Citation Nr: 21071831 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 15-42 300 DATE: December 1, 2021 REMANDED Entitlement to service connection for hepatitis C is remanded. Entitlement to service connection for a joint disease disability, to include as secondary to hepatitis C, is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is remanded. Entitlement to nonservice-connected (NSC) pension benefits prior to March 19, 2021, is remanded. Entitlement to special monthly pension (SMP) is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1974 to May 1977. These matters come to the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision which, inter alia, denied entitlement to service connection for hepatitis C and a joint disease disability, and denied entitlement to TDIU, NSC pension, and SMP. In December 2018, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. In April 2019 and July 2021, the Board remanded the claims on appeal to the Agency of Original Jurisdiction (AOJ) for further development. Where the record reflects that the Veteran turned 65 in March 2021, he meets the presumed permanent and total disability requirement for entitlement to pension benefits as of the date of his 65th birthday. Thus, the issue of entitlement to pension benefits based on countable income and net worth will be the subject of a separate Board decision. Service connection for hepatitis C The Board remanded the service connection claim for hepatitis C to obtain an addendum opinion addressing the nature and etiology of the Veteran's diagnosed hepatitis C. An addendum opinion was obtained from a VA-contracted examiner in November 2020, however, the examiner concluded that there was insufficient evidence to warrant or confirm a diagnosis of acute or chronic hepatitis C condition or residuals at that time. Notably, the examiner did not address evidence of the Veteran's hepatitis C diagnosis at the time he filed his claim and continuing for at least several months during the appeal period. See Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013) and McLain v. Nicholson, 21 Vet. App. 319, 321 (2007) (collectively holding that the current disability requirement for service connection may be met by evidence of the claimed disability shortly prior to the filing or at the time of filing of the claim, or during the pendency of the claim). Nor did the examiner address the Veteran's claimed residual joint pains, which pains are documented in the medical evidence, including his VA clinical records, during the appeal period. The examiner went on to conclude that hepatitis C was not caused by use of air gun inoculations used in the 1970s. The examiner based this conclusion on a conclusory absence of proof of any case of hepatitis C being caused by air gun inoculation. In reaching this determination, however, the examiner did not rely on any supporting evidence other than providing a bare conclusion. Further, the examiner did not address VA's concession that infection via immunizations with an air-gun injector is biologically possible, as the Board directed in the July 2021 remand. Nor did the examiner address any other hepatitis C risk factors for the Veteran during his active service, as the Board directed in the remand. Based on the deficiencies in the November 2020 opinion, remand of this matter is required to obtain a new addendum opinion addressing the nature and etiology of the Veteran's diagnosed hepatitis C. Service connection for a joint disease disability At this juncture, the Board notes that while the medical evidence of record, including a February 2020 VA hepatology report, indicated that interferon used to treat the Veteran's hepatitis C can leave a person with lasting side effects, such as joint pain, the record does not contain an adequate opinion addressing whether the Veteran's claimed joint pains were at least as likely as not caused or aggravated by his claimed hepatitis C. Thus, while this matter is intertwined with the underlying service connection claim for hepatitis C, remand is also warranted to obtain a new opinion as to the etiology of the claimed joint disease. Entitlement to a TDIU The Veteran's assertions pertaining to his TDIU claim are based on his claims for hepatitis C and joint pains. Thus, the matter of entitlement to a TDIU is inextricably intertwined with the service connection claims remanded herein. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue). Consideration of entitlement to a TDIU must be deferred until the intertwined issues are resolved or prepared for appellate consideration. See Harris, 1 Vet. App. at 183 (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together). Entitlement to NSC pension benefits Entitlement to SMP Similarly, the remaining NSC pension and SMP matters are intertwined with the remanded service connection claims, and with the TDIU claim, as development of those claims will yield evidence pertinent to the pension matters. See Parker, Harris, supra. These matters are hereby REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Thereafter, arrange for the claims file to be reviewed by an appropriate VA examiner to obtain new opinions as to the etiology of the claimed hepatitis C and joint disease disability. The claims file and a copy of this REMAND should be made available to the examiner for review. If the examiner determines that a new examination is warranted in order to provide a requested etiology opinion, arrange for the Veteran to be afforded such examination. If the Veteran is examined, any and all indicated studies and tests deemed necessary by the examiner should be accomplished. After review of the record, and completion of any examination (including any necessary tests and studies), the examiner should: (a.) provide a new opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability), that the Veteran's hepatitis C (diagnosed during the appeal period) had its onset during his active service, or is otherwise medically-related to his service, to include as a result of his air-gun immunizations and/or exposure to infectious hepatitis, as specifically noted on an October 1975 laboratory card. The examiner's opinion must include a discussion of the Veteran's risk factors for hepatitis C, as well as VA's concession that infection via immunizations with an air-gun injector is biologically possible. (b.) Then, for each current joint disease identified in the record, provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the disease/disability was caused, or aggravated (made worse) beyond its natural progression by the Veteran's claimed hepatitis C, to include as a result of medications (i.e., interferon) used to treat the hepatitis C. In addressing the above, the examiner must consider and discuss all pertinent medical evidence, to include evidence of the Veteran's exposure to infectious hepatitis during service and his hepatitis C risk factors, his diagnosis and treatment of hepatitis C during the appeal period, evidence of the claimed joint pains involving the thoracolumbar spine and bilateral shoulders, elbows, hips, knees, ankles, and feet, as noted in a January 2020 VA-contracted examination report, and notations in the VA clinical records indicating that interferon can leave a person with lasting side effects, such as joint pain. The examiner must also consider and address all lay evidence of record, to include the Veteran's reports as to the nature, onset, and continuity of symptomatology of his claimed hepatitis and joint disease. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. The examiner must provide adequate reasons for all opinions. The Board in particular notes that a discussion of the facts and medical principles involved with respect to each claimed disability would be of considerable assistance to the Board. Nathaniel Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Wilson, Counsel The Board's decision in this case is binding only with respect to the instant matters decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.