Citation Nr: 18158115 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 14-35 938 DATE: December 14, 2018 ORDER Prior to April 29, 2013, entitlement to an initial 70 percent rating, but not higher, for cirrhosis of the liver is granted, subject to the laws and regulations governing the award of monetary benefits. Prior to April 29, 2013, entitlement to a TDIU is granted, subject to the laws and regulations governing the award of monetary benefits. REMANDED The issue of entitlement to a rating in excess of 70 percent for cirrhosis of the liver, since April 29, 2013, is remanded. FINDINGS OF FACT 1. Prior to April 29, 2013, the Veteran’s liver disability was manifested by a history of at least two episodes of ascites, with periods of remission between attacks; persistent jaundice, substantial weight loss, ascites refractory to treatment, or near-constant debilitating fatigue, malaise, nausea, vomiting, anorexia, arthralgia and right upper quadrant pain were not shown. 2. Prior to April 29, 2013, the Veteran’s service-connected liver disability precluded him from securing and following substantially gainful employment. CONCLUSIONS OF LAW 1. Prior to April 29, 2013, the criteria for an initial, 70 percent rating, but no higher, for cirrhosis of the liver were met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.114, Diagnostic Code 7312 (2017). 2. Prior to April 29, 2013, the criteria for a TDIU were met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1983 to May 1987 and from July 1988 to November 1988. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2012 rating decision of the Appeals Management Center (AMC) in Washington, DC, which granted entitlement to service connection for cirrhosis of the liver and assigned a 10 percent rating, effective from March 27, 2007. In an April 2013 statement, the Veteran requested an increased rating for cirrhosis of the liver and claimed entitlement to a TDIU. In a June 2014 rating decision, the Columbia, South Carolina Regional Office (RO) increased the rating for cirrhosis of the liver to 70 percent and granted entitlement to a TDIU, both effective from April 29, 2013, the date of the Veteran’s statement. In an August 2018 decision, the Board liberally construed the April 2013 statement as a notice of disagreement with the rating assigned in the December 2012 rating decision. The Board remanded the issue of increased ratings for cirrhosis of the liver for issuance of a statement of the case pursuant to Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). Thereafter, in September 2018, the RO issued a statement of the case, and the Veteran filed a timely substantive appeal in October 2018. This decision bifurcates the issue of entitlement to an increased disability rating for cirrhosis of the liver into two separate issues: (1) an increased evaluation prior to April 29, 2013 and (2) an increased evaluation after April 29, 2013. Such bifurcation of the issue permits a grant of an increased rating prior to April 29, 2013, for which the evidence of record shows the Veteran is entitled, without delay of this grant of benefits awaiting additional development relating to whether the Veteran is entitled to an increased disability rating for the period after April 29, 2013. See Locklear v. Shinseki, 24 Vet. App. 311 (2011) (bifurcation of a claim generally is within VA’s discretion). The issue of entitlement to a TDIU was not certified for appeal. However, when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Veteran explicitly raised the issue in an April 2013 statement and a November 2013 VA Form 21-8940 (Veterans Application for Increased Compensation Based on Unemployability), wherein he alleged that he was unemployable due to his service-connected liver disability. As noted, in the June 2014 rating decision, the Veteran was granted entitlement to a TDIU effective from April 29, 2013. However, the claim for a TDIU prior to April 29, 2013, is on appeal as part and parcel of the claim for higher ratings for a cirrhosis of the liver. I. Increased Rating for a Liver Disability The Veteran is in receipt of a 10 percent disability rating for cirrhosis of the liver for the rating period prior to April 29, 2013. He contends that a higher rating is warranted. A. Legal Criteria Disability ratings are determined by the application of the VA’s Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Ratings for service-connected disabilities are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran is currently in receipt of a 10 percent rating prior to April 29, 2013, pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7312 (Cirrhosis of the liver). Under that code, a 10 percent rating is warranted where there are symptoms such as weakness, anorexia, abdominal pain, and malaise. A 30 percent rating is warranted where there is portal hypertension and splenomegaly, with weakness, anorexia, abdominal pain, malaise, and at least minor weight loss. A 50 percent rating is warranted where there is a history of one episode of ascites, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy (erosive gastritis). A 70 percent rating is warranted where there is a history of two or more episodes of ascites, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy (erosive gastritis), but with periods of remission between attacks. A 100 percent rating is warranted where there is generalized weakness, substantial weight loss, and persistent jaundice, or; with one of the following refractory to treatment: ascites, hepatic encephalopathy, hemorrhage from varices or portal gastropathy (erosive gastritis). Under Diagnostic Code 7345, which provides the rating criteria for chronic liver disease without cirrhosis (including hepatitis B), a 10 percent disability rating is warranted for intermittent fatigue, malaise, and anorexia; 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 one week, but less than two weeks, during the past 12-month period. A 20 percent disability rating is assigned for daily fatigue, malaise, and anorexia (without weight loss or hepatomegaly) that requires dietary restriction, continuous medication; 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 two weeks, but less than four weeks, during the past 12-month period. A 40 percent disability 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 disability rating is warranted 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. The maximum 100 percent disability rating is warranted for near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). An “incapacitating episode” is a period of acute signs and symptoms that requires bed rest and treatment by a physician. 38 C.F.R. § 4.114, Diagnostic Code 7345, Note 2. With respect to evaluating weight loss, 38 C.F.R. § 4.112 provides the guidance that the term “substantial weight loss” means a loss of greater than 20 percent of the individual’s baseline weight, sustained for three months or longer. The term “minor weight loss” means a weight loss of 10 to 20 percent of the individual’s baseline weight, sustained for three months or longer. The phrase “inability to gain weight” means that there has been substantial weight loss with inability to regain it despite appropriate therapy. “Baseline weight” means the average weight for the two-year period preceding onset of the disease. 38 C.F.R. § 4.112. B. Factual Background Turning to the evidence of record, the Veteran was seen in a private emergency room in December 2005 after complaining of persistent nausea. His weight was 180 pounds, and he denied recent weight loss. He was “markedly jaundiced,” and lab results showed a positive hepatitis B surface antigen. A February 2006 private gastroenterology record shows that the Veteran had abdominal swelling and that he was still jaundiced. The impression was acute hepatitis with possible chronic underlying liver disease and perhaps development of ascites. A February 2006 abdominal ultrasound showed cirrhosis, splenomegaly, and ascites. A March 2006 private gastroenterology record shows that the Veteran “has lost seven pounds since his last visit two weeks ago.” His weight was 170 pounds. A March 2006 liver biopsy showed that the Veteran had chronic hepatitis B and cirrhosis of the liver. An April 2006 EGD showed esophageal varices, without bleeding, and portal gastropathy. An April 2006 private treatment record shows that the Veteran had worsening ascites, and he underwent a large-volume paracentesis. A May 2006 private treatment record shows that the Veteran reported an improved energy level. His vital signs were stable, and his weight was 177 pounds, which was noted to be one pound higher than in April 2006. A July 2006 abdominal ultrasound revealed large volume ascites, and the Veteran underwent paracentesis. The Veteran underwent another paracentesis for ascites in October 2006. A December 2006 VA treatment record shows that the Veteran reported a poor energy level, but he denied nausea, jaundice, and anorexia. A January 2007 private treatment record shows that the Veteran “has had ongoing issues with ascites.” The Veteran reported “a good bit of fatigue,” but he denied confusion and vomiting blood. His weight was 175 pounds, and there was no appreciable jaundice. A March 2007 VA treatment record shows that the Veteran reported fatigue, but he denied nausea, vomiting, and abdominal pain. His weight was 172 pounds. An April 2007 private treatment record shows that the Veteran underwent paracentesis for large volume ascites. An August 2007 private treatment record shows that the Veteran “is requiring paracentesis every three to four months.” On examination, however, he had minimal to no ascites present. He was noted to look “better” with more muscle mass. A December 2007 private treatment record shows that the Veteran had “some ascites,” and he was set up for a paracentesis. His weight was 164 pounds. A May 2008 private treatment record shows that the Veteran’s “requirement for paracentesis has gone down markedly.” He reported that he was doing “somewhat better, but is still fatigued.” On examination, he did “not have much ascites.” In an August 2008 letter, the Veteran’s private physician indicated that the Veteran “has had complications of cirrhosis including ascites, which has required paracentesis on many occasions.” A November 2008 private treatment record shows that the Veteran reported feeling well. He was not jaundiced, and he had no ascites. A February 2009 private treatment record shows that the Veteran reported “no problems in the recurrence of his ascites.” He also denied peripheral edema, jaundice, bleeding, and abdominal pain. He reported feeling “extremely well,” and there were no “real complaints on review of systems.” On examination, there was no jaundice and no detectable ascites. His weight was 174 pounds. No recurrence of ascites was noted during private treatment in October 2009. A February 2010 private treatment record reflects that the Veteran’s ascites had “been under good control and clinically he has little if any.” His weight was 179 pounds. An April 2010 ultrasound showed “chronic liver disease with moderate amount of abdominal ascites.” An October 2010 abdominal ultrasound showed “moderate amount of ascites”, and a November 2010 MRI showed “cirrhosis with portal hypertension and mild ascites.” An August 2010 VA treatment record notes that the Veteran’s ascites had resolved. A September 2011 VA treatment record shows that the Veteran reported stomach discomfort and constipation. His weight was 179 pounds. A February 2012 ultrasound showed a minimal amount of ascites, and the Veteran’s private physician noted that the Veteran’s ascites was “under reasonable control.” The Veteran was afforded a VA examination in September 2012. The examiner indicated that continuous medication was required for control of the Veteran’s liver condition. The examiner also indicated that the Veteran had daily fatigue, intermittent nausea, and daily right upper quadrant pain. The examiner indicated that the Veteran had incapacitating episodes having a total duration of at least one week but less than two weeks in the past 12 months. An October 2012 VA treatment record shows that the Veteran’s weight was 192 pounds. A February 2013 private treatment record shows that the Veteran “has done really well” since his last check-up. An ultrasound showed no evidence of ascites or mass lesions. C. Analysis Upon review of the foregoing evidence, the Board finds that the Veteran is entitled to an initial, 70 percent rating for the entire appeal period under Diagnostic Code 7312 because, since the date of service connection in March 2007, the evidence reflects that the Veteran has had multiple episodes of ascites, with periods of remission between attacks. The Board does not find, however, that a 100 percent rating was warranted prior to April 29, 2013. Under Diagnostic Code 7312, to demonstrate entitlement to a 100 percent rating, the evidence must support a finding of generalized weakness, substantial weight loss, and persistent jaundice. These criteria are conjunctive; all elements must be met. See Melson v. Derwinski, 1 Vet. App. 334 (June 1991) (noting that the use of the conjunctive “and” in a statutory provision meant that all of the conditions listed in the provision must be met). Prior to April 29, 2013, the record showed jaundice that was not persistent and non-substantial weight loss. Although marked jaundice was noted when the Veteran was first hospitalized for his liver disease in December 2005, and the Veteran was still noted to be jaundiced in February 2006, jaundice was not present or reported after February 2006. Thus, jaundice was clearly not persistent during the appeal period. Nor does the evidence of record show substantial weight loss. The Veteran’s baseline weight in 2005 just prior to his diagnosis of cirrhosis of the liver secondary to hepatitis B was 180 pounds. See December 2005 Private Treatment Record. The lowest weight recorded during the appeal period was 164 pounds in December 2007, which reflects an eight percent decrease in the baseline weight. See 38 C.F.R. § 4.112 (providing that the term “substantial weight loss” means a loss of greater than 20 percent of the individual’s baseline weight, sustained for three months or longer). Diagnostic Code 7312 also allows for a 100 percent rating if ascites, hepatic encephalopathy, hemorrhage from varices, or portal gastropathy are refractory to treatment. The evidence does not support such a finding at any point prior to April 29, 2013. Although the evidence reflects that the Veteran had recurrent episodes of ascites since his cirrhosis diagnosis, the record also shows that there was variation in the severity of symptoms and that treatment resulted in periods of remission. As discussed above, although the Veteran underwent multiple treatments for ascites prior to August 2008, no recurrence was noted in February 2009 and October 2009. In February 2010, the Veteran’s private physician noted that the Veteran’s ascites was under good control. Similarly, although there was a recurrence of ascites later in 2010, by February 2012, the Veteran’s ascites was again noted to be “under reasonable control.” Thus, the Board finds that the Veteran’s ascites, while recurring, were not refractory to treatment. Moreover, there is no evidence of hepatic encephalopathy or hemorrhage from varices. While portal gastropathy was noted on one occasion in April 2006, there is no further evidence that it reoccurred or was refractory to treatment. The Board notes that hepatitis B is included in the Veteran’s service-connected liver disability. See June 2014 Rating Decision Code Sheet (indicating that “[h]epatitis B is already associated with the service connected liver disability”). Accordingly, the Board has considered whether a higher or separate rating would be warranted under Diagnostic Code 7345, which evaluates chronic liver disease without cirrhosis, including hepatitis B. Initially, the Board notes that ratings under Diagnostic Codes 7301 to 7329 (inclusive), 7331, 7342, and 7345 to 7348 (inclusive) will not be combined with each other. 38 C.F.R. § 4.114; see also Esteban v. Brown, 6 Vet. App 259, 262 (1994) (the critical element is that none of the symptomatology for any condition is duplicative of or overlapping with the symptomatology of the other condition). Thus, a separate rating under Diagnostic Code 7345 is not warranted. The Board also finds that no higher rating is assignable pursuant to Diagnostic Code 7345. Under Diagnostic Code 7345, a 100 percent rating necessitates near-constant debilitating symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain. Here, prior to April 29, 2013, the evidence does not demonstrate that severity of symptomatology. The September 2012 VA examiner noted daily fatigue, intermittent nausea, and daily right upper quadrant pain, but did not find that any symptoms were near-constant and debilitating. Additionally, the examiner specifically found that incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) had a total duration of at least one week, but less than two weeks, during the past twelve-month period, which further reflects that the Veteran’s symptoms were not near-constant and debilitating. These findings are supported by treatment records showing that while the Veteran often reported fatigue and lack of energy, he also reported that he was generally feeling well, and he regularly denied nausea, vomiting, anorexia, and abdominal pain. The Board concludes that the objective medical evidence and the Veteran’s statements regarding his symptomatology show disability that most nearly approximates that which warrants the assignment of a 70 percent disability rating prior to April 29, 2013. See 38 C.F.R. § 4.7. As shown above, and as required by Schafrath, the Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the Veteran. The Board finds no provision upon which to assign a greater or separate rating. II. Entitlement to a TDIU prior to April 29, 2013 The Veteran filed his claim for entitlement to service connection for a liver disability on March 27, 2007, and he appealed the initial rating assigned. During the pendency of this appeal, he has asserted that he is unemployable as a result of his service-connected liver disability. When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Board thus finds that the Veteran’s claim for a TDIU was constructively received by VA on March 27, 2007, the date on which VA received the Veteran’s claim for entitlement to service connection for a liver disability. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). The term unemployability, as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether the Veteran’s service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a living wage). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the Veteran’s service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995). Consideration may be given to a Veteran’s level of education, special training, and previous work experience in arriving at whether a TDIU rating is warranted, but the Veteran’s age or the impairment caused by nonservice-connected disabilities may not be considered in such a determination. 38 C.F.R. §§ 3.341, 4.16, 4.19. In light of the increased rating granted above, for the entire period on appeal, the Veteran was service-connected for the following disabilities: (i) cirrhosis of the liver, rated as 70 percent disabling; (ii) bilateral pes planus, rated as 10 percent disabling since April 30, 2008; and (iii) umbilical and inguinal hernia, left testicle removal, scar associated with umbilical and inguinal hernia, and scar associated with left testicle removal, all evaluated as noncompensable since April 29, 2013. These disabilities combine to a 70 percent rating, and the Veteran met the schedular criteria for a TDIU outlined above. 38 C.F.R. § 4.16 (a). In a June 2014 rating decision, the Veteran was awarded a TDIU from April 29, 2013. Thus, the remaining question concerns whether the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities prior to April 29, 2013. 38 C.F.R. § 4.16. The evidence shows that the Veteran last worked in December 2005 as a processing assistant at a correctional facility, a position which he purports to have left due to hepatitis and cirrhosis. See November 2013 VA 21-8940. He also worked as a computer installer and an engineering clerk. Id. The Veteran graduated from high school. Id. A November 2013 VA Form 21-4192 shows that the Veteran was separated from his last employment “due to health.” Social Security Administration (SSA) records show that the Veteran was found to be disabled as of December 2005 due to chronic liver disease, cirrhosis, and hepatitis. Although the criteria used by the SSA are not the same as VA criteria for an award of TDIU, and the SSA determination is not binding on VA, such determinations are probative evidence supporting entitlement to a TDIU. See, e.g., Collier v. Derwinski, 1 Vet. App. 413, 417 (1991); Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992); Martin v. Brown, 4 Vet. App, 136 140 (1993). Moreover, there is no adequate reason to reject the SSA determination that is favorable to the Veteran’s TDIU claim. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (in evaluating the evidence and rendering a decision on the merits, the Board is required to assess the credibility and probative value of proffered evidence in the context of the record as a whole); Evans v. West, 12 Vet. App. 22, 26 (1998). Moreover, as the AOJ essentially conceded in its June 2014 rating decision granting entitlement to a TDIU from April 29, 2013, the Veteran’s service-connected liver disability precludes the Veteran from securing and following substantially gainful employment. In that rating decision, the AOJ essentially indicated that because the Veteran’s service-connected liver disability did not warrant an increased rating until April 29, 2013, the Veteran did not meet the schedular criteria for a TDIU rating until April 29, 2013, and, therefore, a TDIU was only warranted from that date. However, as discussed above, the Board finds that the Veteran’s service-connected liver disability warranted an increased rating for the entire appeal period, i.e. since March 2007, the effective date of service connection. After a careful review of the evidence of record, the Board finds that the Veteran was unable to secure or follow a substantially gainful occupation by reason of his service-connected liver disability prior to April 29, 2013. Thus, the Board finds that entitlement to a TDIU is warranted prior to April 29, 2013. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS FOR REMAND As an initial matter, the record reflects that outstanding, relevant non-VA medical records exist but have not been obtained. In this regard, although private treatment records through February 2013 have been requested and obtained, the record shows that the Veteran continues to receive regular, non-VA treatment for his liver disability. See June 2018 VA Treatment Record. Further, VA treatment records show that private treatment records have been scanned into the Veteran’s electronic VA medical record in a system that is distinct from CAPRI. See, e.g., June 2018 VA Treatment Record (scanned abdominal ultrasound and MRI); August 2013 VA Treatment Record (scanned gastroenterology and hepatology records). Thus, the AOJ must attempt to obtain all outstanding VA electronic medical records stored in systems other than CAPRI, including VistA Imaging. Moreover, as the record reflects that the Veteran receives ongoing VA and private treatment, any updated treatment records should be obtained on remand. The Veteran was last afforded a VA examination to assess the severity of his service-connected cirrhosis of the liver in November 2013, over five years ago. While the mere passage of time since the last VA examination does not, in and of itself, warrant additional development, the evidence suggests that the Veteran’s condition may have worsened since the last VA examination. Specifically, VA treatment records show that the Veteran was seen in the emergency department in August 2018 with nausea and abdominal pain. Additionally, in a December 2018 written brief, the Veteran’s representative specifically indicated that the Veteran’s disability had increased in severity and requested a new examination. As worsening symptomatology has been alleged, the Veteran should be afforded a new VA examination to determine the current nature and severity of his service-connected liver condition. See VAOPGCPREC 11-95; Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (determining that Board should have ordered contemporaneous examination of Veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating); Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (holding that where the record does not adequately reveal the current state of that disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination). The matter is REMANDED for the following action: 1. Obtain and associate with the Veteran’s claims file all outstanding VA treatment records dated from August 2018 to the present documenting treatment for the issues on appeal. Additionally, obtain (1) the scanned non-VA records referenced in June 27, 2018 VA treatment records and (2) the scanned non-VA gastroenterology records referenced in the August 13, 2013 VA treatment record. If no such records are located, that fact should be documented in the claims file. 2. Ask the Veteran to provide the names and addresses of all medical care providers who have treated him for the issues on appeal. After securing any necessary releases, request any identified records that are not duplicates of those already associated with the claims file. The Veteran should be specifically asked to provide releases for the private treatment providers who have treated him for his liver disability since February 2013, to include Dr. I.R.W. at MUSC. If any requested records cannot be obtained, the Veteran should be notified of such pursuant to 38 C.F.R. § 3.159 (c). 3. After all available records have been associated with the claims file, the Veteran should be afforded an appropriate VA examination to determine the current nature and severity of his service-connected liver disability (cirrhosis and hepatitis B). The claims file, to include a copy of this remand, must be made available to and be reviewed by the examiner, and the examination report should note that review. All necessary tests and studies should be performed. The examiner should comment upon the Veteran’s treatment history and identify all symptoms and manifestations associated with the Veteran’s hepatitis B, to include any fatigue, malaise, anorexia, weight loss, hepatomegaly, incapacitating episodes marked by physician-prescribed bed rest (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain), and the duration of any such incapacitating episodes. The examiner should also comment on the severity and duration of any associated symptom identified on examination. The examiner should also identify all symptoms and manifestations associated with the Veteran’s cirrhosis of the liver, to include whether the Veteran has symptoms such as weakness, anorexia, abdominal pain, and malaise; portal hypertension; splenomegaly; ascites; hepatic encephalopathy; erosive gastritis; and/or persistent jaundice. The examiner should also comment on the severity and duration of any associated symptom identified on examination. Finally, the examiner should indicate whether any of the Veteran’s symptoms are refractory to treatment. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 4. After completing the requested actions, and any additional notification and/or development deemed warranted, re-adjudicate the claim for an increased rating for a liver disability since April 29, 2013. If the claim remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and be allowed an appropriate period of time for response. The case should be returned to the Board for further appellate review, if otherwise in order. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Kipper, Associate Counsel