Citation Nr: 18156896 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 18-08 036 DATE: December 11, 2018 REMANDED Entitlement to service connection for hepatitis B is remanded. Entitlement to a disability rating in excess of 30 percent for asthma is remanded. Entitlement to a total disability rating based upon individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Navy from July 2002 to June 2005. These matters come to the Board of Veterans’ Appeals (Board) on appeal from an August 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. Service connection for hepatitis B The Veteran contends that hepatitis B was incurred in service. The Veteran has not indicated that he had any hepatitis “risk factors” during his period of active service. Moreover, the available service treatment records do not show any evidence of treatment for liver disease, to include hepatitis B. At the time of the Veteran’s separation examination in May 2005, he denied any history of jaundice or hepatitis. Those facts notwithstanding, the Veteran’s post-service VA treatment records show that laboratory results were positive for hepatitis B in August 2005, approximately two months after his discharge from service. (A positive diagnosis was confirmed in January 2006.) The Veteran has not been afforded a VA examination with respect to his hepatitis B. Although, as noted, there is no objective evidence that liver disease was ever diagnosed in service, the short period of time between the Veteran’s discharge and his initial diagnosis appears to suggest, at least facially, that the disease “may be associated” with service. The requirements for a VA examination have been met. See 38 C.F.R. § 3.159(c)(4); McClendon v. Nicholson, 20 Vet. App. 79 (2006) (describing the circumstances under which VA has a duty to provide a VA medical examination or opinion). Additional development is required. Increased rating for asthma The Veteran contends that his asthma is more severe than his current 30 percent evaluation suggests. The Veteran’s symptoms are rated under Diagnostic Code (DC) 6602. See 38 C.F.R. § 4.97. DC 6602 provides that a 60 percent rating is warranted where forced expiratory volume at one second (FEV-1) is 40 to 55 percent of predicted, or; FEV-1/forced vital capacity (FVC) is 40 to 55 percent, or; at least monthly visits to a physician are required for care of exacerbations, or; intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. Id. The record includes private treatment notes indicating that the Veteran went to an emergency room (ER) for asthma symptoms in July 2016 after he was exposed to car exhaust, gas, and hot weather. At that time, he was given oxygen, saline, nebulizer, and Zofran, and was told to stay out of his job for 72 hours (he resigned shortly thereafter). The Veteran was seen again in the ER in January 2017 and was prescribed several medications, including mometasone (a corticosteroid). In February 2017, he again presented to the ER due to asthma symptoms and was again prescribed corticosteroids (prednisone and mometasone). He reported that, since July 2016, his asthma had resulted in “hospitalizations and bed rest.” The Veteran was afforded a VA respiratory examination in May 2017, during which it was reported that he required intermittent (i.e., once over the last 12 months) courses or bursts of systemic corticosteroids. The report further noted that the Veteran did not require the use of oral bronchodilators or physician visits for required care of exacerbations. Since that time, the Veteran has continued to be followed for asthma-related symptoms. Notably, an October 2017 primary care note reflects that the pulmonology clinic continued the Veteran’s prescription for mometasone. In his February 2018 substantive appeal, the Veteran reported that he had been prescribed multiple courses of systemic corticosteroids in the past year and, as such, a 60 percent rating was warranted. In light of the Veteran’s contentions and the evidence discussed above, the Board finds that an updated VA examination is needed to determine the current severity of the Veteran’s asthma. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination); Caffrey v. Brown, 6 Vet. App. 377, 381(1994) (an examination too remote for rating purposes cannot be considered “contemporaneous”). In short, the record suggests that the Veteran may have been prescribed more than one course of systemic (oral or parenteral) corticosteroids over the past year. On remand, the examiner should thoroughly review the record and provide all relevant information regarding the nature and frequency of the medications required by the Veteran’s asthma (and, if applicable, the frequency of physician visits for required care of exacerbations). TDIU In an April 2017 letter, the Veteran made assertions to the effect that he was unable to work as a result of his service-connected asthma and allergic rhinitis. Accordingly, the issue of entitlement to a TDIU has been raised. See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). Thus far, the Veteran has not been provided notice of the requirements to substantiate a claim for a TDIU. Significantly, he has reported filing potentially relevant applications with the New York State Workers’ Compensation Board, the Social Security Administration (SSA), and the New York State Office of Adult Career and Education Services (Vocational Rehabilitation). Further development is necessary. These matters are REMANDED for the following action: 1. Provide the Veteran with notice regarding the evidence and information necessary to substantiate a claim for a TDIU, along with an application form for the same. 2. Ask the SSA to provide copies of any records in its possession pertaining to the Veteran’s application for SSA disability benefits, to include any medical records that were considered in making a decision on the application. Efforts to obtain the evidence should be fully documented, and should be discontinued only if it is concluded that the evidence sought does not exist or that further efforts to obtain the evidence would be futile. 38 C.F.R. § 3.159(c)(2). The evidence obtained, if any, should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact and the Veteran and his representative should be notified. 3. With appropriate release from the Veteran, assist him in obtaining any outstanding records from the New York State Workers’ Compensation Board, the New York State Office of Adult Career and Education Services (Vocational Rehabilitation), and any other entities or care providers he identifies as possessing new or additional evidence pertinent to the issues on appeal. If any of the records sought are not available, the record should be annotated to reflect that fact and the Veteran and his representative should be notified. 4. Obtain any outstanding VA medical records pertaining to the Veteran. 5. After the foregoing development has been completed to the extent possible, arrange to have the Veteran scheduled for a VA hepatitis examination. The examiner should review the record. All indicated tests should be conducted and the results reported. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that hepatitis B had its onset in, or is otherwise attributable to, the Veteran’s period of active service. In so doing, the examiner should discuss the medical significance, if any, of the fact that hepatitis B was noted in August 2005, approximately two months after his discharge from service. A complete medical rationale for all opinions expressed must be provided. 6. Schedule the Veteran for an examination for purposes of assessing the current severity of his service-connected asthma. As part of the examination, the examiner should thoroughly review the record and provide all relevant information regarding the nature and frequency of the medications required for treatment of the Veteran’s asthma (and, if applicable, the frequency of physician visits for required care of exacerbations). 7. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, readjudicate the issues on appeal, including the issue of entitlement to a TDIU. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Minot, Associate Counsel