the contrary, service connection for anxiety disorder, as secondary to hepatitis C and PTSD, must also be granted. 38 C.F.R. § 3.310. Reduction - Hepatitis C There is no question that a disability may be reduced; however, the circumstances under which rating reductions can occur are specifically limited and carefully circumscribed by regulations promulgated by the Secretary. Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992). The provisions of 38 C.F.R. § 3.105 apply to rating reductions. 38 C.F.R. § 3.105(e) requires that, when a reduction in evaluation of a service-connected disability is considered warranted, and a reduction will result in a decrease in payment of compensation benefits being made, a rating proposing reduction will be prepared setting forth all material facts and reasons. The beneficiary will be notified and furnished detailed reasons therefore and given 60 days for presentation of additional evidence to show that compensation payments should be continued at the current level. If additional evidence is not received within that period, a final rating action will be taken and the award will be reduced effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. Additionally, under 38 C.F.R. § 3.105(i), the advance written notice concerning a proposed rating reduction must inform the beneficiary that he has a right to a predetermination hearing provided that a request for such a hearing is received by VA within 30 days from the date of the notice. The procedural framework and safeguards set forth in 38 C.F.R. § 3.105 governing rating reductions are required to be followed by VA before it issues any final rating reduction. See Brown v. Brown, 5 Vet. App. 413, 418 (1993). The Veteran does not contend, and the evidence does not reflect, any failure in compliance with the procedural requirements for rating reductions. The proper procedure was followed for effectuating a reduction in this matter. The requirements for reduction of ratings in effect for five years or more are set forth at 38 C.F.R. § 3.344(a) and (b), which prescribe that only evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations, can justify a reduction; these provisions prohibit a reduction on the basis of a single examination. See Brown, 5 Vet. App. at 417-18. With respect to other disabilities that are likely to improve (i.e., those in effect for less than five years), re-examinations disclosing improvement in disabilities will warrant a rating reduction. 38 C.F.R. § 3.344(c). Specifically, it is necessary to ascertain, based upon a review of the entire recorded history of the condition, whether the evidence reflects an actual change in disability and whether examination reports reflecting change are based upon thorough examinations. In addition, it must be determined that an improvement in a disability has actually occurred and that such improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. See Brown, 5 Vet. App. at 420-421 (citing 38 C.F.R. §§ 4.1 , 4.2, 4.10 and 4.13); 38 C.F.R. 3.344(c) . In determining whether a reduction was proper, the Board must focus upon evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had actually improved. Cf. Dofflemyer, 2 Vet. App. at 281-282. It should be emphasized, however, that such after-the-fact evidence may not be used to justify an improper reduction. As to the above, under 38 C.F.R. § 3.344(a), the pertinent disability rating must have continued for five years or more before the criteria in paragraphs (a) and (b) of that section become applicable. Here, since the 20 percent evaluation had been in effect since October 2003 and reduced to 10 percent in August 2009, effective November 1, 2009, it had been in effect for the requisite period of time (i.e., more than 5 years). As such, the provisions of 38 C.F.R. § 3.344(a) and (b) are applicable in this instance. Rating reductions necessarily involve a comparative analysis of the evidence utilized to establish the level of disability prior to the proposed reduction, and the evidence which serves as the basis for the proposed reduction. The evidence of record must demonstrate improvement in the level of disability and that such improvement will likely continue. A reduction may not be based solely on a determination that the schedular criteria for the lower rating are more appropriate. In this case, prior to the reduction, the Veteran's hepatitis C was rated as 20 percent disabling under Diagnostic Code 7354. Under this Diagnostic Code, a 20 percent rating is warranted for hepatitis C manifested by daily fatigue, malaise, and anorexia, (without weight loss or hepatomegaly), requiring dietary restriction or continuous medication 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 two weeks, but less than four weeks, during the past 12-month period. After the reduction, the Veteran's hepatitis C was rated as 10 percent disabling under Diagnostic Code 7354; a 10 percent rating is warranted under this Diagnostic Code when hepatitis C is manifested by 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. For purposes of evaluating conditions under Diagnostic Code 7354, "incapacitating episode" means a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician. 38 C.F.R. § 4.114, Diagnostic Code 7354, Note (2). For the purposes of evaluating conditions in § 4.114, the term "minor weight loss" means a weight loss of 10 to 20 percent of the individual's baseline weight, sustained for three months or longer. "Baseline weight" means the average weight for the two-year-period preceding onset of the disease. 38 C.F.R. § 4.112 (2012). By way of history, service connection for infectious/viral hepatitis was granted in a January 1973 rating decision, at which time a 0 percent evaluation was assigned, effective November 1971. In a July 2004 rating decision, the RO determined that the Veteran's infectious/viral hepatitis was a forerunner, or precursor, to his currently diagnosed hepatitis C. As such, the RO granted a separate rating for hepatitis C, and assigned a 20 percent evaluation under Diagnostic Code7354, effective October 2003. This rating was based on a June 2003 VA examination which showed no complaints of abdominal pain, jaundice, weight loss, or weight loss; however, contemporaneous VA treatment records reflected that he began Ribavirin and Pegasys (Interferon) treatment for hepatitis C in October 2003. In a July 2004 VA Infectious Diseases note, the Veteran reported that he had lost over 35 pounds since starting Ribavirin and Pegasys treatment. He endorsed myalgias and arthralgias that lasted approximately 2-3 days after Interferon injection. The Veteran completed his course of Ribavirin and Pegasys treatment in 2004. In December 2006, the Veteran submitted a claim for an increased rating, which was denied in a May 2007 rating decision (note: the Veteran never appealed that determination). The RO continued the 20 percent evaluation based on a February 2007 VA examination report which showed that the Veteran had completed his course of Ribavirin and Pegasys treatment in 2004; the Veteran had denied abdominal pain, nausea, fatigue, incapacitating episodes, and abdominal swelling/edema. It was noted that he had been treated by rheumatology with low-dose prednisone for hepatitis C-related arthralgias. Objectively, his weight was stable and the hepatitis C viral load was undetectable. The diagnosis was chronic hepatitis C infection. An additional VA examination was conducted in May 2008, at which time the Veteran endorsed one episode of rectal bleeding, and denied abdominal pain, nausea, or vomiting. He did endorse chronic aches all over his body, especially in the knees, ankles, wrists, hands, and fingers. He also endorsed anorexia. He denied any hematemesis or history of varices. He stated that he felt fatigued and that he was not longer able to run due to weakness. After two or three steps, his knees would crack and his shoulders hurt. He gained approximately 8 pounds over the past year. Objectively, the hepatitis C viral load was undetectable. In February 2009, the Veteran submitted the current claim for an increased rating. He underwent a VA examination in March 2009, at which time he denied abdominal, abnormal appetite, incapacitating episodes, varices, emesis, and hematemesis. He endorsed feeling fatigued and reported nausea with his medication. The Veteran reported that his weight dropped from 190 pounds to 140 after Interferon treatment. He also noted current treatment for arthralgia/joint pain due to hepatitis C. The examiner noted that the Veteran had a history of bilateral knee osteoarthritis and meniscal tear of the right knee. The pertinent diagnosis was hepatitis C infection, with no functional impairment and undetectable viral load. Notably, the March 2009 VA examiner used the same laboratory findings as reported in the May 2008 VA examination. In other words, the Veteran did not undergo additional/new blood tests as part of the March 2009 VA examination. Additionally, it appears the March 2009 was conducted primary for purposes of obtaining an etiology opinion for a then-pending claim of a bilateral leg condition as secondary to hepatitis C (new and material evidence); this claim was denied in the May 2009 rating decision, but was not appealed by the Veteran. In any event, the March 2009 examiner opined that the Veteran's bilateral leg condition was not secondary to hepatitis C. Based on the results of the March 2009 VA examination, the RO proposed to reduce the disability rating for hepatitis C to 10 percent. This proposal was made in a May 2009 rating decision. In an August 2009 rating decision, the RO implemented the reduction to 10 percent, effective November 1, 2009. After a review of the all of the evidence in this case, the Board finds that reduction of the disability rating for hepatitis C from 20 percent to 10 percent was not proper, and a restoration of the 20 percent rating is warranted. This is because the preponderance of the evidence does not demonstrate sustained material improvement in the hepatitis C that is reasonably certain to be maintained under the ordinary conditions of life, as is required when an evaluation is in effect for over five years. The June 2003 VA examination and contemporaneous VA treatment records showed that the Veteran was undergoing Interferon therapy for treatment of his hepatitis C from 2003 to 2004; he complained of occasional arthralgias and myalgias during that time period, but denied nausea and fatigue symptoms. The February 2007, May 2008, and March 2009 VA examinations actually show an increase in chronic symptoms such as arthralgias and myalgias ("chronic aches all over body, " joints cracking and painful), and new symptoms of anorexia and severe fatigue ("unable to run anymore because he feels so weak"). Based on the foregoing, the Veteran's hepatitis C does not show sustained material improvement reasonably certain to be sustained under ordinary life conditions; rather it shows a chronic hepatitis C infection with ongoing (if not, daily) and seemingly progressive symptoms such as nausea, fatigue, anorexia, and extensive arthralgia. Accordingly, restoration of the 20 percent evaluation is warranted. The Board notes that the Veteran has submitted both written and oral argument in response to the proposal to reduce the rating to 10 percent. He noted that he had lost a large amount of weight after going on Interferon therapy and that the fluctuations in his weight had left him with multiple joint problems. He also reported that he was nauseous every morning. The Veteran is competent to describe his symptoms, and his account further undermines the determination that his disability had actually improved at the time the reduction was made and whether there was an improvement in the Veteran's ability to function under the ordinary conditions of life and work. As noted above, the assertion that the criteria for a 10 percent evaluation may be more appropriate to the Veteran's symptoms is irrelevant in the context of a reduced rating. As the evidence does not show that there has been actual improvement in the Veteran's hepatitis C, the Board finds that restoration of the 20 percent rating for this disability is warranted. ORDER Entitlement to service connection for PTSD is granted, subject to the applicable regulations concerning the payment of monetary benefits. Entitlement to service connection for anxiety disorder as secondary to hepatitis C and PTSD is granted, subject to the applicable regulations concerning the payment of monetary benefits. Restoration of a 20 percent disability rating for the service connected hepatitis C disability is granted. REMAND 1. Obtain updated VA treatment records The most recent VA treatment records contained in the claims file (excluding VA examinations) are dated in January 2007. Updated treatment records from the VA Medical Center (VAMC) in East Orange, New Jersey, and the Brick, New Jersey, Community Based Outpatient Clinic (COBC) dated from January 2007 should be associated with the claims folder or Virtual VA. Bell v. Derwinski, 2 Vet. App. 611 (1992). 2. Obtain SSA records The Veteran has indicated that he is in receipt of disability benefits from the Social Security Administration (SSA). (See Hearing Transcript and July 2009 VA Mental Health Note). The Court has held that where there is notice the Veteran is receiving SSA disability benefits VA has a duty to acquire a copy of the decision granting such benefits and the supporting medical documents when there exists a reasonable possibility that the records could help the Veteran substantiate the claim for benefits. Murincsak v. Derwinski, 2 Vet. App. 363, 372-3 (1992); see also Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In order to ensure a complete record, the Veteran's SSA records should be associated with the claims folder or Virtual VA. 3. Service Connection -An Acquired Psychiatric Disorder, Other Than PTSD and Anxiety Disorder In July 2011, the Veteran submitted non-duplicative VA mental health treatment records showing diagnoses of PTSD and depression "related to the Vietnam war." See, e.g., August 2010 Mental Health Note. The evidence was submitted to the Board without waiver of RO review, and it is potentially relevant in the disposition of this claim. Under 38 C.F.R. § 20.1304(c), any pertinent evidence submitted without a waiver must be referred to the RO. 38 C.F.R. § 20.1304(c) specifically states that "[e]vidence is not pertinent it if does not relate to or have a bearing on the appellate issue or issues." The evidence submitted by the Veteran in this circumstance appears, at least superficially, to be relevant the claim for entitlement to service connection for an acquired psychiatric disorder other than PTSD and anxiety disorder. As this was submitted without a waiver of RO consideration, if the Board were to review the evidence on its merits without initial consideration by the RO, it would have committed an error prejudicial to the Veteran. Accordingly, the claim must be remanded for a review of the new evidence by the RO. See 38 C.F.R. § 20.1304(c). The Board notes that it has granted service connection for PTSD and service connection for anxiety disorder as secondary to service-connected hepatitis C and PTSD herein; the newly submitted VA treatment records reflect additional psychiatric diagnoses of depression (as early as 2009) possibly "related to Vietnam War." The VA treatment notes do not contain any further reasoning or rationale for relating the Veteran's depression to service. The Veteran underwent a VA examination in September 2010; the examiner did not diagnose depression, but noted that his "depressed mood" was a "direct consequence" of his family conditions/problems. In light of the newly submitted VA mental health record documenting depression, the outstanding VA mental health treatment records, the outstanding SSA records, and further considering that the May 2012 examiner did not comment on the Veteran's diagnosed depressive disorder (or the etiology thereof), the Board finds that the Veteran should be afforded a new VA psychological examination upon remand; the purpose of the examination is ascertain the nature and etiology of any psychological disorders, other than PTSD and anxiety disorder. See also Clemons v. Shinseki, 23 Vet. App. 1 (2009). 4. Service Connection Hearing Loss and Tinnitus The Veteran asserts that his hearing loss and tinnitus are the result of in-service acoustic trauma. Specifically, he contends that he was exposed to artillery/mortar/RPG noise, in addition to acoustic trauma while mine sweeping, driving in convoys, and being in a "construction" environment as part of an Engineer Battalion (e.g., building roads, etc.) during his service in Vietnam. He testified that he has experienced hearing loss and ringing in his ears since service. Of note, during his hearing before the undersigned, the Veteran and his representative stressed that a May 2010 VA audiological examination and May 2010 rating decision inaccurately reported that he had more than 35 years of post-service occupational noise exposure. In fact, the Veteran denied having any significant post-service noise exposure and stated that he had worked in a clock factory for one year following service (which was monitored by OSHA) and as a forklift operator for the remainder of his employed life. He stated that the latter employment was not in a noisy environment. The Veteran and his representative pointed out that the May 2010 VA examination report likewise inaccurately reflected that he had denied ringing in his ears, or tinnitus. The Veteran clarified that he has experienced intermittent ringing in his ears since returning from Vietnam. As noted above, the Veteran underwent a VA audiology examination in May 2010 to determine the etiology of his claimed hearing loss and tinnitus. The examiner opined that the Veteran's sensorineural hearing loss was not the result of military noise exposure. The VA audiologist reasoned that the Veteran's puretone thresholds at separation were normal in each ear (i.e., no documented hearing loss at separation); that there were no complaints of hearing loss in-service; and that the Veteran had reported having more than 35 years of post-service occupational noise exposure. With respect to tinnitus, the examiner stated that the Veteran had denied having tinnitus upon examination and, therefore, tinnitus was not cause by military noise exposure. In light of the Veteran's assertions that the May 2010 VA audiological examination report is factually inaccurate, and further considering that the VA examiner provided a negative opinion based almost entirely on the lack of hearing loss shown at separation, the Board finds that the Veteran should be afforded a new VA audiological examination upon remand. See, e.g., Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992) (the absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385 ) is not always fatal to a service connection claim); see also Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post- service findings to the injury in service (as opposed to intercurrent causes)). 5. Increased Rating - Hepatitis C. A remand is required regarding entitlement to an increased rating for hepatitis C disability, in excess of 20 percent, to ensure that there is a complete record upon which to decide the claim. VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d). The Veteran testified at the Board hearing that he was receiving ongoing treatment from the Brick VAMC for hepatitis C. This testimony indicates that there are outstanding VA outpatient records that would be pertinent to the increased rating claim. As previously noted, records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Bell, supra. Additionally, the Veteran essentially testified that his hepatitis C condition has worsened; for example, he stated that he wakes up with nausea every morning and experiences rather severe arthralgia throughout the body. Because of the evidence of possible worsening, a new examination is needed to determine the severity of the hepatitis C. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95. 6. TDIU In hearing testimony and statements throughout the record, the Veteran has indicated that he is no longer employed as a result of symptoms associated with his service-connected hepatitis C, and in particular, arthralgias. The record shows that the Veteran was last employed in 2008 as a forklift operator. The Court has held that if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a total rating based on individual unemployability (TDIU) as a result of that disability is warranted. Rice v. Shinseki, 22 Vet. App. 447 (2009). As the Veteran has submitted evidence of unemployability along with his claim for an increased evaluation (currently on appeal), the Board has included this "claim" in the present appeal. The RO should thus develop a claim for TDIU in accordance with Rice as indicated below. Accordingly, the case is REMANDED for the following action: 1. Develop a claim for TDIU in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009). In so doing, the RO may decide to pursue further development of the Veteran's employment history or to obtain additional medical evidence or medical opinion, as is deemed necessary. 2. Associate with the claims folder or Virtual VA updated, non-duplicative treatment records from the VAMC in East Orange, New Jersey, and the Brick, New Jersey, COBC, dated from January 2007 to the present. 3. Associate with the claims folder or Virtual VA the Veteran's records from the SSA. If such efforts prove unsuccessful, documentation to that effect should be added to the claims folder. 4. Thereafter, schedule the Veteran for a VA audiological examination for an opinion as to the nature and etiology of any bilateral hearing loss and tinnitus that may be present. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. It should be noted that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. The examiner should state an opinion as to the likelihood (likely, unlikely, at least as likely as not) that the Veteran's current bilateral hearing loss and tinnitus are causally or etiologically related to his military service, including to noise exposure. In so doing, the examiner should discuss medically known or theoretical causes of hearing loss and tinnitus and describe how hearing loss and tinnitus which results from noise exposure generally presents or develops in most cases, as distinguished from how hearing loss and tinnitus develop from other causes, in determining the likelihood that current hearing loss and tinnitus were caused by noise exposure in service as opposed to some other cause. The examiner should also address any relationship between hearing loss and tinnitus. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2012), copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 5. Thereafter, schedule the Veteran for a VA examination by a psychologist or psychiatrist to determine the nature and etiology of any acquired psychiatric disorders, other than PTSD and anxiety disorder, present during the period of the claim. The claims file must be made available to and reviewed by the examiner. Any indicated studies should be performed. After reviewing the claims file, the examiner should provide a diagnosis and description of each separate psychological disorder manifested by the Veteran, to include depression (but excluding the already service-connected PTSD and anxiety disorder). To the extent practicable, the examiner should describe the symptoms caused by each disorder. If symptoms are attributable to more than one disorder, the examiner should make that clear in the examination report. If his psychiatric disabilities cannot be clearly separated into distinct disabilities, the examiner should state this. a. What is/are the Veteran's current psychiatric diagnosis/diagnoses? The examiner should comment on the depression diagnoses noted in VA treatment mental health treatment records dated from January 2009 to May 2011, and any other psychiatric diagnoses shown by VA/SSA records associated with the claims file by virtue of this remand; the examiner should state whether the Veteran has a depression that is clearly separate and distinct from his PTSD and anxiety disorder diagnoses. b. Are the current diagnoses other than PTSD and anxiety disorder, but to specifically include depression, at least as likely as not caused by the Veteran's military service? c. Are the current diagnoses, to include depression, at least as likely as not caused by or aggravated by the Veteran's service-connected PTSD and/or anxiety disorder? The reviewer must provide supporting rationale for the opinions rendered, cite to the relevant evidence of record, and reconcile any contradictory evidence of record. 6. Thereafter, schedule the Veteran for a VA examination to assist in determining the current severity of the service-connected Hepatitis C. The relevant documents in the Veteran's VA claims folder should be made available to the examiner for review in connection with the examination. All indicated tests should be performed. The VA examiner should specifically note all symptomatology and manifestations caused by the service-connected Hepatitis C. The VA examiner should indicate whether the Hepatitis C causes daily fatigue, malaise, anorexia, minor or substantial weight loss or other sign of malnutrition, hepatomegaly, dietary restriction, continuous medication, or incapacitating episodes. The examiner should report whether the symptoms are intermittent or near-constant and debilitating. If the hepatitis C causes incapacitating episodes (a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician), the examiner should note the frequency and duration of the episodes in the past 12 months. The examiner should report whether the incapacitating episodes cause symptoms of fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain. A rationale should be provided for all findings and conclusions reached. The examiner should identify and explain the medical basis for any opinion and identify the pertinent evidence of record. 7. Then, after conducting any additional indicated development, readjudicate the claims currently on appeal. If any benefit sought on appeal remains denied, issue a Supplemental Statement of the Case and provide the appellant and his representative an appropriate period of time to respond before this case is returned to the Board. 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). ______________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs