Citation Nr: 23005358 Decision Date: 01/27/23 Archive Date: 01/27/23 DOCKET NO. 16-27 701 DATE: January 27, 2023 ORDER Entitlement to service connection for hepatitis C is granted. REMAND Entitlement to a total disability rating due to unemployability (TDIU) prior to July 12, 2021, is remanded. FINDING OF FACT The Veteran's hepatitis C had its onset in service or is etiologically related to his active service. CONCLUSION OF LAW The criteria for service connection for hepatitis C are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1966 to September 1968. These matters come to the Board of Veterans' Appeals (Board) on appeal from an August 2013 Department of Veterans Affairs (VA) regional office (RO) rating decision. These matters were before the Board in November 2018, April 2021, and November 2021, at which times they were remanded for additional evidentiary development. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Entitlement to service connection for hepatitis C The Veteran contends that his hepatitis C is related to service, to include an in-service blood transfusion while serving in Vietnam, exposure to herbicide agents, in-service use of illegal substances, an in-service herpes diagnosis, or stepping on a sharp object in Vietnam. After reviewing the record, the Board finds that the evidence is at least in equipoise as to whether the Veteran's hepatitis C began in or is otherwise etiologically linked to service. In a November 2013 lay statement, the Veteran stated that while serving in Vietnam at a "forward outpost," his company was being shelled by the enemy and as he was retreating into the bunker he was hit with a "small piece of shrapnel or step[ped] on something sharp." He then stated that he was "bleeding a lot and went to medic where I received treatment and some blood." January 1968 service treatment records show a sore on the Veteran's left arm that was diagnosed as cellulitis; the Veteran did not know of the cause. The Veteran's September 1968 exit examination shows that he was treated for herpes infection on his penis intermittently. There is nothing in his service treatment file reflecting a blood transfusion. In a December 2015 letter, the Veteran's physician, who has treated him since 1983, opined that his hepatitis C was "secondary to blood transfusion he received while in the military." A separate November 2015 post-service treatment note shares that the Veteran reported receiving "blood products" and had "possible contact with infusion of blood transfusions in 1968 in Vietnam." A November 2019 VA examination was obtained. However, the April 2021 Board decision found that it was inadequate as it did not comply with the Board's prior November 2018 remand directives. As such, it will not be discussed further. Another June 2021 VA examination was obtained. However, the November 2021 Board decision found that it was insufficient as it did not comply with the Board's prior April 2021 or November 2018 remand directives. As such, it will not be discussed further. In a February 2022 VA medical opinion, the VA examiner opined that it was at least as likely as not that the Veteran's hepatitis C is related to service. The examiner stated that "if" the Veteran received a blood transfusion in service, "then it is at least as likely as not a possible source of Hepatitis C infection," as blood was not properly screened for hepatitis C before 1992. The examiner added that the Veteran's hepatitis C was not related to herbicide exposure or directly from his shrapnel skin injury. In a May 2022 addendum, the VA examiner clarified that her opinion "depends on whether blood transfusion actually happened or no." She also stated that stepping on a sharp random object "carries very negligible risk" in and of itself. In an October 2022 lay statement, the Veteran stated that he has had hepatitis C "all of my life after my eleven-month tour in Vietnam." In a November 2022 addendum opinion, the VA examiner clarified that while the Veteran was treated for herpes in service, "it cannot be suggested that the veteran participated in high-risk sexual activity," and a result, this did not cause his hepatitis C. Here, the Veteran has established the first element necessary to establish direct service connection by showing the existence of a present disability of hepatitis C. The next question is whether there was an in-service incurrence or aggravation of a disease or injury. The Veteran's main, and successful, argument is that his hepatitis C is related to an in-service blood transfusion. The only in-service records report that the Veteran had cellulitis of the left arm and herpes on his penis; he is also presumed exposed to herbicides. 38 C.F.R. § 3.309(e). However, there is no report of a blood transfusion. Nevertheless, the Veteran is competent to relay the things he observes through his senses. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). As applied here, he credibly and consistently stated throughout the appeal period that he received a blood transfusion in Vietnam. In particular, his November 2013 lay statement describes in sufficient detail his account of the combat event. In this regard, the Veteran is protected by certain provisions as a combat veteran. 38 U.S.C. § 1154(b) (directing VA to "accept as sufficient proof . . . satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service."). This finding is also supported by the November 2015 and December 2015 private treatment records as they are based on a familiarity with the Veteran and his personalized treatment. Black v. Brown, 10 Vet. App. 279 (1997). Given the detail of the November 2013 lay statement, and applying § 1154(b), the Board concedes that the Veteran underwent a blood transfusion in service while serving in Vietnam. The last question is whether the Veteran's hepatitis C and in-service blood transfusion are related. Here, the December 2015 private letter, February 2022 VA examination, and May 2022 VA medical opinion all support such a connection. Indeed, the February 2022 VA examiner opined that "if" the Veteran received a blood transfusion in service, "then it is at least as likely as not a possible source of Hepatitis C infection" as blood was not properly screened for hepatitis C before 1992. As an in-service blood transfusion has been conceded, this rationale is accepted. With resolution of all reasonable doubt in favor of the claim, the Board finds that all elements of service connection have been satisfied, and service connection for hepatitis C is warranted. See 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(d). The claim is granted. REASONS FOR REMAND Entitlement to TDIU prior to July 12, 2021, is remanded. Two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered. Harris v. Derwinski, 1 Vet. App. 180 (1991). The Board has herein granted the Veteran's claim for entitlement to service connection for hepatitis C. As such, the issue of TDIU is intertwined with the RO's pending disability rating for service-connected hepatitis C. Furthermore, as the Board noted in the November 2021 decision, the Veteran did not satisfy the schedular criteria for TDIU prior to July 12, 2021, and the Board thus referred the issue to the Director of Compensation Service for extraschedular consideration. While TDIU after July 12, 2021, has been awarded, this case has not been submitted to the Director of Compensation Service for extraschedular consideration prior to this date. Stegall v. West, 11 Vet. App. 268 (1998). The Board does not have the authority to award an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Consequently, the issue of entitlement to TDIU is again referred to the Director of the Compensation Service for extraschedular consideration pursuant to 38 C.F.R. § 4.16(b). This matter is REMANDED for the following action: After assigning a disability rating for the Veteran's now service-connected hepatitis C disability, refer the claim for TDIU prior to July 12, 2021, to VA's Director of Compensation Service for extraschedular consideration. Include a copy of this remand as well as a full statement as to the Veteran's service-connected disabilities, employment history, education, and vocational attainment, and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). If the Veteran qualifies for a schedular TDIU prior to July 12, 2021, based on the rating assigned for his newly service-connected hepatitis C disability rating, adjudicate the claim for TDIU for that period. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Finelli, Christopher 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.