Citation Nr: 20078941 Decision Date: 12/15/20 Archive Date: 12/15/20 DOCKET NO. 16-49 784 DATE: December 15, 2020 ORDER Entitlement to service connection for hepatitis B is dismissed. Entitlement to service connection for human immunodeficiency virus/acquired immunodeficiency syndrome (HIV/AIDS) is granted. Entitlement to an initial 60 percent rating, but not higher, for service-connected hepatitis C is granted subject to the laws and regulations controlling the award of monetary benefits. REMANDED Entitlement to service connection for asthma is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. During his August 2020 virtual Board hearing, the Veteran withdrew his appeal of the denial of the claim for entitlement to service connection for hepatitis B. 2. The Veteran’s HIV/AIDS is related to his active duty service. 3. The evidence is at least evenly balanced as to whether the Veteran’s hepatitis C symptomatology more nearly approximates daily fatigue, malaise and anorexia, with substantial weight loss and hepatomegaly, or; incapacitating episodes having a total duration of at least 6 weeks during the past 12-month period, but not occurring constantly. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal concerning the issue of entitlement to service connection for hepatitis B have been met. 38 U.S.C. § 7105 (b)(2), (d); 38 C.F.R. § 20.204. 2. The criteria for entitlement to service connection for HIV/AIDS have been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 3. With reasonable doubt resolved in favor of the Veteran, the criteria for an initial 60 percent rating, but not higher, for hepatitis C have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.112, 4.114, DC 7354. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1978 to July 1983. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), and an April 2017 rating decision which, respectively, granted service connection for hepatitis C, evaluating it as 20 percent disabling, and denied service connection for hepatitis B, HIV, and asthma; and denied entitlement to a TDIU. In February 2015, the Veteran filed his notice of disagreement with the rating assigned for his hepatitis C, and with denials of service connection, was issued a statement of the case in August 2016, and in October 2016, perfected his appeal to the Board. In April 2018, the Veteran filed his notice of disagreement with the denial of a TDIU, was issued a statement of the case in December 2019, and in January 2020 perfected his appeal to the Board. In August 2020, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. A copy of the transcript is of record. The Board notes that the issue of entitlement to service connection for a psychiatric disability to include as due to service connected hepatitis C was raised by the Veteran and his attorney during the August 2020 Board hearing. The issue, however, has not yet been adjudicated by the Agency of Original Jurisdiction (AOJ); therefore, the Board does not have jurisdiction over the claim. The issue is referred to the RO for appropriate action, to include informing the Veteran and his attorney that a claim for benefits must be submitted on the application form prescribed by the Secretary of VA and providing such forms. See 38 C.F.R. § 3.150 (a) (providing for furnishing of appropriate application form upon request for VA benefits); 38 C.F.R. § 20.904 (b) (continuing to provide for Board referral of unadjudicated claims in legacy cases). During his August 2020 Board hearing, the Veteran’s attorney indicated that the Veteran wished to withdraw the issue of entitlement to service connection for hepatitis B. “[W]ithdrawal of a claim is only effective where the withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant.” Delisio v. Shinseki, 25 Vet. App. 45, 57 (2011). A Board determination that a claimant withdrew his or her appeal is a finding of fact subject to the “clearly erroneous” standard of review set forth in 38 U.S.C. § 7261(a)(4)... and must include a “finding regarding whether [the appellant] understood the consequences of withdrawing his claims.” Acree v. O’Rourke, 891 F.3d 1009, 1015 (Fed. Cir. 2018). During the Board hearing, the Veteran’s attorney specifically stated that he was “not going to pursue” the hepatitis B claim for service connection. The Board finds that, given the context in which the statement was made and the other dispositions in this decision, including an increased rating for hepatitis C and grant of service connection for HIV/AIDS, the withdrawal was explicit, unambiguous, and done with a full understanding of the consequences of such action. The Board will therefore consider the issue of entitlement to service connection for hepatitis B withdrawn. 38 U.S.C. § 7105 (b)(2), (d); 38 C.F.R. § 20.204. Service connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran’s DD-214 indicates that his military occupational specialties were as an operating room technician, and a medical field service technician. The Veteran testified that when he was in service in Oakland, he began to suffer from fatigue, nausea, and other illnesses he had never had before or shown symptoms of. He also stated that he lived with nausea, vomiting, and diarrhea, and that he has diarrhea constantly. He stated that he was sexually assaulted while in the service in San Diego and was treated at Balboa Hospital. The Veteran stated that he was feeling symptoms of HIV in service which were similar to the symptoms of hepatitis C, but more severe, and that they have grown more severe over time. The Veteran testified that his position in the service put him in contact with blood and that there were no protocols to protect against transmission of diseases such as glove usage. He stated that he may have been infected through “needle sticks” in the operating room or through sexual contact in service. He reported symptoms such as contracting infections easily, taking a long time to heal from cuts, and gastric issues. The Veteran described his daily fatigue as a “malaise” where it almost feels like depression where he gets ready for the day, but then has to go lay down. He also reported breaking out into sweats to the point that he has to change the top sheet on his bed at least once a week. The Veteran reported drastic weight fluctuation depending on whether or not he is on steroids. He stated that he suffers from episodes where he feels too sick and tired to do anything at least 6 weeks a year. The Veteran stated that he worked for the University of California San Francisco for 9 years until he got so sick that he was told he needed to retire as he “looked like a corpse walking down the hall.” The Veteran stated that his hepatitis C, HIV and hepatitis B are due to the exposures in his personal and professional life during service. He stated that he is unemployable due to the number of sick days he would have to take, rendering him unable to follow through with the work he was employed to do. 1. HIV/AIDS February 1979 service treatment records reflect that the Veteran was treated for jaundice, nausea, and vomiting. The Veteran’s service treatment records reflect that in February 1983, the Veteran was treated after feeling “malaise” for one week, hepatitis, and asthma. Additional February 1983 service treatment records reflect that the Veteran was treated for 1 recent episode of Type A hepatitis and indicated that the Veteran was in question of having AIDS. In an April 1983 Report of Administration Board, a fellow staff member stated that both hepatitis and AIDS were common to Operating Room Technicians. March 2014 VA treatment records reflect that the Veteran reported that he started having asthma attacks 3 year earlier, but used to have asthma as a child which resolved as a teenager. The records also indicate that he is HIV positive. In a September 2020 letter, the Veteran’s private physician stated that he has been treating the Veteran for HIV and hepatitis C since 2012, and reported that after reviewing the Veteran’s service treatment records and post-service treatment records, he is unable to distinguish which disease is the primary cause of his symptoms which include chronic and frequent incapacitating fatigue, nausea, vomiting, extreme weight loss and gains, sweating, and diarrhea. The physician opined with reasonable medical certainty that the Veteran’s high risk unprotected sexual activity during service was the likely cause of his HIV. He added that the Veteran stopped working as a surgical assistant in the early 1990s due to his symptoms, but noted that he could not say whether the disabling symptoms causing unemployability are primarily attributable to HIV or hepatitis C as they are both serious illnesses. For the following reasons, the Board finds that entitlement to service connection for HIV/AIDS is warranted. The March 2014 VA treatment records indicating that the Veteran is HIV positive reflects that the Veteran has met the current disability requirement for service connection, and the Veteran has provided competent and credible evidence of possible exposure to infected blood working in an operating room which is consistent with the circumstances of the Veteran’s service as an operating room technician, a sexual assault, as well as experiencing HIV symptomatology during service. Thus, the Veteran’s statements satisfy the in-service incurrence and event requirements, and the dispositive issue is whether there is a nexus between the two. The Veteran’s private physician opined in the September 2020 letter that the Veteran’s HIV was incurred in service, attributing it to the Veteran’s sexual activity during service. The private physician provided a thorough rationale based on an accurate characterization of the evidence of record after a review of the Veteran’s treatment records and after having treated the Veteran for 8 years. Therefore, the private physician’s opinion is afforded significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). There are no negative nexus opinions of record regarding the etiology of the Veteran’s HIV/AIDS. As the preponderance of the evidence demonstrates that the Veteran’s HIV/AIDS was incurred in service, service connection for HIV/AIDS is warranted. Ratings 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; 38 C.F.R. § 4.1. 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; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). 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. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. 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 “staged” ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). Hepatitis C The Veteran’s hepatitis C is currently rated 20 percent disabling under DC 7354. Under DC 7354, a 10 percent rating for hepatitis C contemplates 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. The next higher rating, 20 percent, requires daily fatigue, malaise, and anorexia (without weight loss or hepatomegaly) requiring dietary restriction or continuous medication, or incapacitating episodes of at least two weeks but less than four weeks in the last 12 months. 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 4 weeks, but less than 6 weeks, during the past 12-month period. A 60 percent rating is warranted for daily fatigue, malaise and anorexia, with substantial 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 6 weeks during the past 12-month period, but not occurring constantly. Finally, a 100 percent rating is assigned for near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). The schedule indicates at Note (1): Evaluate sequelae, such as cirrhosis or malignancy of the liver, under an appropriate diagnostic code, but do not use the same signs and symptoms as the basis for evaluation under DC 7345 and under a diagnostic code for sequelae. 38 C.F.R. §§ 4.14, 4.115, DC 7354. The schedule further indicates at Note (2): 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. A September 2014 disability benefits questionnaire (DBQ) indicated that the Veteran had diagnoses of hepatitis A and hepatitis C, and reflected that the Veteran was diagnosed with Non-A, Non-B and Hepatitis A during service, and currently has a non-detectable viral load for Hepatitis-C. The examiner noted that the Veteran was exposed to blood and blood products daily as an Operating Room Technician and Field Medical Specialist. The DBQ indicated that the Veteran did not require continuous medication for control of his liver conditions, but he did have signs or symptoms attributable to chronic or infectious liver disease including daily fatigue. The examiner noted that the Veteran had accidental exposure to blood, and engaged in high risk sexual activity. The DBQ indicated that the Veteran had not had any incapacitating episodes due to liver conditions during the past 12 months, he did not have signs or symptoms attributable to cirrhosis of the liver, biliary cirrhosis or cirrhotic phase of sclerosing cholangitis, the Veteran was not a liver transplant candidate, and he had not had an injury to the liver. The examiner noted that the Veteran’s liver condition did not impact his ability to work. A February 2017 DBQ indicated that the Veteran’s hepatitis C did not require continuous medication, but the Veteran did have symptoms of daily fatigue. The DBQ reflected that the Veteran had not had any incapacitating episodes due to his hepatitis C in the past 12 months, no cirrhosis, was not a liver transplant candidate, had not undergone a liver transplant, and had no injury to the liver. The examiner noted that the Veteran’s liver, spleen, pancreas, kidneys, and adrenal glands were normal in size and attenuation, and that there was mild intra or extrahepatic biliary dilatation with evidence of prior cholecystectomy. The examiner stated that the Veteran’s liver disease did not impact his ability to work. The evidence of record is at least evenly balanced as to whether the Veteran’s hepatitis C symptomatology more nearly approximates that contemplated by a 60 percent rating under DC 7354. While the February 2017 DBQ indicated that the Veteran’s hepatitis C symptomatology did not require continuous medication and reflected normal liver size, the DBQ also reflected that the Veteran’s hepatitis C symptomatology included daily fatigue. Additionally, while the February 2017 examiner reported that the Veteran had not had any incapacitating episodes due to his hepatitis C in the past 12 months, the Veteran testified during his August 2020 Board hearing that he suffers from episodes where he feels too sick and tired to do anything at least 6 weeks a year. The Veteran also competently reported drastic weight fluctuation depending on whether or not he is on steroids. While, as will be discussed, the credibility of the Veteran has been called into question, there is no indication in the record that the Veteran lacks credibility as to the symptoms he has experienced as a result of his hepatitis C. The Veteran has consistently described his symptoms of hepatitis C as including fatigue, and made the statements regarding these symptoms when medical treatment was being rendered to ascertain the Veteran’s state of physical fitness. Thus, the Board finds that the Veteran’s descriptions of hepatitis C symptomatology to a medical professional in seeking treatment for a medical problem are credible and afforded significant probative weight. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that 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). However, a higher 100 percent rating under DC 7354 is not warranted. While the Veteran has complained of daily fatigue, the evidence does not suggest that his hepatitis C symptomatology more nearly approximates near constant debilitating symptoms. As previously noted, the Veteran has discussed suffering from vomiting, malaise, and constant diarrhea, but indicated that while the symptoms are severe to the point that he is too sick to do anything at least 6 weeks out 12 months, the evidence does not suggest that his illness renders him too sick to do anything the majority of the time. Therefore, the Veteran’s hepatitis C symptoms, while significant, do not more nearly approximate near-constant debilitating symptoms as contemplated by a 100 percent rating under DC 7354. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to an initial 60 percent rating, but not higher, for hepatitis C under DC 7354 is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. REASONS FOR REMAND Asthma November 1981 service treatment records reflect that the Veteran was treated for asthma and hay fever, and indicate that he was hospitalized for an asthma attack in May 1980. Undated service treatment records indicate the Veteran had asthma as a child which subsided until the age of 20 when his symptoms reappeared. The Veteran was noted to do well without medication until December 1979 when attacks became more frequent and required medication. A September 2014 DBQ reflected that the Veteran had a diagnosis of asthma from childhood which was in remission until entry into service where he experienced recurrent exacerbations which required daily medication. The examiner opined that the Veteran’s asthma was less likely than not (less than a 50 percent probability) incurred in or caused by service noting that the Veteran’s service treatment records reflect a history of asthma from childhood. The examiner stated that the Veteran’s asthma clearly and unmistakably existed prior to service, and was not aggravated beyond its natural progression by an in-service event, injury or illness, as the service treatment records show childhood asthma was exacerbated prior to service and there is no objective evidence to support aggravation. The Veteran stated that his asthma intensified when he was stationed in Hawaii and that he was denied going to a Navy marine ship due to how severe his asthma had become. He stated that the last year and a half of his first enlistment, his asthma continued to worsen to the point where it is today, and that he now requires medication and inhalers. He also stated that he suffers from shortness of breath, wheezing, and that he is unable to perform cardiovascular activities like running. In a June 2016 addendum medical opinion, the physician state that the presumption of soundness applied as asthma was not noted on the Veteran’s entrance examination, but opined that the Veteran’s asthma was less likely than not (less than a 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. The physician noted the April 1983 administrative discharge Board note which documented that the Veteran had lied about his history of asthma, and that the Veteran had experienced asthma as a child and again at the age of 20. Therefore, the physician concluded that the currently diagnosed asthma is not related to the incident of asthma noted in service. A Veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § § 3.304 (b). In other words, “[w]hen no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry.” Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). As the June 2016 addendum medical opinion accurately reflects, the Veteran’s December 1977 medical examination report upon entry into service does not indicate that the Veteran suffered from asthma or any respiratory illness upon entry. While there is evidence that the Veteran had childhood asthma and symptoms at the age of 20, there is no clear and unmistakable evidence within his service treatment records or the claims file which indicates the Veteran’s asthma was clearly and unmistakably not aggravated by service. The September 2014 DBQ reflects that the examiner stated that there is no objective evidence to support aggravation, but failed to consider the Veteran’s reports that his asthma worsened during service and now requires inhalers and medication, or the service treatment records which reflect the Veteran did well without medication until December 1979. Therefore, the presumption of soundness has not been rebutted, and the Veteran is presumed to have been sound upon entry into active duty service. The Board notes that the Veteran’s credibility has been called into question. The June 2016 physician opined that the Veteran’s currently diagnosed asthma was not related to the treatments for asthma in service, opining that the Veteran had lied about his history of asthma to support his conclusion. However, the Board finds the June 2016 physician’s rationale flawed as he failed to provide an adequate rationale to support his opinion as the Veteran’s failure to report pre-existing asthma does not necessarily preclude service connection particularly considering the Veteran’s documented asthma attacks in service and statements regarding worsening of the disability in service. See Nieves-Rodriguez, 22 Vet. App. at 304. The June 2016 opinion is therefore inadequate and a remand for a new opinion is necessary to determine whether the Veteran’s asthma is related to his asthma during service. See Wagner v. Principi, 370 F.3d 1089, 1094-1096 (Fed. Cir. 2004) (in cases where the presumption of soundness cannot be rebutted, claims for service connection based on aggravation are converted into claims for service connection based on service incurrence). TDIU A TDIU is provided where the combined schedular evaluation for service-connected disabilities is less than total, or 100 percent. 38 C.F.R. § 4.16 (a). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment, by reason of his or her service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under 38 C.F.R. § 4.16 (a), if there is only one such disability, it must be rated at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16 (a). In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term “unable to secure and follow a substantially gainful occupation” as having two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the following: the Veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. See Van Hoose, 4 Vet. App. at 363. “A high rating in itself is a recognition that the impairment makes it difficult to obtain or keep employment.” Id. The ultimate question, however, is “whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment.” Id. The Veteran’s VA 21-8940 Application for Increased Compensation form indicates that he completed 4 years of college, last worked full time June 1, 1998, and became too disabled to work due to HIV, Hep B, and Hep C. The Veteran reported suffering from fatigue, chronic diarrhea, sores, chronic pain, depression, wasting syndrome, neuropathy, nausea, vomiting, and asthma. Medical treatment records furnished by the Social Security Administration (SSA) reflected that the Veteran was unable to sit for 6 hours per an 8 hour working day with normal breaks, stand and walk intermittently for 2 hours per an 8 hour working day, or lift 10 lbs. occasionally as he requires time for meal preparation, physical exercise, and an intermittent nap. The Veteran explained that he would be unable to work for fear of infecting a patient as he suffers from open sores and nose bleeds, is in constant pain, and frequently contracts the flu. The Veteran testified that he suffers from episodes due to his hepatitis C where he feels too sick and tired to do anything at least 6 weeks a year. The Veteran stated that he worked for the University of California San Francisco for 9 years until he got so sick that he was told he needed to retire as he “looked like a corpse walking down the hall.” The Veteran stated that his hepatitis C, HIV and hepatitis B are due to the exposures in his personal and professional life during service. He stated that he is unemployable due to the number of sick days he would have to take, rendering him unable to follow through with the work he was employed to do. In the September 2020 letter, the private physician stated that the Veteran stopped working as a surgical assistant in the early 1990s due to his symptoms, but noted that he could not say whether the disabling symptoms causing unemployability are primarily attributable to HIV or hepatitis C as they are both serious illnesses. As a decision on the remanded issue of entitlement to service connection for asthma and the RO’s implementation of the Board’s previously discussed grant of service connection for HIV/AIDS could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. Therefore, a remand for adjudication of this issue by the Agency of Original Jurisdiction subsequent to implementation of the dispositions in this decision is necessary. The matters are REMANDED for the following actions: 1. Obtain an opinion from an appropriate physician to determine the etiology of the Veteran’s asthma. The physician should opine as to whether the Veteran’s asthma was at least as likely as not (at least a 50 percent probability) that the Veteran’s asthma is related to the asthma he suffered during service, to include the Veteran’s reports of intensified asthma in Hawaii. In this regard, the Veteran is presumed sound as to his respiratory system when he entered service and any evidence indicating asthma prior to service should not be considered. The physician is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. All opinions expressed must be accompanied by a complete rationale. 2. After implementing the grants of service connection for HIV, and the 60 percent rating for hepatitis C, take appropriate action to develop and adjudicate the issues of entitlement to service connection for asthma and the inextricably intertwined issue of the claim for a TDIU on a schedular basis under 38 C.F.R. § 4.16 (a) for any period for which the Veteran meets the schedular criteria and refer the issue of entitlement to a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16 (b) to the Director of Compensation Service for any period for which he does not meet the schedular standard. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Maddox, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.