Citation Nr: 0002894 Decision Date: 02/04/00 Archive Date: 02/10/00 DOCKET NO. 98-15 097 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to a higher evaluation for service-connected hepatitis C, currently evaluated as noncompensable. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. R. Gleeson, Associate Counsel INTRODUCTION The veteran served on active military duty from May 1970 to June 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office in Jackson, Mississippi (RO), which granted service connection for hepatitis, with an initial noncompensable evaluation. The veteran testified at a Travel Board hearing in June 1999. REMAND The veteran was granted service connection for hepatitis C in August 1998, with a noncompensable evaluation. The claims file contains outpatient treatment records from a VA Medical Center (VAMC), which show that the veteran has undergone recent assessment of his hepatitis. In December 1998, it was noted that he had mild fatigue but was otherwise stable with essentially normal liver function studies and without abdominal pain. It was further noted that he was to return to the clinic in 4 weeks for consideration of a liver biopsy. It is not clear from the record whether such a procedure was performed. In January 1999, an ultrasound of the liver was performed, which showed no definite focal abnormalities, but some coursing of the echo texture suggesting hepato-cellular disease. Clinical records indicate that treatment options were being discussed at that time. The veteran testified at a Travel Board hearing in June 1999 that he was scheduled to consult with a VA doctor that month regarding recommended treatment with Interferon for hepatitis. However, the most recent VAMC treatment records in the claims file date from February 1999. Thus, it is not apparent from the claims file whether the veteran is currently undergoing medical therapy for hepatitis as had been recommended by his treating physician. At the hearing, the veteran also testified that he had been hospitalized at a county hospital in April 1999 due to nausea and diarrhea. The veteran stated that he had the rotavirus. There are no treatment records from this episode in the claims file. Infectious hepatitis with marked liver damage manifested by liver function tests and marked gastrointestinal symptoms or with episodes of several weeks duration aggregating three or more a year and accompanied by disabling symptoms requiring rest therapy is rated 100 percent disabling. With moderate liver damage and disabling recurrent episodes of gastrointestinal disturbance, fatigue, and mental depression, it is rated 60 percent disabling. With minimal liver damage with associated fatigue, anxiety, and gastrointestinal disturbance of lesser degree and less than three times a year but necessitating dietary restriction or other therapeutic measures, it is rated 30 percent disabling. With demonstrable liver damage with mild gastrointestinal disturbance, it is rated 10 percent disabling. When healed, nonsymptomatic, it is rated 0 percent disabling. 38 C.F.R. § 4.114, Diagnostic Code 7345. The veteran has indicated that there are additional medical records available which are relevant to his claim, including records pertaining to treatment for hepatitis, which is one of the criteria for a 30 percent rating. There is also indication from the medical evidence of file that there may be additional outpatient clinic records relating to a liver biopsy; the results of such a study is relevant to the question of whether there is any demonstrable liver damage, which is also one of the criteria for a compensable rating. The VA's statutory duty to assist the veteran includes the obligation to obtain pertinent treatment records, the existence of which has been called to its attention. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Ivey v. Derwinski, 2 Vet. App. 320 (1992); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). It is the also the Board's judgment that, given the apparent availability of additional relevant medical evidence, the veteran should be afforded another VA gastrointestinal examination, which includes a review of the additional treatment and diagnostic records, for the purpose of determining the current severity of his service-connected hepatitis. Caffrey v. Brown, 6 Vet. App. 377 (1994). The Board is cognizant of a VA compensation examination performed as recently as August 1998, the veteran's current 100 percent combined service-connected rating, and his physical condition, but, in view of the foregoing and his recent Travel Board hearing testimony, the Board finds that additional development is warranted. Accordingly, this claim is REMANDED for the following further development: 1. The RO should obtain all VAMC records pertaining to the veteran's claim for a higher evaluation for hepatitis from February 1999 to the present. The RO should further assist the veteran in obtaining all relevant treatment records from non-VA providers, including those from a county hospital where the veteran was hospitalized in April 1999. All records should be associated with the claims file. 2. Following the completion of the above, the veteran should be scheduled for a VA examination for diseases of the liver. The examiner should review the claims file, including any newly associated records, prior to conducting the examination. The examiner is asked to conduct all necessary tests and studies, and to address the question of whether the veteran has liver damage, and if so, to what degree. The physician should specifically state whether the veteran's hepatitis is manifested by demonstrable liver damage, gastrointestinal disturbance, fatigue, anxiety, or depression. If gastrointestinal disturbance is apparent, the examiner should indicate the degree of such disturbance (i.e., mild, moderate, marked), how often it occurs (i.e., recurrent or of several weeks duration, aggregating three or more a year and accompanied by disabling symptoms requiring rest therapy), and whether such symptomatology necessitates dietary restriction or other therapeutic measures. 3. Thereafter, the RO should readjudicate the veteran's claim, giving appropriate considerate to whether the veteran has liver damage, symptoms of hepatitis, and whether he is undergoing treatment for hepatitis. If the decision remains adverse to the veteran, both he and his representative should be furnished a supplemental statement of the case and provided an appropriate period of time in which to respond thereto. The purpose of this REMAND is to obtain additional information, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). R. F. WILLIAMS Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1999).