Citation Nr: 1803892 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 14-24 138A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an evaluation for hepatitis C with residuals grade 2 inflammation and stage 4 fibrosis and cirrhosis in excess of 10 percent disabling prior to October 26, 2010 and in excess 20 percent disabling thereafter. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Sandler, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1974 to August 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision by the St. Petersburg, Florida Department of Veterans Affairs (VA) Regional Office (RO). In October 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is in the record. The Board notes that the November 2009 rating decision granting service connection for hepatitis C is not final because new and material evidence, specifically October 2010 private treatment records reflecting a diagnosis of cirrhosis, was submitted within one year of that decision. See 38 C.F.R. § 3.156(b). Accordingly, the Veteran's appeal is for an increased initial evaluation, and has been characterized accordingly on the title page. The record reflects that the Veteran may be unable to secure and follow substantially gainful employment due to his service-connected disability. Because a TDIU rating is inherent in any claim for an increased rating, see Rice v. Shinseki, 22 Vet. App. 447 (2009), it has been added as an issue on the title page. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran testified during his October 2017 Board hearing that he received treatment at the Pensacola, Florida VA Medical Center (VAMC) during the appeal period. It does not appear any such records have been associated with the claim file; as a result, remand to obtain missing VA treatment records is necessary. The Veteran last underwent a VA examination in November 2010. The record reflects that his hepatitis C went into full remission in 2012, but he now currently suffers from cirrhosis secondary to his hepatitis C. See April 2017 private treatment records. Additionally, the Veteran's representative reported that his disability has worsened. See December 2014 statement. Consequently, remand for a new examination to determine nature of the Veteran's current symptoms is necessary. See Green v. Derwinski, 1 Vet. App. 121 (1991); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Because TDIU has been added as an issue on appeal, the examiner should also discuss the impact that the Veteran's disability has on his ability to work. On remand, the AOJ should give the Veteran the opportunity to complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, and provide any additional evidence relating to his inability to work during the appeal period. The Veteran does not currently meet the schedular requirements for TDIU. If upon further adjudication the Veteran continues to fall below the schedular requirements, referral to the Director, Compensation Service, for consideration of extraschedular TDIU is necessary. See 38 C.F.R. § 4.16(b). Accordingly, the case is REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records from the Pensacola, Florida VAMC for the Veteran's disabilities from June 2009 to the present. The AOJ should ensure that the complete records of all VA evaluations and treatment the Veteran has received for his disabilities are associated with the record. 2. The AOJ should provide the Veteran appropriate notice of VA's duties to notify and assist in regards to how to substantiate a claim for entitlement to TDIU, to include providing him a VA Form 21-8940. The Veteran should assist in the matter by providing the requested information. 3. After the above development has been completed, the AOJ should arrange for the Veteran to be afforded a VA examination to determine the current severity of his hepatitis C. Pathology, symptoms (frequency and severity), and any associated impairment of function should be described in detail for both hepatitis C and cirrhosis. All indicated tests or studies should be completed. The examiner is asked to respond to the following: (a) Is the Veteran's hepatitis C in remission and, if so, what is the date of remission? (b) What is the date of diagnosis for the Veteran's cirrhosis? (c) Is it possible to distinguish the symptoms of the Veteran's hepatitis C and cirrhosis? If so, please state which symptoms are attributable to which disability. (d) What impact has the Veteran's hepatitis C and cirrhosis had on his ability to work during the appeal period (from June 2009)? The examiner should discuss the Veteran's reports that he cannot work more than a few hours a day due to fatigue. A detailed explanation (rationale) is required for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the matter and may also result in a clarification being requested.) 4. If, after completion of the above, the Veteran continues to not meet the schedular criteria for entitlement to TDIU, the AOJ should refer this case to the Director, Compensation Service, for extraschedular consideration pursuant to 38 C.F.R. § 4.16(b). If upon completion of the above action the claim remains denied, the case should be returned to the Board after compliance with appellate procedures. The Veteran 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 appeal must be afforded expeditious treatment. The law requires that all matters that are remanded by the Board 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. §§ 5109B, 7112 (2012). _________________________________________________ E. I. VELEZ Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board 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 the Veteran's appeal. 38 C.F.R. § 20.1100(b) (2017).