Citation Nr: 1758050 Decision Date: 12/14/17 Archive Date: 12/28/17 DOCKET NO. 07-23 237 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to a rating in excess of 10 percent for service-connected hepatitis B. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from April 1973 to April 1977. This matter comes before the Board of Veterans Appeals (Board) on appeal from an August 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In Board decisions dated March 2011 and June 2014, the claim was remanded for further evidentiary development. The VA Appeals Management Center (AMC) most recently continued the previous denial in an April 2017 supplemental statement of the case (SSOC). The Veteran's VA claims file has been returned to the Board for further appellate proceedings. The June 2014 Board decision also remanded the matter of entitlement to service connection for hepatitis C for the issuance of a statement of the case (SOC). In a July 2016 rating decision, service connection was granted for hepatitis C and an initial 60 percent rating was granted from February 28, 2006. To the Board's knowledge, the Veteran has not disagreed with that decision; that matter has accordingly been resolved. See Grantham v. Brown, 114 F.3d 1136 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action on his part is required. REMAND Regrettably, a remand is necessary for further evidentiary development of the Veteran's claim on appeal. The Board is cognizant that the Veteran's case has been in adjudicative status for years and that it has already been twice remanded in the past. Consequently, the Board wishes to assure the Veteran that it would not be remanding this case again unless it was essential for a full and fair adjudication of his pending increased rating claim. The Veteran asserts entitlement to an increased rating for service-connected hepatitis B. In June 2014, the matter was remanded to afford him a VA examination to address the severity of his current hepatitis B symptoms. The examiner was instructed to describe the nature and severity of the Veteran's current hepatitis symptoms and explain whether they are attributable to hepatitis B or hepatitis C. Pursuant to the Board Remand, the Veteran was afforded a VA examination in December 2015, at which time the examiner addressed only the diagnosed hepatitis C and its symptoms. The examiner failed to address the Veteran's hepatitis B at all; in fact, he did not attempt to describe or differentiate any symptoms attributable to hepatitis B. Thus, given the inadequacies of the December 2015 VA examination, the Board finds the evidence of record is insufficient to determine whether an increased rating is warranted for service-connected hepatitis B. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made). Due to the deficiencies of the December 2015 VA examination, as outlined above, the AMC did not substantially comply with the Board's prior remand directives. Therefore, another remand is warranted to obtain an adequate opinion from an appropriately qualified VA examiner. Stegall v. West, 11 Vet. App. 268, 271 (1998). Prior to arranging for the Veteran to undergo further VA examination, to ensure that all due process requirements are met, and that the record is complete, the AOJ should undertake appropriate action to obtain all pertinent, outstanding records. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding records of VA evaluation and/or treatment of the Veteran. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 2. Schedule an appropriate VA compensation examination reassessing the severity of the Veteran's service-connected hepatitis B. The claims file must be made available to the examiner for review in connection with the examination. (a). The examination should be performed in accordance with the current disability benefits questionnaire. The examiner should determine all manifestations and residuals associated with the Veteran's service-connected hepatitis B, and the severity of any such manifestations and residuals. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. (b). The examiner should attempt to differentiate between the symptoms of the diagnosed hepatitis B and hepatitis C. If the examiner cannot so differentiate, he/she should so state. (c). The examiner should discuss any occupational impairment caused by the service-connected hepatitis B. The rationale for all opinions expressed by the VA examiner should also be provided. If the examiner is unable to provide an opinion as to one of the questions posed, he/she should state the reasons therefor. 3. Thereafter, readjudicate the claim on appeal. If a benefit sought remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given an opportunity to respond before the case is returned to the Board. The Veteran 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 or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ K. CONNER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board is appealable to the Court. 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) (2017).