Citation Nr: 18109262 Decision Date: 06/07/18 Archive Date: 06/07/18 DOCKET NO. 08-12 571 DATE: June 7, 2018 ORDER The petition to reopen the claim of entitlement to service connection for a respiratory disability is granted. A rating in excess of 20 percent for hepatitis C for the period prior to October 11, 2008, is denied. A 40 percent rating (but no higher) for hepatitis C for the period from October 11, 2008, to January 16, 2009, is granted subject to the regulations governing payment of monetary awards. A 60 percent rating (but no higher) for hepatitis C for the period from January 17, 2009, onward, is granted subject to the regulations governing payment of monetary awards. REMANDED Entitlement to a disability rating in excess of 70 percent for the Veteran’s posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for a respiratory disability is remanded. Entitlement to a total disability rating due to individual unemployability resulting from service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s claim of entitlement to service connection for a respiratory disability was denied by a September 2004 RO rating decision; the appellant was notified of the decision and did not file a notice of disagreement nor submit new and material evidence within the following one year. 2. Evidence submitted since the September 2004 RO rating decision pertaining to the respiratory disability issue includes evidence that is not cumulative and redundant and relates to an unestablished fact necessary to substantiate the claim. 3. For the period prior to October 11, 2008, the Veteran’s hepatitis C did not manifest in hepatomegaly, nor did it manifest in incapacitating episodes having a total duration of at least four weeks, but less than six weeks, during a 12-month period. 4. For the period from October 11, 2008, to January 16, 2009, the Veteran’s hepatitis C manifested in incapacitating episodes having a total duration of at least four weeks, but less than six weeks, during a 12-month period; it did not manifest in substantial weight loss (or other indication of malnutrition) and hepatomegaly. 5. For the period from January 17, 2009, onward, the Veteran’s hepatitis C has manifested in incapacitating episodes having a total duration of at least six weeks, but not occurring constantly; it has not manifested in near-constant debilitating symptoms. CONCLUSIONS OF LAW 1. The criteria for reopening the claim of entitlement to service connection for a respiratory disability have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104(a), 3.156. 2. For the period prior to October 11, 2008, the criteria for a rating in excess of 20 percent for hepatitis C have not been satisfied. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.114, Diagnostic Code 7354. 3. For the period from October 11, 2008, to January 16, 2009, the criteria for a 40 percent rating, but no higher, for hepatitis C have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.114, Diagnostic Code 7354. 4. For the period from January 17, 2009, onward, the criteria for a 60 percent rating, but no higher, for hepatitis C have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.114, Diagnostic Code 7354. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1968 to April 1970. This case comes to the Board of Veterans’ Appeals (Board) on appeal from rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). A February 2007 RO rating decision made the initial rating assignment for the grant of service connection for hepatitis C. A November 2013 rating decision partially granted a claim for a higher rating for PTSD by awarding a 50 percent rating, but denied a higher rating; this decision also denied entitlement to TDIU. (During the pendency of the appeal, a July 2015 RO rating decision further increased the PTSD rating to 70 percent, while denying a higher rating.) A May 2015 rating decision denied service connection for a respiratory disability. The issue of entitlement to increased initial ratings for hepatitis C was originally before the Board in September 2011, when the matter was remanded for additional development. During the processing of the remand, the RO partially granted the claim for increased initial ratings for hepatitis C with a November 2012 rating decision awarding a 60 percent rating effective from October 20, 2011, and maintaining a 20 percent rating in effect prior to that date. The September 2011 Board decision additionally remanded the issues of entitlement to service connection for hearing loss and tinnitus, but those matters were fully resolved by a November 2012 RO rating decision that granted both of those claims. In August 2014, the hepatitis C rating issue and the TDIU issue were before the Board and were remanded for additional development. The prior Board remands in this case were issued by a VLJ other than the undersigned. In February 2018, the Veteran testified at a Board hearing before the undersigned. A transcript of the hearing is of record. The case has now been reassigned to the undersigned VLJ. On the record during the February 2018 Board hearing, the undersigned explained to the appellant that the Board will accept a January 2017 written statement from the Veteran as a substantive appeal sufficient to perfect an appeal of the claim for service connection for a respiratory disability following the January 2017 statement of the case. The Board has taken jurisdiction over that claim. Reopening Claim of Entitlement to Service Connection for a Respiratory Disability As to the matter of whether new and material evidence has been received to reopen the claim of entitlement to service connection for a respiratory disability, the Board is required to consider the question of whether new and material evidence has been received to reopen the claim, without regard to the RO’s determination, in order to establish the Board’s jurisdiction to address the underlying claim and to adjudicate it on a de novo basis. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). A September 2004 rating decision denied the Veteran’s claim of entitlement to service connection for a respiratory disability. No new and material evidence was submitted within a year following the September 2004 denial of the claim. 38 C.F.R. § 3.156(b). The September 2004 RO denial is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104(a), 20.302. The prior final decision denying service connection for a respiratory disability was based in part upon the RO’s finding that the evidence did not show the existence of a diagnosed respiratory disability (“treatment reports … note a cough, but x-ray reports showed no lung abnormality”). The Board finds that new and material evidence has been presented sufficient to reopen this claim. New evidence with medical indications that the Veteran may have asthma includes an April 2015 VA examination report that notes a past diagnosis of asthma in 2004, although expressing uncertainty as to whether the Veteran currently has the condition (“has a normal PFT which is characteristic of asthma, an episodic disease which the veteran may or may not have”). The Board finds that new and material evidence has been submitted on the issue of entitlement to service connection for a respiratory disability, following the prior final denial of that claim. Accordingly, the Board has reopened the claim of entitlement to service connection for a respiratory disability for consideration on the merits at this time. Increased Initial Ratings for Hepatitis C The Veteran seeks an increased rating for his service-connected hepatitis C. The Veteran contends that the ‘staged’ initial ratings currently assigned for his hepatitis C should be increased to reflect greater levels of impairment. Disability ratings are determined by comparing a Veteran’s symptomatology during the pertinent period on appeal with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. Id. 38 C.F.R. § 4.3. With a claim for an increased initial rating, separate “staged” ratings may be assigned based on facts found. Fenderson v. West, 12 Vet. App. 119 (1999). Where the evidence contains factual findings that demonstrate distinct time periods when the service connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, staged ratings are to be considered. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Board has reviewed all of the evidence in the Veteran’s claims file, with an emphasis on the evidence pertinent to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Additional reference to the Veteran’s hepatitis C is presented in additional evidence of record beyond the most detailed pertinent evidence discussed by the Board in this decision. The additional evidence of record does not present findings concerning the Veteran’s hepatitis C that significantly expands upon, revises, or contradicts the findings in the details of the evidence discussed by the Board in this decision. In McGrath v. Gober, 14 Vet. App. 28 (2000), the Court held that when evidence is created is irrelevant compared to when the Veteran was actually experiencing the symptoms. Thus, the Board will consider whether the evidence of record suggests that the severity of pertinent symptoms increased sometime prior to the date of the examination reports noting pertinent findings. The Board has also considered the history of the Veteran’s disabilities prior to the rating period on appeal to see if it supports a higher rating during the rating period on appeal. The Veteran’s service-connected hepatitis C is rated under Diagnostic Code 7354. The criteria set forth under this diagnostic code are intended to rate serologic evidence of a hepatitis C infection and the signs and symptoms due to such an infection. 38 C.F.R. § 4.114, Diagnostic Code 7354. See 38 C.F.R. § 4.114, Diagnostic Codes 7345, 7354. Under Diagnostic Code 7354, a 10 percent 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. 38 C.F.R. § 4.114, Diagnostic Code 7354. A 20 percent rating is warranted for daily fatigue, malaise, and anorexia (without weight loss or hepatomegaly), requiring dietary restriction 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 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. Id. A rating of 60 percent 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. Id. A rating of 100 percent is warranted for near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). 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. See 38 C.F.R. § 4.114, Diagnostic Code 7354, Note (2). For the period prior to October 20, 2011, a 20 percent rating has been assigned for the Veteran’s hepatitis C. The criteria for a higher rating this period requires at least 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 during a 12-month period. A June 2006 VA medical report concerning his hepatitis concerns shows that the Veteran felt well at that time with no complaints. He began a new round of medical treatment at around this time. A September 2006 VA medical report described that he was then “[o]n interferon for Hep C and that makes him feel like he has the flu - no energy.” An October 2006 VA hepatitis examination report describes that the Veteran began to suffer side effects from the treatment, but there was no hepatomegaly (“No organomegaly is discern[i]ble”). The report notes that clinical testing revealed that the Veteran “has normal liver function studies at this time,” and there is no indication of incapacitating episodes of a total duration of at least four weeks during a 12-month period. A separate October 2006 VA medical report shows that the Veteran “feels well, with improvement of his symptoms of fatigue and flu-like symptoms.” A January 2007 VA medical report shows that the Veteran “feels poorly today,” with symptoms including a rash, itching, and various aches and pains. The Veteran felt at that time “the side effects are intolerable.” In February 2007, the Veteran reported that “the Hep c medication he is on makes him feel like he has the flu.” The Veteran completed the treatment in May 2007, but relapsed thereafter (including as discussed in a July 2010 VA medical report). A March 2008 VA medical report shows that the Veteran “continues to complain of daily fatigue and occasional episodes of incapacitation, poor sleep, and weakness. These are daily complaints that he has been experiencing for the past several years.” A July 2010 VA medical report shows that the Veteran was “feeling well today with no new symptoms,” and notes: “He has been doing tractor work for a farmer with a rice field. This provides income and keeps him busy.” A September 2011 VA medical report shows that the Veteran was again “feeling well today with no new symptoms” and was still doing the aforementioned tractor work. The Veteran was “interested in starting the new HCV treatment but wants to start in November after the work season is over.” Significantly, the October 2011 VA hepatitis examination report shows that the Veteran had not experienced weight loss or hepatomegaly, and no prior evidence of record suggests such manifestations of the hepatitis pathology. Rather, the October 2011 VA examination report presented a basis for the existing assignment of a 60 percent rating effective from the date of the examination by indicating that the Veteran had experienced incapacitating episodes of “6 weeks or more” duration “over the past 12 months.” The report describes that the Veteran worked as a tractor driver “3 months a year (July-Sept),” and that “[d]uring those months he worked 4-8 hours a day and 2-5 days.” The report describes that the Veteran “is unable to continue working a steady job since 2007 because his symptoms related to his liver condition such as fatigue and malaise has gotten worse since then, occurring daily and his arthralgias are near constant and at times debilitating about once a week, causing poor sleep.” The report also describes that the Veteran’s “[a]norexia is just intermittent,” and states that this has not caused weight loss due to offsetting “inactivity.” The Board has reviewed the evidence with an eye to determining when the criteria for a rating in excess of 20 percent were first met. The Board notes that the aforementioned March 2008 VA medical report notes “occasional episodes of incapacitation” as of that time, but does not indicate that such episodes had a total duration of at least 4 weeks in a 12 month period. The October 2011 VA examination report refers to the Veteran having experienced “increased symptomatology from 2008,” and separately refers to the Veteran having “severe fatigue in 2006” prior to feeling “somewhat better” in “2007.” The Board finds no sufficiently clear or specific indication of incapacitating episodes (acute signs and symptoms severe enough to require bed rest and treatment by a physician) of at least 4 weeks total duration prior to 2008. The medical evidence in 2008 notably does make mention of “occasional episodes of incapacitation,” and the October 2011 VA examination report refers to an increase in the severity of symptoms in 2008. The Board notes that the aforementioned March 2008 VA medical report referring to “occasional episodes of incapacitation” indicates that this was consistent with the “complaints that he has been experiencing for the past several years.” This is an indication that the duration of any incapacitation noted in early 2008 was consistent with the level experienced in previous years, a level that the Board is unable to find to have involved at least 4 weeks of incapacitation (acute signs and symptoms severe enough to require bed rest and treatment by a physician) of at least 4 weeks total duration in a 12 month period. However, the Board finds that it is possible to reasonably read the October 2011 VA examination report’s description of the Veteran’s symptoms being “debilitating about once a week” since a 2008 increase in severity as explaining how the Veteran’s symptoms may have been incapacitating for a total duration in excess of 6 weeks in a 12 month period without significantly conflicting with the other indications of record. If the Board accepts that the October 2011 VA examiner appears to be using the terms “incapacitating” and “debilitating” somewhat interchangeably, the described duration of incapacitating episodes would have accrued approximately one day per week, or 52 days per year, or between 7 and 8 weeks per year. This level severity is noted to have begun no earlier than 2008. The Board finds that the March 2008 VA medical report showing only “occasional” incapacitation does not appear to indicate weekly incapacitation at that time, but the October 2011 VA examination report presents a credible symptom history that indicates that the increase in severity occurred at some point in 2008. Resolving reasonable doubt in the Veteran’s favor, the Board finds it reasonable to consider the day following the March 28, 2008, VA medical report as the beginning of the period in which the Veteran began to experience approximately weekly incapacitation of one-day duration. The Board shall refer to this period beginning on March 29, 2008, as the weekly incapacitation period. On the basis of the above, the Board finds that the Veteran would have accumulated 4 weeks (28 days) of incapacitating episodes approximately 28 weeks into the weekly incapacitation period. Thus, the earliest identifiable date upon which the Board may find that the Veteran accumulated at least 4 weeks of incapacitation in a 12 month period would be October 11, 2008. The criteria for a 40 percent rating for hepatitis C were therefore met on October 11, 2008. Additionally, on the basis of the above, the Board finds that the Veteran would have accumulated 6 weeks (42 days) of incapacitating episodes approximately 42 weeks into the weekly incapacitation period. Thus, the earliest identifiable date upon which the Board may find that the Veteran accumulated at least 6 weeks of incapacitation in a 12 month period would be January 17, 2009. The criteria for a 60 percent rating for hepatitis C were therefore met on January 17, 2009. As explained above, the Board finds that the criteria for any rating in excess of 40 percent were not met prior to January 17, 2009, for reasons including that the evidence does not show hepatomegaly or sufficient duration of incapacitating episodes (2 weeks in a year) during that period. The Board finds that the criteria for any rating in excess of 20 percent were not met prior to October 11, 2008, for reasons including that the evidence does not show hepatomegaly or sufficient duration of incapacitating episodes (4 weeks in a year) during that period. For the period from October 20, 2011, a 60 percent rating has already been assigned for the Veteran’s hepatitis C. That rating will now be effective from January 17, 2009. The criteria for a higher rating this period (a 100 percent rating) require near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). The October 2011 VA examination report shows that the Veteran had one symptom considered “Near-constant and debilitating” in severity: arthralgia. This VA examination report specifically indicates that the Veteran’s daily fatigue and malaise in addition to the intermittent anorexia are not near-constant and debilitating. The VA examiner noted that there was no occurrence of nausea, vomiting, or weight loss. A November 2011 VA medical report shows that the Veteran “is feeling well today with no new symptoms,” and “wants to start the new HCV treatment today.” Reports following his hepatitis C treatment from January 2012, February 2012, and March 2012 do not suggest any presence of near-constant debilitating symptoms. An April 2012 report shows that the Veteran described “inability to get quality rest/low energy, rash and persistent non-productive cough.” Later that month, he reported “getting some rest,” but “compared to prior HCV treatment, his quantity and quality or rest has decreased.” The Veteran also reported “occasional left lower leg swelling and cramping.” Another April 2012 report shows that the Veteran had noted some dental problems, “some rash,” and that “[o]ther than this he is tolerating treatment well.” A May 2012 report shows that the Veteran found that the treatment “interferes with his restful sleep and feels tired most of the time.” A June 2012 report again discusses the Veteran’s dental and skin concerns, and another report from June 2012 discusses the Veteran’s concerns as to whether his headaches were also side-effects of the hepatitis treatment. A July 2012 VA medical report shows that the Veteran complained of “feeling lethargic with constant fatigue, want to sleep all day, aching body and whole body pain.” The Veteran was diagnosed at that time with anemia as “likely side effect of hepatitis C treatment,” and the treatment was scheduled to conclude in early August 2012. A later 2012 VA treatment report notes that the Veteran “expressed concerns over how long until the side effects from treatment end and it was explained to the patient that it varies, but he should start to feel better in a month or two.” A November 2012 report shows that “his sleep improved since” the completion of his hepatitis C treatment, and refers to him having “felt tired most of the time” in the past tense with reference to the time of the past treatment. Significantly, an October 2013 VA examination report shows that the Veteran “[d]enies incapacitating episodes,” and also “[d]enies malaise, nausea, vomiting, anorexia, or arthralgia.” The VA examiner further confirmed a conclusion that the Veteran had not experienced any incapacitating episodes in the prior 12 months. The report shows that the Veteran “[d]oes not feel his hepatitis alone would prevent him from working more if he could work a more sedentary job.” The VA examination report showed that the Veteran had “[i]ntermittent” fatigue and right upper quadrant pain, but no other significant symptoms. A June 2014 VA medical report shows “HCV treatment successful with SVR,” such that the Veteran was cleared for “discharge from hepatology clinic at this time.” The Board finds that the evidence over the course of the months and years following the October 2011 VA examination report depicts fatigue and arthralgia that was less than the “near-constant debilitating symptoms” contemplated by the criteria for the next-higher disability rating of 100 percent. The October 2011 VA examination report itself refers only to the single symptom of arthralgia as near-constant and debilitating at that time, and then a July 2012 VA medical report describes complaints of “constant fatigue, want to sleep all day, aching body and whole body pain” that are indicated to have resolved with the conclusion of the treatment in August 2012. The evidence otherwise indicates that despite some waxing and waning of symptom severity at various times, including with regard to changes in medical treatment, the Veteran’s hepatitis C pathology has not been productive of “near-constant debilitating symptoms” meeting the criteria for a 100 percent rating for a duration. The Board notes that relatively brief periods of symptoms do not appear to be validly “near-constant” for these rating purposes, especially in light of the fact that the rating criteria of Diagnostic Code 7354 are otherwise structured with reference to the duration of symptoms over the course of a 12-month period to qualify for pertinent ratings. Accordingly, the Board is unable to find that the criteria for a rating in excess of 60 percent for hepatitis C have been met. In summary, resolving reasonable doubt in the Veteran’s favor, the Board finds that partially increased ratings for hepatitis C are warranted for some portions of the periods on appeal in this case. The preponderance of the evidence is against finding that the criteria for any increased rating assignments have been met for the Veteran’s hepatitis C for the period prior to October 11, 2008. For the period from October 11, 2008, to January 17, 2009, the criteria for a 40 percent rating (but no higher) have been reasonably met. For the period from January 17, 2009, to the present, the criteria for a 60 percent rating (but no higher) have been reasonably met. The preponderance of the evidence is against finding that the criteria for any further increased ratings have been met for hepatitis C in this case. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND Service Connection for a Respiratory Disability The Board has found that new and material evidence has been submitted to reopen the claim of entitlement to service connection for a respiratory disability. The Veteran was afforded a VA examination addressing this matter in April 2015, and the April 2015 VA examination report presents an opinion that relies in part upon finding that “[t]he veteran has no diagnosable respiratory condition …. The veteran has had some wheezing in recent years but has a normal PFT which is characteristic of asthma, an episodic disease which the veteran may or may not have.” The Veteran testified during his February 2018 Board hearing that he experienced “respiratory problems in the service,” but did not receive medical treatment for these problems. The April 2015 VA examination report of record presents a medical opinion that relies in part upon the assertion that the Veteran “may” currently have asthma, but he “did not have this either prior to service or during his service career.” The Board must carefully consider this assertion as it is a key predicate of the medical opinion presented by the April 2015 VA examiner. However, the Board is unable to find that this assertion is explained with full consideration of the pertinent facts. Not only does the Veteran’s testimony indicate that he experienced respiratory problems during service, but his service records at least partially corroborate his testimony in this regard. The Veteran’s February 1968 entrance examination includes a medical history questionnaire that documents that the Veteran reported a history of “SHORTNESS OF BREATH” leading into service. The Board finds this contemporaneous notation of the Veteran reporting shortness of breath at the time of his entrance to service to lend further credibility to the Veteran’s recent testimony that he experienced similar respiratory problems during his period of service. The Board finds that the VA examiner’s assertion that the Veteran did not have asthma (or any pertinent respiratory disability) prior to or during service is inadequately explained because the VA examiner did not acknowledge or discuss the credible indications of record that the Veteran did experience shortness of breath before and during his military service. Accordingly, a remand for a new VA medical opinion is warranted. Additionally, the Veteran’s VA medical records document that treatment for his service-connected hepatitis C involved prolonged periods of taking combinations of medications with significant side-effects impacting the Veteran’s overall health. Notably, a June 2006 VA medical report lists the possible side-effects of a round of the Veteran’s hepatitis C treatment and included “anemia” with instructions indicating that this side-affect may be manifested by “SOB [shortness of breath].” It is notable, then, that a July 2012 VA medical report documents that the Veteran was noted to have actually developed anemia as a “likely side effect of hepatitis c treatment.” The Veteran’s claim of entitlement to service connection for a respiratory disability includes his report of symptoms involving shortness of breath, and his treatment for service-connected hepatitis C has caused a side-effect that is medically indicated to potentially cause shortness of breath. As this matter must be remanded for new medical opinion in any event, a new medical opinion regarding whether the treatment for the service-connected hepatitis C may have caused or aggravated the Veteran’s shortness of breath will also be helpful to ensuring fully informed consideration of the Veteran’s claim under all applicable theories of service connection (including secondary service connection). Increased Rating for PTSD During the February 2018 Board hearing, the Veteran and his representative notified the Board that the Veteran receives ongoing mental health treatment at The Vet Center, and indicated that records of this treatment are pertinent to his PTSD claim on appeal. The Veteran’s representative indicated that “I do know that we have to get those records….” The record was held open for 60 days to afford the Veteran and his representative the opportunity to submit the records for the Board’s review, but they have not been received. A remand is necessary to assist the Veteran in obtaining the identified pertinent treatment records.   TDIU The appeal seeking a TDIU is inextricably intertwined with the pending appeals concerning the Veteran’s PTSD rating and his claim of entitlement to service connection for a respiratory disability. The Court has held that two issues are “inextricably intertwined” when they are so closely tied together that a final decision cannot be rendered unless both issues have been considered. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Thus, the Board must defer final adjudication of the claim seeking TDIU until the separate appeals regarding the Veteran’s PTSD ratings and respiratory disability have been prepared for final Board review (or otherwise resolved). The matters are REMANDED for the following action: 1. The AOJ should secure for the record copies of complete updated clinical records (any not already of record) of all VA and/or private treatment the Veteran has received for his disabilities on appeal. 2. Ask the Veteran to complete a VA Form 21-4142 for the Vet Center location/locations from which he has been receiving mental health treatment. After authorization is received, obtain any mental health treatment records from the identified source/sources. Document all requests for information as well as all responses in the claims file. 3. Obtain addendum opinions from an appropriate clinician regarding the following. (a) Is the Veteran’s asthma (or any respiratory disability) at least as likely as not related to an in-service injury, event, or disease? In providing this opinion, please specifically discuss, as necessary, the Veteran’s February 1968 report of a history of shortness of breath and his recent credible testimony that he experienced shortness of breath during his military service. (b) If the Veteran’s asthma (or any respiratory disability) is found to have existed during the Veteran’s military service, is it clear and unmistakable (undebatable) that it preexisted the Veteran’s service? (c) If the examiner finds it did clearly and unmistakably preexist service, please opine whether it was clearly and unmistakably (undebatably) not aggravated by service. (d) Is the Veteran’s asthma (or any respiratory disability) at least as likely as not proximately due to his treatment for service-connected hepatitis C? In providing this opinion, please specifically discuss, as necessary, the Veteran’s VA medical records indicating that the Veteran developed anemia as a likely side-effect of his service-connected hepatitis C treatment and that anemia may cause or exacerbate shortness of breath. (e) Is the Veteran’s asthma (or any respiratory disability) at least as likely as not aggravated by service-connected disability. In providing this opinion, please specifically discuss, as necessary, the Veteran’s VA medical records indicating that the Veteran developed anemia as a likely side-   effect of his service-connected hepatitis C treatment and that anemia may cause or exacerbate shortness of breath. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Barone, Counsel