Citation Nr: 18143900 Decision Date: 10/23/18 Archive Date: 10/22/18 DOCKET NO. 15-25 872 DATE: October 23, 2018 REMANDED Entitlement to a rating in excess of 40 percent for hepatitis C to include on an extraschedular basis from February 24, 2011 is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1979 to April 1985. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2016, the Board denied, in part, a rating in excess of 40 percent for the period beginning March 21, 2011. The Board notes, however, that the date included in the Order, specified as March 21, 2011, was a typographical error and the date should have read February 24, 2011, the date of the claim for increase. The Veteran appealed the Board’s August 2016 decision to the United States Court of Appeals for Veterans Claims (Court). In January 2018, the parties submitted a Joint Motion for Partial Remand (JMR). In the January 2018 JMR, the parties agreed that the Board erred in discussing an increase based on an extraschedular rating pursuant to 38 C.F.R. 3.321. Specifically, the parties contended that the Board did not discuss the Veteran’s range of symptoms based on her medication usage or consider whether the Veteran’s anemia, another symptom related to hepatitis C, caused marked interference with employment or frequent periods of hospitalizations. By January 2018 Order, the Court granted the JMR, vacating the August 2016 Board decision in part, and remanding the case to the Board for action consistent with the JMR. 1. Entitlement to a rating in excess of 40 percent for hepatitis C to include on an extraschedular basis from February 24, 2011 is remanded. The Veteran’s hepatitis C is rated as 40 percent disabling under 38 C.F.R. § 4.114, DC 7354, which evaluates impairment from hepatitis C (or non-A, non-B hepatitis). Significantly, Note (1) instructs to evaluate sequelae, such as cirrhosis or malignancy of the liver, under an appropriate diagnostic code, but do not use the same signs and symptoms as the basis for evaluation under DC 7354 and under a diagnostic code for sequelae. Separate service connection is in effect for cirrhosis of the liver associated with hepatitis C rated as 50 percent disabling, and service connection for peripheral neuropathy affecting the lower extremities, each rated as 10 percent disabling. In March 2011, the Veteran was afforded a VA examination. The Veteran reported daily fatigue, intermittent malaise and nausea, pain in the right upper right quadrant, bloating in the right side of the abdomen and multiple joint and spine pain that waxed and waned. Upon physical examination, the Veteran’s weight was recorded as 244 pounds. The Board notes that this is a weight gain of three pounds of her baseline weight, as recorded in October 2010. There was no evidence of malnutrition. The Veteran’s liver was noted to be enlarged with evidence of ascites (the accumulation of protein-containing fluid within the abdomen). There was no evidence of portal hypertension or other signs of liver disease. The Veteran stated that she lost three weeks from work during the previous 12-month period, but stated that it was related to the scheduling of doctor appointments and mild illness. The Veteran denied incapacitating episodes. The examiner opined that the Veteran had cirrhosis of the liver related to her hepatitis C. An August 2012 private treatment letter, authored by Dr. P.G., reveals that the Veteran was advised to be on a low fat and low sodium diet, to include additional fruits and vegetables. A hospital record dated in December 2012 reveals that the Veteran presented with complaints of moderate fatigue for three to four days. The Veteran denied chest pain, shortness of breath, abdominal pain, or blood in her urine or stools. She was hospitalized from December 13, 2012 to December 14, 2012, prescribed medication, and instructed to follow up with her primary care physician in one week. A second hospital record dated in January 2012 reveals that the Veteran presented with complaints of mild fatigue. The Veteran was admitted for a blood transfusion and hospitalized from January 8, 2013 to January 9, 2013. The Veteran denied shortness of breath or chest pain. The physician noted a diagnosis of severe anemia, secondary to interferon treatment. The Veteran was given a blood transfusion, given medication, and instructed to discontinue interferon treatment after a consultation with an infectious disease physician. A January 2013 private treatment letter, authored by Dr. P.S., reveals that the Veteran was under her care and was undergoing treatment of Pegylated interferon, Ribavirin, and Telaprevir. The physician also noted various side effects from taking medication prescribed for hepatitis C, to include itchy dry skin; vision problems; fever, chills, body aches, and muscle pain; flu symptoms; stomach pains; loss of appetite; fast heart rate; wheezing, shortness of breath; irritability, anxiety, and mood changes; sweating; pale or yellowed skin; moderate to severe weakness; headaches; memory function issues; dry throat and cough; weight loss; inflammation of the pancreas and intestines; pain and swelling at the injection site; insomnia; anemia; bone marrow insufficiency; low white blood count; hair loss and thinning; and low platelet counts. The physician also noted that the Veteran developed critical anemia on two occasions, requiring hospitalization, as a result of treatment. As such, the Veteran was instructed to stop treatment, beginning in January 2013. In March 2015, the Veteran was afforded another VA examination. The Veteran reported that she had undergone treatment of hepatitis C with Pegasys and Copegus. The Veteran also reported that she had several side effects, to include being hospitalized twice for anemia. The Veteran also reported that another treatment, performed for twelve weeks in 2014, yielded a “favorable response.” The Veteran reported eating well. The Veteran did not have jaundice and denied being on continuous medication for hepatitis C. The Veteran reported occasional burning and tingling in her feet since her initial treatment with interferon. The examiner again noted the previous diagnosis of cirrhosis of the liver, with no signs or symptoms attributable to the condition. In April 2015, the Veteran was afforded another VA examination. The examination revealed no hematologic or lymphatic disorders, including no evidence of anemia. The Veteran’s blood count was within normal limits. During a skin examination, the examiner noted that the Veteran did not have a skin disorder or scars from a previous skin disorder, despite the Veteran’s contentions that she developed scabs over her right cheek and right upper lips which she attributed to her hepatitis. In correspondence, dated in March 2017, the Veteran noted that she was suffering from alopecia as a result of her interferon-based therapy. She also stated that she had light and dark spots on her face, as due to her hepatitis C. In the January 2018 JMR, the parties found that “the Board failed to discuss a range of symptoms based on Appellant’s medication usage for her hepatitis C (peglyated interferon, ribavirin, and telaprevir), to include hair thinning, leg heaviness, bloating, itching, cramps, insomnia, blisters, numbness, excessive coughing, and anemia.” (Emphasis added). In the Veteran’s August 2018 statement, the April 2015 letter was referenced in which the Veteran requested “consideration of the side effects of her medication, listing other symptoms, such as ‘loss of hair/thinning; heaviness in my legs; bloating/gas; almost constant itching, from my head/scalp, throughout the entire body’, ‘severe cramps’, and ‘chronic insomnia’.” (Emphasis added). It was noted that other letters repeated similar symptoms and also indicated “the presence of blisters, numbness in hands, itchy dry skin, excessive coughing, etc.” The January 2013 private treatment letter, however, indicated that the Veteran’s medication (Pegylated interferon, Ribavirin, and Telaprevir) was stopped in January 2013. The April 2015 VA examination indicated that the Veteran was no longer anemic. Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board finds it necessary that the Veteran undergo another VA examination for purposes of determining what medication the Veteran is currently on and what side effects are the result thereof to ensure that the Board has sufficient evidence to evaluate the disability for the entire appeal period still at issue. The matter is REMANDED for the following action: 1. The AMO/RO should contact the Veteran and request that she provide a completed release form (VA Form 21-4142) authorizing VA to request copies of any treatment records from any private medical providers who have treated her for hepatitis C since January 2013. After the Veteran has signed the appropriate releases, those records not already associated with the claims file, should be obtained and associated therewith. All attempts to procure any outstanding treatment records should be documented in the claims file. If the AMO/RO cannot obtain records identified by the Veteran, a notation to that effect should be included in the claims file and the Veteran and her representative should be notified of unsuccessful efforts in this regard, in order to allow her the opportunity to obtain and submit those records for VA review. 2. The Veteran should be scheduled for an appropriate VA examination so as to determine the current level of severity of her hepatitis C. The file must be made available to and reviewed by the examiner. The examiner should note in the examination report that the file has been reviewed. All necessary tests should be conducted. Additionally, obtain an opinion by a hepatologist, gastroenterologist, or infectious disease physician, on the following: What medication is the Veteran currently using to treat her hepatitis C? What are the side effects of the medication that the Veteran is currently using to treat her hepatitis C? What side effects are the Veteran experiencing as the result of the medication that she is currently using to treat her hepatitis C? TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Tiffany N. Hanson, Associate Counsel