Citation Nr: 21009711 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 15-28 515 DATE: February 23, 2021 REMANDED The issue of entitlement to service connection for chronic liver disease, to include hepatitis C, is remanded. The issue of 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 in the U.S. Army from September 1971 to September 1974. In June May 2019, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the file. In September 2019, the Board this portion of the appeal for further evidentiary development. In June 2020, the Board again remanded this portion of the appeal for further evidentiary development. After a thorough consideration of the evidence of the record, the Board finds that additional evidentiary development is still necessary prior to the adjudication of the Veteran’s claims on appeal. The Board sincerely regrets the delay caused by this additional remand but finds that the development requested herein is necessary prior to a final adjudication of these issues remaining on appeal. Service connection for chronic liver disease, to include hepatitis C The Veteran has continuously contended that he developed hepatitis C during his service. He has described several in service events that could have led to his exposure to hepatitis C, including military sexual trauma, and the handling of blood and urine samples while working as a drug education specialist. In accordance with the most recent Board remand, a medical opinion was obtained in September 2020. The VA clinician opined that the Veteran’s hepatitis C was less likely than not incurred in, or caused by, the in-service assault. The clinician explained that review of the medical literature indicated that, while transmission of hepatitis C via sexual contact is possible, the possibility of that occurring is low. The clinician continued that a large study indicated that overall incidence of HCV transmission by sex was estimated to be only 0.07 percent per year. The clinician concluded that, while it is in within the realm of medical possibility, the probability does not meet the standard of equipoise. The VA clinician also opined that it was less likely than not that the Veteran’s hepatitis C infection was due, or related, to his handling of urine specimen. The clinician cited a medical article which reported that non-parenteral routes of HCV infection through urine was unlikely. Importantly, however, no opinion was provided as to the likelihood of transmission through contact with blood. The current evidence of the record is not sufficient enough for the Board to make a clear and informed determination, either favorably or unfavorably, in this matter. It is crucial that all assertions and medical questions be addressed and resolved to the best extent possible. Therefore, the Board will remand this claim, hopefully for the ultimate time, to obtain an opinion that addresses the likelihood of the Veteran’s hepatitis C infection through blood contact during his active service. TDIU Initially, the issue of entitlement to a TDIU is inextricably intertwined with the issue of entitlement to service connection for hepatitis C. Additionally, as indicated in the June 2020 Board remand, the evidence of record warrants a referral for consideration of a TDIU rating on an extraschedular basis. As of now, the Veteran is only service connected for PTSD, rated at 30 percent disabling. In a March 2014 Psychology Note, the Veteran reported that he lost jobs due to anxiety and that he felt that he could no longer work due to his medical and mental health conditions. On the December 2019 VA examination for PTSD, the Veteran reported that he was not currently working and had not worked since 2013. One of the symptoms the Veteran experienced was difficulty in establishing and maintaining effective work and social relationships. The examiner also opined that individuals such as the Veteran reported marked difficulties in concentration, making decisions, and the preoccupation with anxiety are likely to impair their ability to think clearly. Where there is plausible evidence that a claimant seeking extraschedular TDIU is unable to secure or follow a substantially gainful occupation and there is no affirmative evidence to the contrary, the Board is required to remand the claim for referral to the Director, Compensation Service to consider entitlement on an extraschedular basis. Bowling v. Principi, 15 Vet. App. 1 (2001). Therefore, referral to the Director, Compensation Service for consideration of entitlement to extraschedular TDIU is warranted. 38 C.F.R. § § 4.16 (b). Accordingly, these matters are REMANDED for the following action: 1. Provide the Veteran an opportunity to identify any pertinent treatment records for his hepatitis C. The Agency of Original Jurisdiction (AOJ) should secure any necessary authorizations. If the records cannot be obtained, inform the Veteran of the records that could not be obtained, including what efforts were made to obtain them. The Veteran should also be notified that he may submit any such records. All efforts should be recorded in the claims folder. 2. Also, obtain all updated VA treatment records. If any requested outstanding records cannot be obtained, the Veteran should be notified of such. 3. Then, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any chronic liver disease, including hepatitis C, he may have. The examiner should have the opportunity to review the Veteran’s claims folder in conjunction with this examination. After review of the record, as well as an interview with, and examination of, the Veteran, the examiner should: (a) diagnose any chronic liver disease, including hepatitis C, that was shown on current examination or at any time during the appeal period, and (b) opine as to whether it is at least as likely as not (50 percent or greater probability) that any such diagnosed chronic liver disease, including hepatitis C, was incurred in, or caused by, his service, specifically his exposure to blood while handling it as a drug education specialist? In expressing this opinion, the examiner must consider and address appropriate medical treatise highlighting that hepatitis C is primarily transmitted by contact with blood and blood products, with the highest prevalence correlated to repeated and direct percutaneous (through the skin) exposure. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If the Veteran’s reports are discounted, the examiner should provide a reason for doing so. A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. The examiner should discuss the particulars of this Veteran's medical history, pertinent lay evidence, and the relevant medical literature or studies as applicable to this case, which may reasonably explain the medical analysis in the study of this case. 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. 4. Provide the Veteran with the opportunity to complete a VA Form 21-8940 (Veterans Application for Increased Compensation based on Unemployability). 5. If the Veteran still does not meet the schedular criteria for TDIU after the development of the claim for issue of entitlement to service connection for a chronic liver disease, to include hepatitis C, forward this case to the Director, Compensation Service for consideration of the assignment of a TDIU rating due to his service-connected disability(ies) (to include his already service-connected PTSD and the chronic liver disease, to include hepatitis C (if service connected) on an extraschedular basis pursuant to the provisions of 38 C.F.R. § 4.16(b). In connection with the referral, the AOJ should include a full statement outlining the Veteran's service-connected disabilities, employment history, educational attainment, and all other factors having a bearing on the issue during the applicable timeframe. 6. Then, review the record, conduct any additional development deemed necessary, and readjudicate the claims remaining on appeal. If any benefit sought remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case (SSOC). The Veteran and his representative should be afforded the appropriate time period to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Middleton, 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.