Citation Nr: 21031688 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 10-45 436 DATE: May 24, 2021 REMANDED Entitlement to rating higher than 10 percent for hepatitis C is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1970 to March 1973. The claims were appealed from an April 2010 rating decision. The claim for an increased rating for hepatitis C was initially denied by the Board of Veterans' Appeals (Board) in May 2013. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). The Court vacated the Board's May 2013 decision and remanded the claim in an October 2014 Memorandum Decision. The claim was returned to the Board and remanded for another examination in June 2015. In April 2016 the Board denied both the increased rating claim and TDIU. The Veteran again appealed the denial to the Court, which in a June 2017 Memorandum Decision vacated the Board's April 2016 decision to the extent that it denied these two claims and remanded the claims. The Memorandum Decision found that the Board failed to ensure substantial compliance with its October 2014 remand order regarding hepatitis C; namely, "for an examiner to address the appellant's apparent weight loss between February 2010 and August 2010." TDIU was remanded as part and parcel of the increased rating claim; the Court did not identify any errors in the Board's TDIU analysis. After the claims were returned to the Board , they were remanded in February 2018 and April 2020 in attempts to comply with the Court's remand order. The issue of entitlement to service connection for post-traumatic stress disorder was also remanded by the Board but this benefit was granted in full in a February 2021 rating decision. Therefore, it is no longer before the Board. 1. Entitlement to rating higher than 10 percent for hepatitis C is remanded. Review of the record shows that during a February 2010 VA examination, the Veteran's weight was 185 pounds. Subsequently, he underwent a VA examination in April 2010, where the examiner wrote that the Veteran's "[c]urrent weight is stable in the range of 165-170." The next higher rating of 20 percent for hepatitis C under Diagnostic Code 7354 requires Daily fatigue, malaise, and anorexia (without weight loss or hepatomegaly), requiring dietary restriction or continuous medication, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least two weeks, but less than four weeks, during the past 12-month period. 38 C.F.R. § 4.114, Diagnostic Code 7354. The May 2013 Board decision relied on an April 2010 VA examination report that did not accurately reflect the fact that the Veteran appears to have lost 15-20 pounds in the 3-month period between February 2010 and April 2010. This is significant because the May 2013 Board decision found that the Veteran suffered from fatigue, abdominal pain, and muscle aches, but "[a]t no point does the record show that he had anorexia." An even higher rating of 40 percent may be warranted when anorexia does produce minor weight loss and hepatomegaly. The Court vacated the May 2013 and April 2016 decisions because the record lacked an adequate medical opinion that addressed the Veteran's weight loss between February and April 2010. Specifically, in October 2014, the Court vacated the Board's denial because it concluded that a medical examination that adequately considers the Veteran's 15-20 pound weight loss is necessary before the claim can be adjudicated. Essentially, because the only element preventing the Board from awarding a higher rating form the period from February 2010 to April 2010 was anorexia, the cause of this weight loss is important. Accordingly, the Board remanded the claim and obtained an examination in August 2015 prior to denying the claim again in April 2016. The Court found, however, that this examination did not adequately address the Veteran's weight loss between February and April 2010, because it inaccurately stated that the weight fluctuated by only 3 pounds. For this reason, in June 2017, the Court found that the Board did not comply with its October 2014 remand order to the extent it failed to obtain a medical opinion that addressed the Veteran's weight loss between February and April 2010. See Court Decision at 57. As previously noted, the claims were returned to the Board and remanded twice since the Court's decision in June 2017. Most recently, the Board remanded the claim in April 2020. Pursuant to the Board's remand directives, the Veteran underwent VA examination in August 2020. The only symptom of hepatitis C noted during the exam is skin irritation that worsens with exposure to the sun. The examiner did not find weight loss. Nor did the examiner provide an opinion regarding the Veteran's fluctuating weight between February and August 2010. Therefore, the record still does not have a medical opinion that addresses the Veteran's weight loss from 2010, and there has not been substantial compliance with previous remand directives. Unfortunately, another remand is necessary to obtain an addendum opinion on this narrow question before the claim can be adjudicated. 2. Entitlement to a TDIU is remanded. The Veteran's combined disability rating is less than 70 percent and he does not have a single disability rated 60 percent disabling. Therefore, the threshold for TDIU consideration under 38 C.F.R. § 4.16(a) is not met. However, because the Veteran's hepatitis C may produce an increased rating that would meet the criteria, the issues are inextricably intertwined for the appeal. Accordingly, a remand of the claim for entitlement for TDIU is required. The matters are REMANDED for the following action: 1. Forward the claims file to an appropriate examiner to obtain an addendum opinion regarding whether the weight loss from February 2010 to April 2010 was due to anorexia caused by the Veteran's hepatitis C. A physical examination is not necessary. After reviewing the claims file, the examiner should answer the following questions: Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's 15-20 pound weight loss in the 3-month period between the February and April 2010 examinations (185 pounds to 165-70 pounds) was a result of anorexia? Why or why not? If yes, is it at least as likely as not that the anorexia was due to his hepatitis C? Why or why not? Please provide the medical reasoning for each opinion. (Continued on the next page) 2. Readjudicate the issue of entitlement to TDIU. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Solomon 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.