Citation Nr: 0810706 Decision Date: 04/01/08 Archive Date: 04/14/08 DOCKET NO. 06-14 072 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to an initial compensable disability rating for Child A cirrhosis associated with Hepatitis C. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION The veteran served on active duty from January 1986 to January 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office in Milwaukee, Wisconsin (RO). In that decision, the RO granted service connection for Child A cirrhosis associated with Hepatitis C, and assigned that disability a noncompensable disability rating (zero percent). The veteran appealed that decision to the Board as to the assigned disability rating. FINDING OF FACT The medical evidence of record shows that the veteran's service-connected Child A cirrhosis associated with Hepatitis C is not shown to be productive of symptoms such as weakness, anorexia, abdominal pain, and malaise. CONCLUSION OF LAW The criteria for an initial compensable evaluation for Child A cirrhosis associated with Hepatitis C have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.31, 4.114, Diagnostic Code 7312 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act (VCAA) (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007)) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Id. In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that any error by VA in providing the notice required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial, and that once an error is identified as to any of the four notice elements the burden shifts to VA to demonstrate that the error was not prejudicial to the appellant. During the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. This appeal arises from the veteran's disagreement with the initial evaluation following the grant of service connection for Child A cirrhosis associated with Hepatitis C in a September 2005 rating decision. Prior to that decision, the RO provided the veteran notice appearing to satisfy VCAA notice requirements with respect to requirements for establishing entitlement to service connection. Courts have held that in such appeals, arising from disagreement with the initial evaluation following a grant of service connection, once service connection is granted, the claim is substantiated; thereafter additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Moreover, the statutory notice required by the VCAA is only one part of the system of notice required and provided in the VA claim adjudication process. See Wilson v. Mansfield, No. 07-7099 (Fed. Cir. October 15, 2007). Under Wilson (citing Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), 38 U.S.C.A. § 5103(a) requires only a generic notice after the initial claim for benefits has been filed and before the initial decision; and does not apply throughout the claim adjudication process since other forms of notice-such as contained in the rating decision, statement of the case, and supplemental statement of the case-provide the claimant with notice of law applicable to the specific claim on appeal. Id. In this case, notice applicable to the specific claim on appeal was provided by the statement of the case and supplementary statements of the case. As to VA's duty to assist, VA has associated with the claims folder the veteran's private and VA treatment records, and he was afforded several formal VA examinations, most recently in July 2002 and February 2007. The Board finds that no additional assistance is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). II. Analysis The veteran is claiming entitlement to higher initial disability rating than currently in effect for his service- connected Child A cirrhosis associated with Hepatitis C. Disability evaluations are determined by comparing present symptomatology with the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2007). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). In evaluating the veteran's claims, all regulations which are potentially applicable through assertions and issues raised in the record have been considered, as required by Schafrath. In cases such as this in which the veteran has appealed the initial rating assigned after service connection is established, the Board must consider the initial rating, and, if indicated, the propriety of a staged rating from the initial effective date forward. See Fenderson v. West, 12 Vet. App. 119, 126-7 (1999). See also Hart v. Mansfield, 21 Vet. App. 505 (2007) (finding staged ratings appropriate also in cases where the appeal was not as to the initial rating assigned after service connection is established). VA regulations also require that disability evaluations be based upon the most complete evaluation of the condition that can be feasibly constructed with interpretation of examination reports, in light of the whole history, so as to reflect all elements of disability. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). The RO initially identified the veteran's cirrhosis disability on appeal as "Child's A cirrhosis associated with Hepatitis C." This expression of the disability was based on a diagnosis contained in an August 2005 VA examination report, of "Child A cirrhosis is likely a result of Hepatitis C." The RO later dropped the possessive form. The designation of "Child A" is one category under the Child-Pugh classification, which is used for the most part to assess the prognosis for chronic liver disease. The assessment was based on a combination of several clinical measures of the disease. Under that classification scheme, chronic liver disease is classified as being in one of three categories-Child-Pugh class A to C. As noted in evidence on file discussed below, based on clinical testing the veteran's cirrhosis was designated as Child A. After the August 2005 VA examination, the report of a VA examination in March 2007 contains a diagnosis of "Hepatitis C cirrhosis". This may be a more appropriate expression of the veteran's diagnosed liver disease, but for consistency the Board shall throughout the decision refer to the service- connected "Child A cirrhosis associated with hepatitis C". The RO evaluated the Child A cirrhosis associated with hepatitis C under diagnostic criteria for evaluating disorders of the digestive system, which provide that a single evaluation will be assigned under the diagnostic code reflecting the predominant disability picture. 38 C.F.R. § 4.114. The RO has separately service-connected hepatitis C under Diagnostic Code 7354, rated at a 20 percent level; and diagnostic criteria providing that hepatitis C sequelae (such as cirrhosis of the liver) be evaluated under an appropriate diagnostic code, but not using the same signs and symptoms as the basis for evaluation under Diagnostic Code 7354. See Note 1 following 38 C.F.R. § 4.114. The RO evaluated the Child A cirrhosis associated with hepatitis C at a noncompensable level pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7312 (2007). Under that code, cirrhosis of the liver, primary biliary cirrhosis, or cirrhotic phase of sclerosing cholangitis is evaluated as follows: A 10 percent disability rating is provided for cirrhosis of the liver manifested by symptoms such as weakness, anorexia, abdominal pain, and malaise. A 30 percent evaluation is assigned for cirrhosis when there is portal hypertension and splenomegaly, with weakness, anorexia, abdominal pain, malaise, and at least minor weight loss. A 50 percent disability rating is assigned for cirrhosis when there is a history of one episode of ascites, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy. A 70 percent disability rating is assigned for cirrhosis when there is a history of two or more episodes of ascites, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy, but with periods of remission between attacks. A 100 percent disability rating is assigned for cirrhosis when there is generalized weakness, substantial weight loss, and persistent jaundice, or with one of the following refractory to treatment: ascites, hepatic encephalopathy, hemorrhage from varices or portal gastropathy (erosive gastritis). 38 C.F.R. § 4.114, Diagnostic Code 7312 (2006). The note following Diagnostic Code 7312 provides that for evaluation under that code, documentation of cirrhosis (by biopsy or imaging) and abnormal liver function tests must be present. Note 2 following Diagnostic Code 7354 explains that an "incapacitating episode" means a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician. The evidence material to the veteran's claim includes private and VA medical records dated from 2003 to 2007, including reports of VA examinations in August 2005 and March 2007. Private medical records include the report of a September 2003 liver biopsy showing chronic hepatitis C, grade 1, stage 4; cirrhotic liver; and prominent micro- and macro-steatosis involving 50 percent of the liver parenchyma. The report of a liver function test in October 2003 showed abnormal liver function results. In an April 2005 statement, Kia Saeian, M.D., noted that when seen in August 2003, the veteran had laboratory test results documenting active viral replication with findings that were likely in large part due to Hepatitis C. Dr. Saeian noted that the veteran was successfully treated and thereby the hepatitis C had been eradicated. During an August 2005 VA examination of the liver, the examiner reported the following history. The examiner noted that in 2003 the veteran was diagnosed with Hepatitis C; and that at that time a work-up involving liver biopsy revealed findings that the current examiner classified as Child A cirrhosis. The veteran was found to be well-compensated and therefore began a course of pegylated interferon alpha 2-a, and ribavirin as treatment for the Hepatitis C. Post treatment examination showed that the Hepatitis C was eliminated. Because of the presence of cirrhosis, the veteran was currently followed on a biannual basis in order to evaluate for the presence of hepatoma. There has been no evidence of any liver cancer; and no other autoimmune hepatitis, hepatitis B, hemochromatosis, or other liver disease. The veteran denied any particular current symptoms. He denied having any abdominal pain, nausea, vomiting, or weight loss. The examiner noted he saw no other evidence of cirrhosis, portal hypertensive gastropathy, ascites, hepatic encephalopathy, or hypertension. On examination, the abdomen was soft, nontender, nondistended, and with positive bowel sounds. The examiner made findings that there were no ascites, hepatosplenomegaly, abdominal veins, spider angiomata, or evidence of malnutrition. The report contains a diagnosis of Child A cirrhosis is likely a result of Hepatitis C. The examiner opined that the veteran was well-compensated, and had been cured of Hepatitis C. In a February 2007 letter, Dr. Saeian notified the veteran that recent computed tomography scan results showed no evidence of cancer. The report of a March 2007 VA examination of the liver shows that the veteran reported complaints of constant fatigue, but no nausea, vomiting or anorexia. He also reported complaints of intermittent arthralgia involving his knees and hands. The veteran reported that he did not have any right upper quadrant pain, incapacitating episodes of fatigue, malaise, nausea, vomiting, anorexia; and no right upper quadrant pain severe enough to require bed rest and treatment by a physician. He was currently not on any treatment for his Hepatitis C. He had been on pegylated interferon and ribavirin until November 2004. The veteran reported that he was not on any other diet therapy for his Hepatitis C cirrhosis. He reported that his main complaint was having diarrhea once a week. The veteran had no history of liver malignancy or hepatocellular carcinoma; and no liver transplant. He had no episodes of bleeding, encephalopathy or ascites. On examination the veteran's abdomen was soft, nontender, nondistended, and without organomegaly. There was no ascites. There was no evidence of portal hypertension. There was no jaundice, palmar erythema or spider angioma. The veteran was well nourished. The examiner reviewed a January 2007 computed tomography scan, which showed cirrhosis, with no focal lesion to suggest malignancy. The examiner noted that testing in June 2006 was negative for Hepatitis C. The report contains a diagnosis of Hepatitis C cirrhosis. The examiner noted that the veteran was currently well-compensated Child's A cirrhotic; and that the veteran's Hepatitis C was undetectable on his most recent qualitative PCR. Reports of private CT scans of the abdomen dated between January 2006 and June 2007 show impressions of hepatic cirrhosis; evidence of mild hepatic steatosis (June 2006); and no evidence of liver cancer. The report of the CT scan taken in June 2007 contains an impression of (1) unchanged hypervascular liver foci, likely perfusion anomalies; (2) multiple simple hepatic cysts unchanged; and (3) no focal lesions to suggest hepatocellular carcinoma. The report also indicated that there was no evidence of ascites. In summary, the record documents the presence of cirrhosis by biopsy and imaging; and liver function testing showed abnormal findings. Therefore, evaluation under Diagnostic Code 7312 is appropriate for evaluating the veteran's Child A cirrhosis associated with Hepatitis C. See note following 38 C.F.R. § 4.114, Diagnostic Code 7312. The competent evidence of record does not show any significant symptoms linked to the veteran's Child A cirrhosis associated with Hepatitis C. The evidence shows that Hepatitis C was successfully treated and eradicated in 2003, with residual cirrhosis of the liver. The liver cirrhosis was classified as Child A. The veteran's most recent VA examination (March 2007) showed that his main complaints were of constant fatigue and periodic diarrhea (once a week). He reported that he had no nausea, vomiting, anorexia, right upper quadrant pain, incapacitating episodes of fatigue, malaise, episodes of bleeding, encephalopathy, or ascites. VA examination most recently revealed that the veteran's abdomen was soft, nontender, nondistended, and without organomegaly. There was no ascites. There was no evidence of portal hypertension, jaundice, palmar erythema or spider angioma. The veteran was well nourished. Basically, the veteran was currently well- compensated Child A cirrhotic; and his Hepatitis C was undetectable on diagnostic testing. Based on the foregoing, the Board does not find that the veteran's condition due to his Child A cirrhosis associated with Hepatitis C approximates the criteria under Diagnostic Code 7312 required for a compensable disability rating. Under that code, the evidence does not show that the veteran's liver cirrhosis is productive of symptoms such as weakness, anorexia, abdominal pain, and malaise. The veteran did report a complaint of constant fatigue at the March 2007 VA examination. No such complaint, however, is shown in the report of the previous VA examination, or in any treatment records on file. Nor do any medical records indicate any objective finding of constant fatigue or malaise. Moreover complaints of fatigue and loss of appetite are contemplated in the rating of 20 percent for Hepatitis C, which was successfully treated and eradicated, according to the medical record. Compensating these symptoms under Diagnostic Code 7312, in addition to Code 7354 would constitute "pyramiding," which is not permitted under the applicable regulation. (See 38 C.F.R. § 4.14 (2007) which provided that the evaluation of the same disability under various diagnoses is to be avoided.) In sum, the preponderance of the evidence is against the veteran's claim for an initial compensable disability rating under diagnostic criteria of VA's Schedule for Rating Disabilities. 38 C.F.R. §§ 4.31; 4.114, Diagnostic Code 7312. As the assigned noncompensable evaluation reflects the actual degree of impairment shown since the date of the grant of service connection, there is no basis for staged ratings for this claim. The Board acknowledges that in reaching its determination in this decision, VA is statutorily required to resolve the benefit of the doubt in favor of the veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). ORDER Entitlement to a compensable schedular rating for Child A cirrhosis associated with Hepatitis C is denied. ____________________________________________ N. R. ROBIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs