Citation Nr: 18153500 Decision Date: 11/28/18 Archive Date: 11/27/18 DOCKET NO. 16-32 279 DATE: November 28, 2018 REMANDED The issue of entitlement to an initial rating in excess of 10 percent for primary biliary cirrhosis is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1980 to November 1984. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2013, the Veteran filed a timely notice of disagreement (NOD) as to the issues of an earlier effective date for the grant of service-connected primary biliary cirrhosis and for an initial rating in excess of 10 percent for primary biliary cirrhosis. In a May 2016 Statement of the Case (SOC), the RO adjudicated both claims. However, in a timely July 2016 substantive appeal, the appellant perfected the appeal as to the issue of an initial rating in excess of 10 percent for primary biliary cirrhosis only. The RO certified all the issues adjudicated in the May 2016 SOC to the Board in July 2016. The Board has considered whether VA has waived the requirement of a substantive appeal, under the United States Court of Appeals for Veterans Claims’ (Court’s) decisions in Percy v. Shinseki, 23 Vet. App. 37 (2009) and Gonzalez-Morales v. Principi, 16 Vet. App. 556 (2003). In these cases, the Court held that VA may explicitly or implicitly waive the requirement of a substantive appeal by taking action indicating to a veteran that the appeal was still active. Here, as the Veteran and her representative specifically omitted the issue of entitlement to an earlier effective date for the grant of service-connected primary biliary cirrhosis, and there is no indication that she might believe that a substantive appeal had be filed as to the issues, this issue is not within the Board’s jurisdiction to further review. Finally, the Board notes that the Veteran contends that her service-connected primary biliary cirrhosis affects her ability to work due to fatigue. However, the Board does not find that this case raises a claim for a TDIU. See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009); Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). Here, the evidence does not show, nor does the Veteran claim, that she is unemployable due to primary biliary cirrhosis. To the contrary, the Veteran is employed full time as an intensive care unit (ICU) nurse. Therefore, a claim for TDIU has not been raised by the record and no action pursuant to Rice is warranted. 1. Entitlement to an initial rating in excess of 10 percent for primary biliary cirrhosis is remanded. The Board notes that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran was afforded a VA examination in April 2016 due to complaints of worsening. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Here, the April 2016 VA examiner initially determined that continuous medication was required for the Veteran’s primary biliary cirrhosis. The examiner determined that the Veteran daily fatigue due to a liver disease without cirrhosis, but that there were no any incapacitating episodes due to hepatitis during the past twelve months. The examiner indicated that the Veteran did not currently have signs or symptoms attributable to cirrhosis of the liver, biliary cirrhosis or cirrhotic phase of sclerosing cholangitis. She also noted that the Veteran was not a liver transplant candidate, awaiting a liver transplant, did not undergo liver transplant, or had an injury to the liver. Physical examination revealed that the Veteran appeared well, with a round and nontender abdomen. The examiner indicated that a liver biopsy performed on April 29, 2010 found predominantly portal hepatitis with focal duct injury, suggestive of primary biliary cirrhosis, Stage 1 with minimal steatosis. The examiner determined that the Veteran did not have cirrhosis, and per biopsy the Veteran has mild stage 1 portal hepatitis. The examiner did not indicate whether a liver biopsy had been performed in conjunction with the examination, and if so, what the results showed, and instead relied on the dated April 2010 liver biopsy performed six years earlier, despite 2012 treatment records documenting stage 2 primary biliary cirrhosis. The examiner also did not explain if or why objective signs and symptoms of a higher rating were present upon examination. To be considered adequate, a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Based on the foregoing deficiencies, the Veteran should be afforded a new VA examination to assess the current nature, extent, and severity of primary biliary cirrhosis. Although the May 2016 SOC referenced Gainesville VA Healthcare System treatment records from July 2010 to April 2016, these records are not associated with the claims file. Since these records could bear substantially upon the rating assigned, a remand is necessary in order to obtain these outstanding treatment records. Updated VA treatment records and private treatment records should also be requested on remand. 38 U.S.C. § 5103A(c); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). The matters are REMANDED for the following action: 1. Obtain any VA treatment records pertaining to the Veteran’s primary biliary cirrhosis. Attention is directed to VA outpatient treatment records from July 2010 to April 2016, referenced in the May 2016 SOC, as they have not been associated with the Veteran’s claims file. If any requested records are unavailable, the claims file should be annotated as such and the Veteran and her representative notified of such. 2. Additionally, ask the Veteran to provide the names and addresses of any private medical provider who has treated her for primary biliary cirrhosis. After securing any necessary releases, request any relevant records identified that are not duplicates of those already contained in the claims file. 3. After completing the above actions, schedule the Veteran for a VA examination by a physician, who has not previously examined this Veteran, to assess the current nature and severity of her service-connected primary biliary cirrhosis. The claims file should be made available to and reviewed by the examiner. All indicated testing should be carried out and the results recited in the examination report. The examiner should provide all information required for rating purposes, to specifically include all evidence necessary to evaluate the Veteran’s primary biliary cirrhosis under Diagnostic Code 7312. (a.) If the examiner cannot provide the requested opinions without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence in this case, or a lack of knowledge among the medical community at large, and not the insufficient knowledge of the individual examiner). (b.) If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner’s lack of requisite knowledge or training, obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Bilstein, Associate Counsel