BVA9505612 DOCKET NO. 93-09 009 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an effective date for an award of disability compensation for service connection for hepatitis C, prior to March 12, 1991. 2. Entitlement to an increased rating for hepatitis C, currently evaluated as 30 percent disabling. 3. Entitlement to a total rating based on individual unemployability due to service-connected disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The veteran served on active duty from September 1955 to September 1959. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from decisions of the Regional Office (RO). By rating action dated in June 1991, the RO granted service connection for hepatitis C, and assigned it a 10 percent evaluation, effective March 12, 1991. By rating decision in December 1991, the RO increased the evaluation assigned the service-connected hepatitis C to 30 percent, effective March 12, 1991. In separate rating actions in July 1992, the RO denied the veteran's claims for an earlier effective date for the award of service connection for hepatitis C and a total rating based on individual unemployability due to service-connected disability. In a statement in support of claim, submitted in September 1991, the veteran requested a reevaluation of his case for temporary total rating purposes pursuant to the provisions of 38 C.F.R. § 4.29 (1994), based on a period of hospitalization that month. Since this matter has not as yet been adjudicated or developed for appeal, and inasmuch as it is not inextricably intertwined with the matters now before the Board, it is referred to the RO for appropriate initial action. REMAND The initial question before the Board is whether the veteran has submitted a well-grounded claim as required by 38 U.S.C.A. § 5107 (West 1991). The United States Court of Veterans Appeals (the Court) has held that a well-grounded claim is one which is plausible or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78 (1990). In this case, the veteran's evidentiary assertions concerning the severity of his service-connected disabilities that are within the competence of a lay party to report are sufficient to conclude that his claims for an increased rating and for a total rating based on individual unemployability due to service- connected disability are well grounded. Proscelle v. Derwinski, 2 Vet.App. 629 (1992); Espiritu v. Derwinski, 2 Vet.App. 492 (1992), King v. Brown, 5 Vet.App. 19 (1993). The record discloses that the veteran received blood transfusions during heart surgery while hospitalized at a Department of Veterans Affairs (VA) medical facility in July 1988. He subsequently developed hepatitis C, as a result of the transfusions, and service connection was granted on the basis of 38 U.S.C.A. § 1151 (West 1991). While the veteran has continued to receive ongoing clinical treatment by the VA for his service- connected chronic hepatitis C, he has never been afforded a VA medical examination for compensation purposes to determine the severity of his hepatic disability. It is noted that the next higher evaluation of 60 percent for infectious hepatitis requires a showing of moderate liver damage and disabling recurrent episodes of gastrointestinal disturbance, fatigue, and mental depression. 38 C.F.R. Part 4, Diagnostic Code 7345 (1994). Service connection is in effect for hepatitis C and the residuals of a fracture of the right radius with surgical resection of the right radial head, rated 20 percent disabling. The veteran has asserted that he is unable to work as a result of his service- connected disabilities. A VA medical examination for compensation purposes to determine the severity of his service- connected right arm disability has not been accomplished since December 1980. The VA has a duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991). The Court has held that the duty to assist the veteran in obtaining and developing available facts and evidence to support his claim includes obtaining adequate VA examination. This duty is neither optional nor discretionary. Littke v. Derwinski, 1 Vet.App. 90 (1990). This duty also includes providing additional VA examinations by a specialist when recommended. Hyder v. Derwinski, 1 Vet.App. 221 (1991). The fulfillment of the statutory duty to assist includes conducting a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet.App. 121, 124 (1991). The Court has held that where the veteran claims that a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition, VA must provide a new examination. Olson v. Principi, 3 Vet.App. 480, 482 (1992), citing Proscelle, 2 Vet.App. at 632. Appellate consideration of the issue of entitlement to an earlier effective date for an award of service connection for hepatitis C is deferred pending completion of the development requested below. Under the circumstances of this case, the Board believes that additional development of the evidence is required. Accordingly, the case is REMANDED to the RO for action as follows: 1. The RO should contact the veteran and request that he furnish the names, addresses, and approximate dates of treatment of all medical providers from whom he has received treatment for hepatitis C and for his right arm disability since 1991. After securing the proper authorization for release of information, the RO should obtain copies of all treatment records referred to by the veteran, not already of record. 2. The veteran should be afforded a VA social and industrial survey to assess his employment history and current day-to-day functioning. A written copy of the report should be inserted in the claims folder, and it should focus on the effects of his service-connected right arm and hepatitis on his ability or inability to work. 3. The veteran should then be afforded a VA examination by specialists in liver disease, orthopedics, and psychiatry, if available, to determine the nature and extent of his service-connected disabilities. All necessary tests should be performed. The claims folder should be made available to the examiners in conjunction with the examination. The examiners should be asked to determine the extent to which the service-connected right arm and hepatitis contribute to the veteran's employability or unemployability, exclusive of any other coexisting nonservice-connected disability. Following completion of the above, the RO should review the evidence and determine whether the veteran's claims on appeal may now be granted. If not, he and his representative should be furnished an appropriate supplemental statement of the case, and they should be provided an opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration. J. F. GOUGH Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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) (1994).