Citation Nr: 21064055 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 10-45 436 DATE: October 18, 2021 REMANDED Entitlement to a rating in excess of 10 percent for hepatitis C is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1970 to March 1973. This matter comes before the Board of Veterans Appeals (Board) on appeal from a rating decision issued in April 2010 by a Department of Veterans Affairs (VA) Regional Office. In May 2013, the Board denied an increased rating for hepatitis C and remanded the claim for a TDIU for additional development. The Veteran subsequently appealed the denial of such increased rating to the United States Court of Appeals for Veterans Claims (Court). In an October 2014 Memorandum Decision, the Court vacated the Board's May 2013 decision and remanded the claim for an increased rating for hepatitis C for further consideration. In June 2015, the Board remanded both issues for additional development and, in April 2016, denied both claims. The Veteran again appealed such denial to the Court and, in a June 2017 Memorandum Decision, the Court vacated the Board's April 2016 decision and remanded both claims for further consideration. In February 2018, April 2020, and May 2021, the Board remanded the case for additional development and it now returns for further appellate review. 1. Entitlement to a rating in excess of 10 percent for hepatitis C. For the entire appeal period stemming from the Veteran's January 26, 2010, claim for an increased rating for hepatitis C, such disability has been rated as 10 percent disabling pursuant to Diagnostic Code 7354, which 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. 38 C.F.R. § 4.114. Based on February 2010 and April 2010 VA examinations, the Board denied the Veteran's claim for an increased rating for hepatitis C in a May 2013 decision. However, in the October 2014 Memorandum Decision, the Court found that, while the February 2010 VA examination was adequate, the April 2010 VA examination was inadequate as the examiner stated that the Veteran reported no significant change in his condition since the February 2010 VA examination, but noted that his weight was stable in the 165-170 pound range while he weighed 185 pounds at the former examination. Thus, the Court found that, as the April 2010 VA examination did not appear to be based on consideration of the Veteran's prior medical history and examinations, a remand was necessary in order to afford him a new VA examination that adequately considered the fluctuating weight-related aspect of the Veteran's hepatitis C. Thereafter, in June 2015, the Board remanded the case in order to afford the Veteran a contemporaneous VA examination so as to determine the current nature and severity of his hepatitis C. In this regard, the examiner was requested to comment upon the Veteran's apparent weight loss between the February 2010 and April 2010 VA examinations, to include providing an opinion as to whether such weight loss resulted from his hepatitis C. Based on an August 2015 VA examination, the Board again denied the Veteran's claim for an increased rating for his hepatitis C in an April 2016 decision. In this regard, the Board noted that the August 2015 VA examiner observed that a review of the record showed a 3 pound weight loss, which was not significant, between February 2010 and April 2010 and, given his normal liver function tests during such period, made it unlikely that his hepatitis C was connected to his mild reported weight loss. The Board further noted that the report of 185 pounds at the February 2010 VA examination was an outlier and conflicted with the remainder of the contemporaneous evidence of record, to include VA treatment records showing weights ranging between 154 and 168 pounds in 2009 and 2010. However, in the June 2017 Memorandum Decision, the Court found that the Board erred in failing to ensure substantial compliance with the Court's October 2014 directives. Specifically, the Court found that the August 2015 VA examiner did not address the Veteran's apparent weight loss between February 2010 and April 2010. In this regard, it was observed that the August 2015 VA examiner did not mention the February 2010 VA examiner's finding that the Veteran weighed 185 pounds at the time of the examination and instead concluded without explanation that his weight fluctuated only by 3 pounds. Thereafter, in February 2018 and April 2020, the Board remanded the case in order to afford the Veteran a contemporaneous VA examination so as to determine the current nature and severity of his hepatitis C. In this regard, the examiner was requested to comment upon the Veteran's apparent weight loss between the February 2010 and April 2010 VA examinations (185 pounds versus 165-170 pounds), to include providing an opinion as to whether such weight loss resulted from his hepatitis C. In May 2021, the Board found that, as an August 2020 VA examiner did not find weight loss or provide an opinion regarding the Veteran's fluctuating weight between February 2010 and August 2010, another remand was necessary in order to obtain such opinion. In this regard, the Board specifically requested that an examiner address whether it was at least as likely as not that the Veteran's 15 to 20 pound weight loss in the 3 month period between the February 2010 and April 2010 VA examinations was a result of anorexia and, if so, whether such was due to his hepatitis C. Thereafter, at a June 2021 VA eating disorders examination, an examiner found that the Veteran did not have a diagnosis of an eating disorder, to include anorexia. In this regard, he stated that it was not possible to make an accurate and valid diagnosis of a condition that only existed for a short period of time 10 or more years ago, and for which there was no current medical evidence to support the claim. He also opined that it is "at least not likely" that the Veteran's 15 to 20 pound weight loss in the three-month period between the February and April 2010 examinations (185 pounds to 165-70 pounds) was a result of anorexia, and "whatever the condition was in 2010," which was associated with his hepatitis C, is so far in the distant past and the condition only lasted for a short period of time such that it is immaterial to the Veteran's current health status to still be dealing with anorexia. The examiner noted that the Veteran's hepatitis C was cured some years ago. Additionally, while the Veteran underwent a VA hepatitis, cirrhosis, and other liver conditions in August 2021, such examiner did not address the Veteran's reported weight loss in 2010. However, as neither the June 2021 nor August 2021 VA examiner fully addressed the Board's inquiries, another remand is necessary in order to ensure substantial compliance with the prior remand orders by obtaining an addendum opinion. In this regard, the June 2021 VA examiner declined to state whether the Veteran had anorexia in 2010, and found that, while it was "at least not likely" that the Veteran's weight loss at such time was a result of anorexia, "whatever the condition was in 2010" was associated with his hepatitis C. However, he did not state whether such condition caused his apparent weight loss. Furthermore, as noted in the April 2016 Board decision, the Veteran's VA treatment records contemporaneous to the February 2010 VA examination where he was noted to weigh 185 pounds, shows weights ranging between 154 and 168 pounds in 2009 and 2010, to include 155 pounds in August 2009 and 168 pounds three days after the February 2010 VA examination, which calls into question the validity of the weight recorded at such examination. Thus, in addressing the Board's inquiries on remand, the examiner will also be requested to reconcile such conflicting evidence. 2. Entitlement to a TDIU. The Veteran contends that he is unable to secure and follow a substantially gainful occupation as a result of his service-connected disabilities, to include his hepatitis C. Therefore, as the outcome of the remanded claim for an increased rating for hepatitis C may affect the Veteran's TDIU claim, the latter claim is inextricably intertwined with the former claim. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Therefore, adjudication of the TDIU claim must be deferred until the Veteran's pending increased rating claim has been resolved. Accordingly, the matters are REMANDED for the following action: Forward the record, to include a copy of this remand, to an appropriate VA examiner, in order to obtain an addendum opinion addressing the nature of the Veteran's hepatitis C in 2010, to include the etiology of his reported weight loss during such time period. Following a review of the record, the examiner should address the below inquiries: (A) Did the Veteran lose weight between the February 2010 and April 2010 VA examinations? In offering such opinion, please consider the following evidence: An August 2009 VA treatment record shows a weight of 155 pounds VA treatment records dated in 2009 and 2010 show weights ranging from 154 to 165 pounds The February 2010 VA examination shows a weight of 185 pounds A February 2010 VA treatment record dated three days after the aforementioned VA examination shows a weight of 168 pounds The April 2010 VA examination shows that the Veteran's weight was stable in the 165-170 pound range The August 2015 VA examiner's finding that the record showed a 3 pound weight loss, which was not significant, between February 2010 and April 2010 and, given the Veteran's normal liver function tests during such period, made it unlikely that his hepatitis C was connected to his mild reported weight loss. If the examiner finds that the weight of 185 pounds recorded at the February 2010 VA examination was inaccurate, please provide a basis for such determination. (B) If the Veteran lost weight between the February 2010 and April 2010 VA examinations, please state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such weight loss resulted from his hepatitis C, to include as due to anorexia or any other hepatitis C-related symptomatology. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dawn A. Leung, 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.