Citation Nr: 21007089 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 11-23 431 DATE: February 8, 2021 REMANDED Entitlement to a rating in excess of 20 percent prior to February 17, 2007 for hepatitis C, is remanded. Entitlement to special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(s) prior to February 17, 2007, is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1968 to July 1970. This case comes before the Board of Veterans’ Appeals (Board) on appeal of a March 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The issues on appeal were previously denied by the Board in April 2019. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2020 Order, pursuant to a January 2020 Joint Motion for Partial Remand (JMPR), the Court vacated the Board’s April 2019 decision and remanded the claims for action consistent with the terms of the parties’ JMPR. The Board notes that the April 2019 Board decision also denied entitlement to a rating in excess of 60 percent for hepatitis C after February 17, 2007. However, the February 2020 JMPR expressly stated that the Veteran was not appealing that decision. Accordingly, that claim is not before the Board. The Board remanded this case in September 2020 to comply with the JPMR. The subsequent VA opinion was obtained in October 2020. The RO issued a Supplemental Statement of the Case (SSOC) in November 2020, and the case is now before the Board. 1. Entitlement to a rating in excess of 20 percent prior to February 17, 2007, for hepatitis C The Veteran seeks a higher rating for his service-connected hepatitis C prior to February 17, 2007. Specifically, he contends that his hepatitis C did not undergo an increase in severity in February 2007 but rather was of the same severity throughout the entire appeal period, which began in August 2000. The record contains statements by the Veteran and multiple “buddy statements.” These statements address the severity of the symptoms of the Veteran’s hepatitis C during the period on appeal. The October 2020 VA examiner's opinion did not address any lay statements from the record. This failure to address these lay statements renders the opinion inadequate. Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that a VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence"). Thus, a new VA opinion is warranted. Additionally, it is unclear if the examiner reviewed any medical evidence prior to the year 2000. The record contains medical records and Social Security Administration records that are relevant to understand the severity of the Veteran’s hepatitis C prior to February 2007, including prior to the to the Veteran filing his claim in 2000. Accordingly, the Board finds that these records must be reviewed in conjunction with the new VA examination. 2. Entitlement to SMC pursuant to 38 U.S.C. § 1114(s) prior to February 17, 2007 The Veteran seeks entitled to SMC pursuant to 38 U.S.C. § 1114(s) prior to February 17, 2007. The January 2020 JMPR remanded the claim as inextricably intertwined with the Veteran’s claim for an increased rating for his hepatitis C. As a decision on the Veteran’s increased rating claim would have a significant impact on his claim for SMC, remand is also required of the claim of entitlement for SMC. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: Forward the entire claims file, including the aforementioned Joint Motion, all Board decisions, and prior VA examinations, to a new qualified medical professional for a retrospective medical opinion regarding the severity of the Veteran’s service-connected hepatitis C for the period prior to February 17, 2007. The need for a physical examination is left to the discretion of the VA examiner. Based upon a detailed review of the record and the Veteran’s reported history of symptomatology, the examiner should address the following for the period from August 30, 2000 to February 17, 2007: a.) Whether the Veteran’s hepatitis C manifested in daily fatigue, malaise, and anorexia with weight loss and hepatomegaly, and, if so, whether the weight loss was minor or substantial. b.) Whether the Veteran experienced incapacitating episodes, and if so, explain the frequency and duration of the incapacitating episodes. “Incapacitating episodes” are defined are defined as a period of acute signs and symptoms severe enough to require bedrest and treatment by a physician. If the examiner finds that the Veteran experienced incapacitating episodes, the examiner should opine as to when they began. c.) Whether the Veteran experienced near-constant debilitating symptoms. If the examiner finds that there were changes in severity of the Veteran’s hepatitis C for the period prior to February 17, 2007, he/she should identify the approximate date of the change(s) and provide an assessment of the severity. A complete rationale must be provided for all opinions expressed. The rationale must consider and discuss the pertinent evidence of record, to include all of the Veteran’s lay statements and other buddy statements, in the claims file. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Hetman 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.