Citation Nr: 1806511 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 13-25 688 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to a rating in excess of 10 percent prior to March 5, 2012 and in excess of 30 percent therefrom for service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to an initial compensable rating prior to March 5, 2012, a rating in excess of 20 percent from March 5, 2012 to May 20, 2016, and a rating in excess of 40 percent from May 20, 2016, for service-connected hepatitis C. 3. Whether new and material evidence has been received sufficient to reopen a claim for entitlement to service connection for a heart disorder. 4. Entitlement to service connection for a heart disorder, to include as secondary to PTSD. 5. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD P. E. Metzner, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1972 to February 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Appeals Management Center and from a December 2011 rating decision of the VA Regional Office (RO) in Montgomery, Alabama. Jurisdiction presently resides at the RO in Jackson, Mississippi. During the current appeal, in October 2012, the RO issued a rating decision granting a 30 percent rating for PTSD and 20 percent rating for hepatitis C, effective March 5, 2012. Thereafter, in April 2017, the RO issued another rating decision granting a 40 percent rating for hepatitis C, effective May 20, 2016. As these awards do not constitute a full grant of the benefits sought, the claims for higher ratings remain on appeal. AB v. Brown, 6 Vet. App. 35, 39 (1993). After a thorough review of the record, the Board finds that the Veteran has continued his appeal regarding the increased rating claim for PTSD from an earlier rating decision. In pertinent part, in the December 2011 rating decision, the RO denied the Veteran's claim for an increased rating for PTSD. Although the Veteran did not file a notice of disagreement with this rating decision, in March 2012, he submitted a statement indicating that he intended to file a "service connection" claim for PTSD and that he was he was no longer able to work. Additional relevant evidence consisting of various buddy statements regarding PTSD, were added to the record in March 2012, suggesting a reasonable possibility of an increase in severity of the Veteran's PTSD. Thus, as the Veteran submitted statements that, in effect, indicated his desire to continue with his PTSD claim and new and material evidence pertaining to this claim was submitted within one year of the December 2011 rating decision, the Board has determined that the December 2011 rating decision remained pending as it pertained to the increased rating claim for PTSD. Courts have held that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions received during the year following notice of a rating decision to determine whether they contain new and material evidence, even if the new submission may support a new claim. See Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). In light of the foregoing, the Board has recharacterized the increased rating claim for PTSD to include the period prior to March 5, 2012. The Board has removed the earlier effective date claim for PTSD, as keeping this claim would be redundant of the increased rating claim on appeal. Notably, it is more favorable to the Veteran to characterize his claim as one for an increased rating than an earlier effective date. Similarly, the Board notes that following the May 2011 rating decision that granted an initial noncompensable rating for hepatitis C, new and material evidence was received as of November 2011, indicating that the Veteran's liver function test (LFT) had elevated. See VA Medical Center (VAMC) records. Thus, the RO should have classified the submission as new and material evidence for a pending claim, not as an increased rating claim. See 38 C.F.R. § 3.156(b) (directing that new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period); Bond, 659 F.3d at 1367-8. Accordingly, the Board has recharacterized the issues on the title page to reflect consideration of the previous pending May 2011 rating decision. The Board has also removed the earlier effective date claim for hepatitis C, as keeping this claim would be redundant of the increased rating claim on appeal. As explained above, this is more favorable to the Veteran. Finally, as the Veteran has been diagnosed with multiple heart issues, to include myocardial infarction and coronary artery disease, the Veteran's claim for service connection for a heart attack has been recharacterized more broadly, as noted on the cover page. In August 2017, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing. A transcript of the hearing has been associated with the claims file. At the videoconference hearing, the Veteran submitted additional evidence with a waiver of initial Agency of Original Jurisdiction (AOJ) consideration. 38 C.F.R. § 20.1304 (2017). He also sought, and was granted, a 60-day abeyance period for the submission of additional evidence. 38 C.F.R. § 20.709 (2017). In October 2017, the Veteran submitted additional evidence/argument. The issues of entitlement to service-connection for a heart disorder and a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Prior to March 5, 2012, the Veteran's PTSD was productive of no more than occupational and social impairment due to mild or transient symptoms with decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. 2. From March 5, 2012, the Veteran's PTSD was productive of no more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 3. Prior to March 5, 2012, the Veteran's hepatitis C was nonsymptomatic and did not result in 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. 4. From March 5, 2012 to May 20, 2016, the Veteran's hepatitis C was manifested primarily by symptoms of fatigue; it did not result in 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. 5. From May 20, 2016, the Veteran's hepatitis C was manifested by daily fatigue, minor weight loss, nausea, vomiting, and the use of continuous medication; it was not productive of substantial weight loss (or other evidence of malnutrition) and did not result in hepatomegaly or incapacitating episodes. 6. An unappealed November 2004 rating decision denied service connection for a heart attack. 7. Evidence received since the final November 2004 rating decision is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a heart disorder. CONCLUSIONS OF LAW 1. For the period prior to March 5, 2012, the criteria for a disability rating in excess of 10 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107(b), 5110 (2012); 38 C.F.R. §§ 3.102, 4.130, Diagnostic Code (DC) 9411 (2017). 2. For the period from March 5, 2012, the criteria for a disability rating in excess of 30 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107(b), 5110 (2012); 38 C.F.R. §§ 3.102, 4.130, Diagnostic Code (DC) 9411 (2017). 3. For the period prior to March 5, 2012, the criteria for an initial compensable disability rating for hepatitis C have been not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.114, Diagnostic Code (DC) 7354 (2017). 4. For the period from March 5, 2012 to May 20, 2016, the criteria for an initial disability rating in excess of 20 percent for hepatitis C have been not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.114, Diagnostic Code (DC) 7354 (2017). 5. For the period from May 20, 2016, the criteria for an initial disability rating in excess of 40 percent for hepatitis C have been not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.114, Diagnostic Code 7354 (2017). 6. The November 2004 rating decision that denied service connection for a heart attack is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 7. New and material evidence has been received to reopen the claim for entitlement to service connection for a heart disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was met. The Veteran has not alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, VA's duty to notify is satisfied. As to VA's duty to assist, the Board finds that all necessary development has been accomplished. Therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). In that regard, the Veteran's service treatment records and pertinent post-service treatment records (including Social Security Administration records) have been obtained. The Veteran was also afforded adequate VA examinations. Significantly, neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Increased Rating Claims Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability. 38 C.F.R. §§ 4.1, 4.2 (2017); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Hart v. Mansfield, 21 Vet. App. 505 (2007) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)). I. Increased Rating Claim - PTSD The Veteran's PTSD, like all psychiatric disorders, is rated under the General Rating Formula for mental disorders. Under the General Rating Formula, a rating of 10 percent is assigned for a mental disorder that results in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. A rating of 30 percent is assigned for a mental disorder that results in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A rating of 50 percent is warranted for a mental disorder that results in occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Importantly, evaluations under § 4.130 are symptom-driven, meaning that symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). Severity and duration of the symptoms also play an important role in determining the rating. Id. at 117. The Board notes however that the list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating and are not meant to be exhaustive. The Board need not find all or even some of the symptoms to award a specific rating. 38 C.F.R. § 4.21; Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows the Veteran suffers symptoms listed in the rating criteria or symptoms of similar severity, frequency, and duration, that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443. Global Assessment of Functioning (GAF) scale scores are based on a scale indicating the psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness. Carpenter v. Brown, 8 Vet. App. 240 (1995); Richard v. Brown, 9 Vet. App. 266 (1996); American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders, 4th Ed. (1994) (DSM-IV). The GAF score is based on all of the Veteran's psychiatric impairments. A GAF score of 51 to 60 represents moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with coworkers). A GAF score of 61 to 70 represents mild symptoms (e.g., depressed mood and mild insomnia) or difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships. While particular GAF scores are not contained in the VA schedule of ratings for mental disorders, they are a useful tool in assessing a veteran's disability and assigning ratings. 38 C.F.R. § 4.130 (2017). However, they are just one of many factors considered when determining a rating. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit-of-the doubt in resolving each such issue shall be given to the veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. In the case at hand, the Veteran is currently assigned a disability rating of 10 percent prior to March 5, 2012 and 30 percent therefrom, for his service-connected PTSD. Throughout the appeal period, however, the Veteran has continually asserted that he is entitled to higher ratings for that disability. Nonetheless, as will be discussed more fully below, the Board finds that an increased rating is not warranted for either period on appeal. Prior to March 5, 2012 In November 2011, the Veteran underwent a VA examination to assess the current severity of his PTSD. The examiner reported symptoms of anxiety, chronic sleep impairment, disturbances of motivation and mood, recurrent distressing dreams, avoidance, difficulty concentrating, and hypervigilance. In spite of these symptoms, the Veteran reported that he had a good relationship with his wife, children and grandchildren. He also routinely attended church and helped with his mother who was in poor health. The examiner found that the Veteran's symptoms resulted in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. The examiner also assessed the Veteran with a GAF score of 65. VA outpatient records from October 2011 indicate that the Veteran had symptoms of nervousness, seclusion, and nightmares 3 to 4 times a week. He was prescribed medication for management of anxiety, insomnia, and nightmares. The VA treatment provider recorded a GAF score of 80. In an outpatient treatment note from November 2011 the Veteran also complained of depression, irritability, intrusive thoughts, and nightmares. In light of the evidence above, the Board finds that for the period prior to March 5, 2012, the criteria for a higher 30 percent rating are not met. Chiefly, the totality of the Veteran's disability picture does not demonstrate that his service-connected PTSD resulted in symptoms productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (i.e., 30 percent rating). Rather, although the Veteran's reported symptoms included those found in the criteria for higher ratings (e.g., anxiety, sleep impairment, suspiciousness, and seclusion), the overall evidence shows that the impact of his symptoms was mild. Mauerhan, 16 Vet. App. at 443. In particular, the Veteran reported no problems with relationships - he had a good relationship with his wife, children, and grandchildren, and he helped to take care of his mother and also attended church regularly. Moreover, the Board finds that the Veteran's GAF scores of 65 and 80 reflect mild symptomatology and are consistent with the assigned rating. The appropriate equivalent rating for mild symptomatology is the currently assigned 10 percent rating. See 38 C.F.R. § 4.130, Diagnostic Code 9411. From March 5, 2012 On September 2012 VA examination, the Veteran reported symptoms of recurrent and distressing recollections, markedly diminished interest or participation in significant activities, difficulty concentrating, exaggerated startle response, depressed mood, chronic sleep impairment, and mild memory loss. The examiner found that these symptoms resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, (although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation normal). The examiner assessed the Veteran with a GAF of 60. In May 2016, the Veteran underwent another VA examination to determine the current severity of his PTSD. The Veteran reported symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, hypervigilance, problems with concentration, sleep disturbance, markedly diminished interest or participation in significant activities, and feelings of detachment or estrangement from others. The examiner found that these symptoms resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The examiner also stated that there was no new medical evidence available for review that indicated an increase in the severity of the Veteran's PTSD. VA outpatient treatment records also document symptoms of depression, anxiousness, nightmares, flashbacks, and poor sleep. However, the most recent treatment records indicate that the Veteran's mood has been stable and sleep improved. See November 2016 VA Medical Center (VAMC) records. Moreover, recent mental status examinations indicated he was cooperative and clean; had no anxiety, panic, or depression; had a cooperative demeanor; affect was appropriate; thought process was linear and goal directed; thought content normal; level of intelligence was average; and judgment was intact. Id. Buddy statements provided by the Veteran's family and friends indicate that the Veteran suffers from symptoms of nightmares, lack of sleep, periods of forgetfulness, antisocial behavior, depression, periods of stress/anxiety. See March 2012, September 2013, January 2014, August 2017, and October 2017 Buddy Statements. Based on the foregoing evidence, the Board finds that, for the period from March 5, 2012, an increased rating for PTSD is not warranted. The Board acknowledges that the Veteran displayed some symptoms associated with higher ratings. Nonetheless, the Board has determined that the severity of the documented symptoms do not equate to occupational and social impairment with reduced reliability and productivity (i.e., a 50 percent rating). Rather, the severity of the Veteran's symptoms more closely approximates the criteria for a 30 percent rating. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013); see also Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002) (the list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, and are not meant to be exhaustive). In denying a higher rating for the period from March 5, 2012, the Board acknowledges that in the May 2016 VA examination report, it was noted by the examiner that occupationally, the Veteran had remained disabled since his prior examination. However, after reading the entirety of the VA examination report, it is clear that this notation was not an opinion by the examiner that the Veteran's PTSD symptomatology, by itself, caused total occupational and social impairment. (Chiefly, the VA examiner did not specifically find that the Veteran's PTSD caused total occupational and social impairment, but, rather, found that it caused a decrease in work efficiency.) Instead, the examiner was merely noting the fact that the Veteran was not employed and in receipt of disability benefits from Social Security Administration's (SSA). In this regard, also of record is an August 2005 favorable disability determination from SSA, which found the Veteran disabled and unable to engage in substantial gainful activity based on a combination of his impairments, including severe cardiovascular and mental impairments. The Board also acknowledges a September 2012 unemployability opinion from Dr. G. N., in which he opined that as a result of the Veteran's medical problems (degenerative joint disease, nightmares, one reported hallucination, chronic insomnia and nervousness, and anxiousness and depression) the Veteran was totally and permanently disabled. This opinion is based on the combined impact of the Veteran's impairments and does not indicate specifically that the Veteran's PTSD symptomatology warrants a higher rating than assigned. Thus, the Board assigns this opinion little to no probative value for the Veteran's increased rating claim. At the August 2017 Board hearing, the Veteran asserted that his PTSD had worsened beyond the current rating assigned. In particular, he reported symptoms of hypervigilance, daily nightmares, roaming behavior at night, depression, and panic attacks two to three times per week. However, the Board is careful to note that the record is devoid of clinically documented evidence of panic attacks. Furthermore, as noted above, the Veteran's treatment records indicate that his symptoms have improved. Accordingly, the Board assigns the Veteran's testimony, as it relates to the worsened symptoms and to panic attacks, little to no probative value. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (Although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). As the preponderance of evidence is against the Veteran's claim for a rating in excess of 10 percent prior to March 5, 2012 and in excess of 30 percent therefrom, the benefit of the doubt doctrine is not for application. 38 C.F.R. § 5107. Accordingly, the increased rating claim for PTSD must be denied. II. Initial Increased Rating Claim - Hepatitis C The Veteran's hepatitis C is rated under 38 C.F.R. § 4.114, Diagnostic Code 7354. Under Diagnostic Code 7354, a 10 percent rating is warranted when the disability results in 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 rating is warranted when the disability results in daily fatigue, malaise, and anorexia (without weight loss or hepatomegaly), requiring dietary restrictions or 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. Id. A 40 percent rating is warranted when the disability results in 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 twelve-month period. Id. A 60 percent rating is warranted when the disability causes 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 twelve-month period, but not occurring constantly. Id. For purposes of evaluating conditions under Diagnostic Code 7354, "incapacitating episode" means a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician. Id. at Note 2. 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. See 38 C.F.R. § 4.112. 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. Id. "Baseline weight" is the average weight for the two-year period preceding onset of the disease. Id. In the case at hand, the Veteran is currently assigned an initial noncompensable disability rating prior to March 5, 2012, a 20 percent disability rating from March 5, 2012 to May 20, 2016, and a 40 percent disability rating from May 20, 2016, for his service-connected hepatitis C. The Veteran contends, however, that he is entitled to a higher rating for his service-connected hepatitis C. Nevertheless, after a thorough review of the evidence, the Board has determined that a higher rating is not warranted for entirety of the appeal period. Prior to March 5, 2012 In July 2010, the Veteran underwent a VA examination to determine the current severity of his hepatitis C. The examiner indicated that the Veteran tested positive for hepatitis C in December 2003. However, the Veteran was nonsymptomatic. In fact, his hepatitis C was considered to be in a convalescent period. VAMC records are also silent for associated symptomatology prior to March 5, 2012. In relevant part, in May 2005, on follow-up for PTSD and hepatitis C, the Veteran reported that he had been well, and despite some lower back pain, he had no other complaints. In February 2006, the Veteran denied having any current problems with his hepatitis C. Significantly, the record indicates that the Veteran actually gained weight following his hepatitis C diagnosis. See June 2004, May 2005, April 2007, and February 2012 VAMC records. The Board acknowledges the June 2004 Disability Report that documents the Veteran's reports of chronic fatigue due to his disabilities of myocardial infarction, coronary artery bypass surgery, hypertension, hepatitis C, and chronic fatigue. However, the Veteran indicated that this fatigue was linked to his activity and heart attack. Furthermore, although the Veteran reported chronic fatigue in June 2004, contemporaneous treatment records are silent for any reports of fatigue. The Board also acknowledges that, in September 2008, VAMC records indicated the Veteran experienced fatigue. However, this appears to be an acute incidence of fatigue associated with the Veteran's overall mental state, as the symptom was reported as part of a suicide risk evaluation. Based on the foregoing evidence, the Board finds that, prior to March 5, 2012; the Veteran's hepatitis C remained largely nonsymptomatic. As such, for this period, a compensable rating is not warranted. From March 5, 2012 to May 20, 2016 In September 2012, the Veteran underwent a VA examination to determine the current severity of his hepatitis C. The examiner indicated that the Veteran experienced daily fatigue as a result of his hepatitis C. However, the examiner found that the Veteran did not experience incapacitating episodes or weight loss. The examiner also found the Veteran's hepatitis C impacted his ability to work in that he would be tired. The Veteran also submitted statements from his spouse regarding the symptomatology of his hepatitis C. See January 2014 Buddy Statement. She indicated that the Veteran had suffered from fatigue, pain in joints, nausea, and weight loss in the last six to seven months. Despite the spouse's statement above, the record does not support a finding that the Veteran experienced weight loss as a result of his hepatitis C. In relevant part, the Board acknowledges that VA treatment records do, in fact, document substantial weight loss in January 2014 - the Veteran went from a baseline weight of 203 pounds to 159 pounds. However, the record indicates that such weight loss was the result of rectal cancer and subsequent November 2013 colorectal surgery. See January 2014 VA Examination. Significantly, prior to his rectal cancer diagnosis of May and July 2013, the Veteran's weight was relatively stable: 209 pounds in April 2012 and 206 pounds in March 2013. Moreover, following his colorectal surgery, the record shows an increase in weight to 180 pounds in August 2017 and to 195 pounds as of March 2015. Therefore, for the period prior to May 20, 2016, the record does not show sustained weight loss due to hepatitis C. Accordingly, the Board finds that, for the period from March 5, 2012 to May 20, 2016, the Veteran did not demonstrate symptomatology consisting of weight loss, hepatomegaly, and/or incapacitating episodes, such that he would be entitled to a higher 30 percent rating. Rather, for this period, the Veteran is adequately rated at 20 percent for symptoms of daily fatigue, nausea, and pain in joints.. From May 20 2016 The Veteran most recently underwent a VA examination in May 2016 to evaluate the current severity of his hepatitis C. The Veteran reported symptoms of daily fatigue, intermittent nausea and vomiting, and weight loss (baseline 183 to 175). Significantly, however, the Veteran's CT scan was normal, there were no incapacitating episodes, and the examiner indicated that hepatitis C would not impact the Veteran's ability to work. In August 2017, the Veteran submitted a statement from his spouse. She indicated that the Veteran suffered from chronic fatigue, weight loss, pain in joints, nausea, and stomach issues. At the August 2017 Board hearing, the Veteran testified that his current symptoms lasted the entire year, and included: daily fatigue, pain in the upper right quadrant, loss of appetite, loss of weight, and debilitating pain. Based on the evidence above, the Board concedes that the Veteran experienced "minor weight" loss as indicated in the May 2016 VA examination. However, to the extent that the spouse's August 2017 buddy statement and/or the Veteran's testimony above implies that his symptoms resulted in substantial weight loss, the Board finds that these statements are outweighed by the medical evidence of record. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995). In relevant part, the record indicates that instead of losing weight the Veteran has been gaining weight. See February 2017 VAMC records. Specifically, 24 pounds since March 2016. Id. Additionally, the evidence of record does not show that the Veteran experienced substantial weight loss, hepatomegaly and/or incapacitating episodes. Accordingly, a higher 60 percent rating is not warranted. In conclusion, when applying the rating criteria, the evidence of record does not support an initial compensable rating prior to March 5, 2012, a rating higher than 20 percent from March 5, 2012 to May 20, 2016, and a rating higher than 40 percent from May 20, 2016, for service-connected hepatitis C. In this regard, the weight of the evidence is against a finding that, prior to March 5, 2012, the Veteran exhibited any symptoms related to his hepatitis C and that, from March 5, 2012 to May 20, 2016, the Veteran's hepatitis C resulted in minor weight loss and hepatomegaly, or; incapacitating episodes having a total duration of at least four weeks, but less than six weeks, during the past 12-month period. The weight of the evidence is also against a finding that, from May 20, 2016, the Veteran's hepatitis C resulted in substantial weight loss and hepatomegaly, or; incapacitating episodes having a total duration of at least six weeks during any twelve-month period. Accordingly, for the entirety of the appeal period, the preponderance of the evidence is against assigning a higher rating for hepatitis C, and the Veteran's claim is denied. New and Material Evidence - Heart Disorder A claim that has been denied in an unappealed RO decision or an unappealed Board decision may not then be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence means evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Board has jurisdictional responsibility to determine on its own whether there is new and material evidence to properly reopen a service-connection claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C. §§ 5108, 7105(c)); see also Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996); VAOPGCPREC 05-92. The submission of "new and material" evidence is a jurisdictional prerequisite to the Board's review on the merits of a previously-denied claim. In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In November 2004, the RO denied service connection for a heart attack, claimed as secondary to PTSD. See November 2004 Rating Decision. The basis of the RO's denial was that PTSD was not a service-connected disability and there was no evidence showing that the Veteran's heart attack had been incurred in or aggravated by military service. The Veteran did not appeal that denial, or submit new and material evidence within one year of that decision, and it became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(a), (b). Thereafter, in July 2011, the Veteran's submitted another claim for service connection for a heart attack. See July 2011 Claim. Since the November 2004 rating decision, the Veteran has established service connection for PTSD. It continues to be his contention that his heart disorder is related to his PTSD. Accordingly, the claim for service connection for a heart disorder is reopened. (CONTINUED ON NEXT PAGE) ORDER A rating in excess of 10 percent prior to March 5, 2012 and in excess of 30 percent therefrom for service-connected PTSD is denied. An initial compensable rating prior to March 5, 2012, a rating in excess of 20 percent from March 5, 2012 to May 20, 2016, and a rating in excess of 40 percent from May 20, 2016, for service-connected hepatitis C is denied. As new and material evidence sufficient to reopen the previously denied claim for service connection for a heart disorder has been received, the application to reopen this issue is granted. REMAND In September 2012, the Veteran underwent a VA examination to assess the etiology of his heart disorder. The VA examiner noted that the Veteran suffered from a myocardial infarction in 2003 and had coronary artery disease. After evaluation, the VA examiner opined that the Veteran's claimed condition was less likely than not proximately due to or the result of the Veteran's service-connected PTSD. However, the VA examiner failed to provide an opinion as to whether service-connected PTSD aggravated his heart disorder. Accordingly, the Board finds that remand is warranted for a new VA examination and opinion consistent with the directives herein. The Board notes that consideration of entitlement to a TDIU is dependent upon the impact of service-connected disabilities on a Veteran's ability to obtain or retain substantially gainful employment. The matter of a TDIU is therefore inextricably intertwined with the claim for service connection for a heart disorder. Harris v. Derwinski, 1 Vet. App. 180 (1991). Thus, remand of the inextricably intertwined TDIU claim is also required. Accordingly, the case is REMANDED for the following actions: 1. Obtain any outstanding records of pertinent medical treatment from VA or private health care providers. With the Veteran's assistance, obtain copies of any pertinent records and add them to the claims file. 2. After the above records request has been completed, schedule the Veteran for a VA examination with an appropriate examiner to determine the nature and etiology of his heart disorder. The examiner must review pertinent documents in the Veteran's claims file in conjunction with the examination. All indicated studies should be completed. All findings must be fully reported. The examiner must provide an opinion regarding whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's heart disorder was caused or aggravated by his service-connected PTSD. Aggravation in this context is defined as "any increase in disability." See Allen v. Brown, 7 Vet. App. 439, 448 (1995). The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. After the requested development has been completed, the RO shall review and readjudicate the claims on appeal. If any decision is adverse to the Veteran, he and his representative shall be furnished a Supplemental Statement of the Case and provided with the opportunity to respond. Thereafter, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ A. ISHIZAWAR Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs