Citation Nr: 21031965 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 16-42 183 DATE: May 25, 2021 REMANDED 1. Entitlement to an initial disability rating in excess of 10 percent for service-connected hepatitis C is remanded. 2. Entitlement to a total evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service in the United States Army from February 1968 to February 1971. This case comes to the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with the AOJ's determination, and the present appeal ensued. In addition to the issue on appeal, the Veteran also initiated an appeal seeking to establish service connection for posttraumatic stress disorder (PTSD). In a November 2016 Decision Review Officer (DRO) decision, the AOJ granted the claim for service connection for PTSD. As such, that appealed issue has been abrogated and is no longer in appellate status. Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). In January 2016, the AOJ granted an increased initial rating for the Veteran's service-connected hepatitis C, increasing the Veteran's initial rating from 0 percent to 10 percent. As this was not a full allowance of the benefits of the issue on appeal, the appeal remains in appellate status. AB v. Brown, 6 Vet. App. 35, 38- 39 (1993). The Board notes that in a July 2013 statement provided by the Veteran indicated that the symptoms related to his service-connected Hepatitis C contributed to his retirement. Accordingly, the issue of entitlement to a TDIU has been raised in connection with the Veteran's appeal seeking an increased initial evaluation for hepatitis C, and the former is considered to be part and parcel of the latter. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The title page has been amended to include this issue, which will be addressed in the remand section. Additional matter Although the Veteran's claim for service connection for PTSD has been abrogated and is no longer on appeal, the Board notes that in April 2017 the Veteran filed a supplemental claim, seeking an increased rating for his service-connected PTSD. While the AOJ has acknowledged the filing of this claim, it does not appear that actions to develop or adjudicate such have been undertaken in the past four years. Entitlement to an initial disability rating in excess of 10 percent for service-connected hepatitis C A review of the record indicated that the Veteran was last provided a VA medical examination eight years ago, in May 2013, prior to the granting of service connection. The Veteran contends that the entirety of his symptoms related to his hepatitis C were not considered and documented during his May 2013 examination. Further, the Veteran's representative has stated that the long-standing hepatitic C can lead to further liver damage. Therefore, the claim must be remanded for a new VA examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (VA must provide a new examination where a veteran claims the disability is worse than when originally rated and the available evidence is too old to adequately evaluate the current severity); Caffrey v. Brown, 6 Vet. App. 377, 381 (1995). Entitlement to a total evaluation based on individual unemployability due to service-connected disabilities (TDIU) In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court stated that a claim for a TDIU due to service-connected disability is part and parcel of a rating claim when TDIU is raised by the record. In a July 2013 statement, the Veteran stated that his symptoms related to his service-connected hepatitis C contributed to his retirement. Therefore, the issue of TDIU has been raised by the record and has not been adjudicated by the RO. As such, remand is necessary for additional development. A remand of this issue is necessary to obtain a current VA Form 21-8940, Veteran's Application for Increased Compensation Based Unemployability. Additional development is also required regarding the Veteran's previous employment and education level. The action requested with respect to the Veteran's increased rating claims also requires that the Board defer any decision as to the TDIU claim pending the completion of that development. On remand, the RO must request that the Veteran complete this form and adjudicate the issue of entitlement to a TDIU under Rice. Since the claims file is being returned it should be updated to include any recent VA treatment records that are not of record. See 38 C.F.R. § 3.159 (c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the current nature of his diagnosed hepatitis C. The reviewer should be given full access to the Veteran's complete VA claims file. The reviewer must specifically note on the report whether the Veteran's VA claims file was reviewed in connection with this examination. All necessary tests should be conducted, and the examiner should review the results of any testing prior to completion of the report. The examiner should report all pertinent findings. In addition to objective test results, the examiner should fully describe the functional effects caused by the hepatitis C disability. The examiner must also discuss the impact that the Veteran's hepatitis C has on his ability to secure and maintain substantially gainful employment. 2. The AOJ should send VCAA notice for a TDIU and any related development (such as a VA Form 21-8940). 3. After all available evidence has been associated with the record, the AOJ should review the evidence and determine whether further development is warranted for a TDIU for the entire period on appeal. The AOJ should take any additional development as deemed necessary. 4. After the above development has been completed, adjudicate the Veteran's claim. If the benefits sought remain denied, provide the Veteran and his representative with a supplemental statement of the case, and return the case to the Board. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. W. Morgan, 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.