Citation Nr: 21068625 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 15-41 390 DATE: November 10, 2021 REMANDED Entitlement to a rating in excess of 60 percent for infectious hepatitis and hepatitis C is remanded. Entitlement to a total disability based on individual unemployability prior to July 6, 2017 is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1972 to February 1975. Historically, in October 2017, the Board determined that the Veteran should have been issued a supplemental statement of the case (SSOC) contemporaneously or following the May 1994 rating decision that granted an increased 60 percent disability rating for hepatitis and referred that matter for the issuance of a SSOC. It was also determined in the October 2017 Board decision that the Veteran's claim for an increased rating for hepatitis had been pending since the September 1993 rating decision. Subsequently, the claims for an increased rating for infectious hepatitis/hepatitis C and entitlement to a TDIU prior to July 6, 2017, were denied by the Board in an August 2018 decision. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In May 2019, the Court granted a Joint Motion for Partial Remand (JMPR). In compliance with the JMPR, the Board issued a November 2019 remand for additional development. 1. Entitlement to a rating in excess of 60 percent for infectious hepatitis and hepatitis C is remanded. In the November 2019 remand, the Board instructed the Agency of Original Jurisdiction (AOJ) to obtain a VA examination to address the severity of the Veteran's hepatitis. The Board specifically requested that the VA examiner should indicate whether the Veteran's hepatitis was productive of near-constant debilitating symptoms and/or consider whether the Veteran's hepatitis was productive of marked liver damage manifested by liver function test and marked gastrointestinal symptoms, or with episodes of several weeks' duration aggregating three or more a year and accompanied by disabling symptoms requiring rest therapy. The Board requested further that any response to these questions should include a discussion of the significance of the prescription of interferon and the finding of portal fibrosis. In March 2020, in an attempt to comply with the November 2019 remand directives, the AOJ procured a VA examination and medical opinion. The examiner diagnosed the Veteran with infectious hepatitis and hepatitis C and found symptoms consisting of daily fatigue, malaise, anorexia, and muscle aches. With respect to the questions posed by the Board (as indicated above), the examiner provided negative responses and indicated that there were no records of end stage liver disease or cirrhosis and no reports of fatigue. The examiner, however, did not otherwise consider or discuss the significance, if any, of the Veteran's prescription of interferon or the finding of portal fibrosis. Accordingly, the Board finds that there has not been substantial compliance with the Board's November 2019 remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). As such, remand is warranted for a new VA examination consistent with the directives herein. The Board also notes that following the March 2020 VA examination, the AOJ issued a March 2020 Supplemental Statement of the Case (SSOC) and returned the case to the Board. Significantly, however, the record reflects that the SSOC was mailed to an incorrect address of record and it is not clear whether the Veteran received the SSOC. Accordingly, on remand, the AOJ must verify the Veteran's correct address of record and resend a copy of the March 2020 SSOC to the Veteran. 2. Entitlement to TDIU prior to July 6, 2017 is remanded. Consideration of entitlement to a TDIU is dependent upon the impact of the Veteran's service-connected disabilities on his ability to obtain or retain substantially gainful employment. Accordingly, the matter of a TDIU is inextricably intertwined with the Veteran's claim remanded herein. Harris v. Derwinski, 1 Vet. App. 180 (1991). Remand of the inextricably intertwined TDIU claim is, thus, also required. The matters are REMANDED for the following actions: 1. The AOJ must verify the Veteran's current mailing address of record and resend a copy of the March 2020 SSOC to him. 2. Obtain a VA opinion from an appropriate examiner to determine the nature and severity of the Veteran's service-connected hepatitis from May 1993 onward. The examiner must review pertinent documents in the Veteran's claims file in conjunction with the examination. If it is determined that the requested opinions may not be provided without a physical examination of the Veteran, such should be arranged. The examiner must address the following: a) At any time from May 1993 onward, has the Veteran's hepatitis been productive of marked liver damage manifested by liver function test and marked gastrointestinal symptoms; or with episodes of several weeks' duration aggregating three or more a year and accompanied by disabling symptoms requiring rest therapy? b) At any time from May 1993 onward, has the Veteran's hepatitis been productive of near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain)? In rendering the above opinions, the examiner must consider and discuss the significance of the evidence showing marked portal fibrosis and prescription for interferon and whether such evidence is consistent with marked liver damage and/or debilitating symptoms. 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. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Metzner, Paul 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.