Citation Nr: 18142186 Decision Date: 10/16/18 Archive Date: 10/12/18 DOCKET NO. 08-06 809A DATE: October 16, 2018 ORDER Effective April 25, 2005, entitlement to an initial 100 percent disability rating for hepatitis C, is granted. REMANDED Entitlement to service connection for gastrointestinal disorder, claimed as gastroesophageal reflux disease (GERD) as secondary to service-connected disabilities is remanded. Entitlement to a separate rating for loss of use of right foot, status post shell fragment wound with fractured tibia and fibula and history of osteomyelitis and osteoarthritis under 38 C.F.R. § 4.71a, Diagnostic Code 5000 is remanded. Entitlement to an increased rating for lumbosacral strain, evaluated as 20 percent disabling prior to July 5, 2017, and 40 percent disabling thereafter is remanded. Entitlement to referral for extraschedular consideration is remanded. FINDING OF FACT Resolving all reasonable doubt in the Veteran’s favor, since the award of service connection, the Veteran’s hepatitis C has been productive of near constant and debilitating fatigue and malaise; daily anorexia, right upper quadrant pain and nausea; and vomiting and weight loss sustained for three months. CONCLUSION OF LAW The criteria for an initial 100 percent disability rating for Hepatitis C have been met, effective April 25, 2005. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.114, Diagnostic Code 7345. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1966 to October 1969, including service in the Republic of Vietnam. He is the recipient of a Purple Heart. In November 2014 the Board, in part, denied entitlement to service connection for a gastrointestinal disability claimed as GERD; denied entitlement to a rating in excess of 40 percent for hepatitis C; denied entitlement to a rating in excess of 40 percent for loss of use of right foot, status post shell fragment wound with fractured tibia and fibula and history of osteomyelitis and osteoarthritis; and denied entitlement to a rating in excess of 20 percent of lumbosacral strain. The Veteran subsequently appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). In July 2016, a Joint Motion for Partial Vacatur and Remand (JMR) was brought before the Court. In an Order dated August 2016, the Court vacated the November 2014 Board decision pursuant to the JMR and remanded these issues to the Board for further appellate review consistent with its Order. In April 2017, the Board remanded these issues for further development per the JMR. Additional VA clinical records were associated with the record that have not been considered by the Agency of Original Jurisdiction (AOJ) in conjunction with the current appeal. Nevertheless, with respect to the issue decided herein, the Board finds no prejudice to the Veteran as the Board has awarded a maximum 100 percent disability rating for the Veteran’s hepatitis C. With respect to the remaining issues, the AOJ will have the opportunity to consider these records on remand. 1. Entitlement to an initial higher rating for hepatitis C The Veteran is seeking an initial rating in excess of 40 percent for his hepatitis C. The Veteran’s hepatitis C has been rated under 38 C.F.R. § 4.115a, Diagnostic Code 7354 for hepatitis C. Under this code, a 40 percent rating is warranted for daily fatigue, malaise, and anorexia, with minor weight loss and hepatomegaly, 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 four weeks, but less than six weeks, during the past 12-month period. A 60 percent rating is warranted where HCV manifests with for daily fatigue, malaise, and anorexia, with substantial weight loss (or other indication of malnutrition), and hepatomegaly, 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 six weeks during the past 12-month period, but not occurring constantly. A maximum 100-percent rating is warranted for near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). Note (2) provides that for purposes of evaluating conditions under diagnostic code 7354, an “incapacitating episode” is defined as a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician. The term “substantial weight loss” is defined as a loss of greater than 20 percent of baseline weight, sustained for three months or longer; and the term “minor weight loss” is defined as a weight loss of 10 to 20 percent of baseline weight, sustained for three months or longer. See 38 C.F.R. § 4.112. Based on the evidence of record, when resolving the benefit of the doubt in favor of the Veteran, the Board finds that an initial 100 percent rating is warranted. Significantly, the most recent VA examination dated in July 2017 showed that the Veteran suffered from near constant and debilitating symptoms, including fatigue and malaise, which are the criteria for a 100 percent rating. The Veteran also suffered from daily anorexia, nausea, vomiting and right upper quadrant pain. He also had substantial weight loss. Moreover, a May 2013 VA fee-based examination also showed near-constant and debilitating weakness, anorexia, abdominal pain and malaise. The Veteran also demonstrated weight loss. Further, at a July 2006 VA examination, the Veteran reported constant fatigue and nausea; intermittent vomiting and right upper quadrant pain; and periods of bed-rest as well as weight loss. He reported similar symptoms at a July 2009 VA examination. In sum, the Veteran consistently reported fatigue, malaise, nausea, vomiting and weight loss. Importantly, the Board finds that the Veteran’s symptoms have not significantly changed since the award of service, April 25, 2005. In conclusion, the criteria for an initial rating of 100 percent disability rating for hepatitis C have been met, effective April 25, 2005. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for gastrointestinal disorder, claimed GERD, as secondary to service-connected disabilities is remanded. The Board previously remanded this issue to afford the Veteran a VA examination with opinion on whether the Veteran’s gastrointestinal disability was secondary to his service-connected disabilities, to include any medications taken to treat these disorders. The Veteran was afforded a VA examination with opinion in July 2017. The examiner found that the Veteran’s GERD was less likely as not proximately due to or aggravated by his service-connected condition. The examiner rationalized that the Veteran’s hepatitis C disease was now quiescent. However, the experimental medication that he was given at Fairfax hospital was not spelled out and thus, the examiner could not speculate if that medication was responsible without resort to speculation. However, the most recent VA examination for the Veteran’s hepatitis C documents severe daily symptoms, including vomiting and nausea, which contradicts the examiner’s rationale. Moreover, the examiner failed to address the Veteran’s other service-connected disabilities, including PTSD; loss of use of right foot; lumbosacral strain; torn medial meniscus of the left knee; radiculopathy of the left lower extremity; radiculopathy of the right lower extremity; degenerative joint disease of the right knee; hypertension; and scar of the donor site, left iliac crest, as directed by the Board. As such, this opinion is inadequate and an addendum opinion is necessary. 2. Entitlement to a separate rating for loss of use of right foot, status post shell fragment wound with fractured tibia and fibula and history of osteomyelitis and osteoarthritis under 38 C.F.R. § 4.71a, Diagnostic Code 5000 is remanded. The Board also directed the Veteran to be afforded a VA examination to address the severity of his service-connected loss of use of right foot, status post shell fragment wound with fractured tibia and fibula and history of osteomyelitis and osteoarthritis disability. The examiner was requested to specifically note whether there were frequent episodes of osteomyelitis, with constitutional symptoms; and to record any constitutional symptoms of osteomyelitis. However, the July 2017 examiner simply stated that the Veteran was diagnosed with osteomyelitis of the right ankle, not the right foot. However, review of the record clearly shows that osteomyelitis of the right ankle has always been considered one of the symptoms of the service-connected loss of use of right foot. As such, this examination is inadequate as the examiner failed to determine the number of episodes and constitutional symptoms of the Veteran’s osteomyelitis as requested. In turn, an addendum opinion must be obtained. 3. Entitlement to an increased rating for lumbosacral strain, evaluated as 20 percent disabling prior to July 7, 2017, and 40 percent disabling thereafter is remanded. The JMR found that prior VA examinations dated in July 2009, October 2011 and April 2013 were inadequate as the examinations did not describe the Veteran’s reported flare-ups in terms of limitation of motion or provide an explanation as to why an estimation of loss of motion could not be provided. As such, the Board remanded the case for another VA examination, which was done on July 5, 2017. Based on this examination, in a November 2017 rating decision, the AOJ awarded a 40 percent disability rating, effective the date of the examination. However, in a January 2018 supplemental statement of the case, the AOJ only adjudicated whether a rating in excess of 40 percent was warranted from July 5, 2017 and failed to adjudicate whether a rating in excess of 20 percent prior to July 5, 2017 is warranted. Thus, in order to afford the Veteran his full procedural rights, this issue must be returned for adjudication of the rating for the period prior to July 5, 2017. Moreover, as noted above, additional relevant VA clinical records have been associated with the record that have not been considered by the AOJ. These records address the severity of the Veteran’s back disorder indicating that he was unable to bend over. As such, these records must be considered on remand. 4. Entitlement to referral for extraschedular consideration is remanded. This matter is inextricably intertwined with the remaining issues on appeal. As such, this issue must be deferred pending the adjudication of the inextricably intertwined claims. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s GERD is proximately due or aggravated beyond its natural progression by service-connected PTSD; loss of use of right foot; lumbosacral strain; torn medial meniscus of the left knee; radiculopathy of the left lower extremity; radiculopathy of the right lower extremity; degenerative joint disease of the right knee; hypertension; and scar of the donor site, left iliac crest, to include any medications taken to treat such disabilities. 2. Obtain an addendum opinion from an appropriate clinician regarding the severity of the Veteran’s service-connected loss of use of right foot, status post shell fragment wound with fractured tibia and fibula and history of osteomyelitis and osteoarthritis disability. The examiner should specifically note whether there are frequent episodes of osteomyelitis, with constitutional symptoms; and any constitutional symptoms of osteomyelitis should be recorded. The need for a new examination is left to the discretion of the clinician. 3. Readjudicate the issues on appeal, to specifically include whether a rating in excess of 20 percent for the (CONTINUED ON NEXT PAGE) Veteran’s lumbosacral strain prior to July 5, 2017 is warranted. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.N. Moats