Citation Nr: 21021504 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 14-25 921 DATE: April 13, 2021 ISSUE Entitlement to an initial compensable disability rating for the period prior to October 23, 2020, and in excess of 30 percent thereafter, for service-connected digestive disability (variously claimed as residuals of hepatitis C, cirrhosis of the liver and gastroesophageal reflux disease). REMANDED Entitlement to an initial compensable disability rating for the period prior to October 23, 2020, and in excess of 30 percent thereafter, for service-connected digestive disability (variously claimed as residuals of hepatitis C, cirrhosis of the liver and gastroesophageal reflux disease) is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Navy from August 1969 to November 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal. By way of background, the Veteran was initially granted entitlement to service connection for hepatitis C and cirrhosis of the liver at a noncompensable rating, effective July 23, 2010, the date of the Veteran’s original claim. The Veteran filed a timely Notice of Disagreement (NOD) in February 2013, appealing the disability rating, and he was issued a statement of the case (SOC) in May 2014. The Veteran filed a VA Form 9 in June 2014 and indicated that he wanted to appear at a Board hearing. The Veteran’s claim was certified to the Board in November 2014, and the Veteran later withdrew the hearing request in March 2016. 38 C.F.R. § 20.704 (e). The Veteran’s claims were then remanded by the Board in October 2016 for additional development and adjudication. In November 2018, the Board denied the Veteran’s claim for an initial compensable rating for hepatitis C and cirrhosis of the liver. The Veteran appealed the Board’s November 2018 decision to the United States Court of Appeals for Veterans Claims (Court). In August 2019, the Court granted a Joint Motion for Remand (JMR) filed by the parties to the appeal thereby vacating the Board’s November 2018 decision and remanding the matter for readjudication. Following the JMR, in May 2020, the Board remanded this matter for further development and adjudication. Upon review of the Veteran’s claim file, the Board finds that there has not been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Following the May 2020 Board remand, the RO increased the Veteran’s disability rating for his service-connected residuals of hepatitis C and cirrhosis of the liver to 30 percent, effective October 23, 2020. That service-connected disability was also now rated concurrently with service-connected gastroesophageal reflux disease. The Board notes that the grant of increased ratings during the course of an appeal does not affect the pendency of that appeal. AB v. Brown, 6 Vet. App. 35 (1993). As the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, the claim is still in controversy and on appeal. Id. In addition, the Board notes that when a Veteran makes a claim, they are seeking compensation for symptoms regardless of how those symptoms are diagnosed or labeled. As such the Board has re-characterized the previous service-connected disability of hepatitis C and cirrhosis of the liver, as a service-connected digestive disability (variously claimed as residuals of hepatitis C, cirrhosis of the liver and gastroesophageal reflux disease). See, Clemons v. Shinseki, 23 Vet. App. 1 (2009). As substantial compliance has not been found, the Board finds that additional evidentiary development is required before the claim on appeal is adjudicated. Entitlement to an initial compensable disability rating for the period prior to October 23, 2020, and in excess of 30 percent thereafter, for service-connected digestive disability (variously claimed as residuals of hepatitis C, cirrhosis of the liver and gastroesophageal reflux disease) is remanded. Further development is necessary to comply with the terms of the May 2020 Board remand. In Stegall, the United States Court of Appeals for Veterans Claims (Court) held that a remand by the Board confers upon the Veteran or other claimant, as a matter of law, the right to compliance with the Board’s remand order. Moreover, the Court further held that the Board itself errs when it fails to ensure compliance with the terms of its remand. Stegall, Id. As noted above, the Veteran’s claim was previously before the Board in October 2016. In the body of the remand the Board referred to a March 2015 disability benefits questionnaire (DBQ) from the Veteran’s VA treating provider, K. C., N.P. The Board noted that the DBQ suggested that the Veteran’s condition may have worsened since he was last afforded a VA examination, and that VA treatment records showed that he started treatment for hepatitis in October 2013 and that he stopped treatment due to side effects. And as noted in the May 2020 Board remand, the Veteran asserted in an October 2019 statement in support of claim that he was treated by B. N., M.D., and K. C., N.P. at the Hines VA Medical Center (MC) starting in 2008, and requested that VA obtain those records. The claims file currently contains records from that facility from April 2009 through February 2020. In November 2018, the RO requested records from Hines VAMC from January 1996 to April 2009. The VA Evidence Intake Center responded later that same month, stating that it had no records for the time frame of January 1996 to April 2006. As the Hines VAMC clearly erred in its characterization of the date range of the records requested, the Board finds that the RO must make an additional request for any records of treatment from Hines VAMC from January 1996 to April 2009. See, e.g., Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession). To be sure, the May 2020 Board remand also directed that the Veteran be given a VA examination to assess the current severity of his service-connected digestive disability (then labeled as hepatitis C and cirrhosis of the liver). That VA examination took place in December 2020. Having said that, as the Veteran has indicated that “decades” of past records include extensive treatment of his digestive disability, those records of his symptoms and associated treatments must be associated with the claims file before the Board may determine the adequacy of the December 2020 VA examination. This is especially important, because the VA examiner was specifically directed to conduct a review of the claims file, with emphasis on the treatment history of the Veteran’s digestive disability. See May 2020 Board remand; see further November 2018 Court JMR. Importantly, a Board remand confers upon the Veteran, as a matter of law, the right to compliance with the remand order. Stegall, 11 Vet. App. at 270-71. Thus, in accordance with Stegall, violation for full compliance with the Board’s prior remand is warranted. This matter is REMANDED for the following action: 1. Ask the Veteran to identify, and provide appropriate releases for, any care providers, who may possess new or additional evidence pertinent to the issue on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. The evidence procured, if any, should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran and his Attorney should be notified. 2. Request from all appropriate sources the records of treatment from the Hines VAMC dated from January 1996 to April 2009, following the procedures set forth in 38 C.F.R. § 3.159. Efforts to obtain the evidence should be fully documented and should be discontinued only if it is concluded that the evidence sought does not exist or that further efforts to obtain the evidence would be futile. 38 C.F.R. § 3.159 (c)(2). Again, the evidence procured, if any, should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran and his Attorney should be notified. (Continued on next page.) 3. After completing the above, and any other development as may be indicated by any response received due to the actions taken in the preceding paragraphs, the Veteran’s claim should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and his Attorney should be issued a supplemental statement of the case. An appropriate period should be allowed for response. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Mulrain, 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.