Citation Nr: 1321973 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 10-00 897 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan THE ISSUES 1. Entitlement to a restoration of a 20 percent disability rating for hepatitis C, to include the issue of whether the reduction in rating was proper. 2. Entitlement to a disability rating greater than 10 percent for hepatitis C. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION The Veteran served on active duty from November 1969 to March 1973. He received multiple decorations for his service in Vietnam, to include the Combat Infantry Badge, the Bronze Star Medal, the Vietnam Service medal with two campaign stars, and the Vietnam Campaign Medal. This matter comes before the Board of Veterans' Appeals (Board) from a September 2008 RO decision which implemented a reduction in the disability rating assigned to the Veteran's hepatitis C from 20 percent to 10 percent, effective in December 2008. Because the Veteran is also seeking a higher rating for the service-connected disability, the Board has recharacterized the issue as indicated on the title page above. The issue of entitlement to a disability rating greater than 10 percent for hepatitis C is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The RO followed all required procedures in proposing and implementing the reduction in the Veteran's disability rating from 20 percent to 10 percent; and sustained improvement in his disability was shown in the available medical evidence. CONCLUSION OF LAW The reduction in the Veteran's disability rating from 20 percent to 10 percent was legally proper. 38 U.S.C.A. §§ 1155, 5107, 5112 (West 2002); 38 C.F.R. §§ 3.105(e), 4.1, 4.2, 4.10, 4.114, Diagnostic Code 7354 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that his hepatitis C symptoms have not changed or diminished since the 20 percent disability rating was awarded in 2004. His written correspondence with VA reflects a sense of personal betrayal and great suspicion of the government's actions in the reduction of his disability rating. Duties to notify and assist When an application for benefits is received, VA has certain notice and assistance requirements under the law. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). First, proper notice must be provided to a claimant before the initial VA decision on a claim for benefits and must: (1) inform the claimant about the information and evidence not of record necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The VA is also required to inform the Veteran of how the VA assigns disability ratings and effective dates. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was provided with this information in a June 2008 letter prior to the decision on appeal. With regard to the VA examination reports which are of record, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations obtained in this case are adequate with regard to the issue decided herein. The examination reports relied upon were predicated on a review of the claims folder and the relevant medical records contained therein, except where noted; contains a description of the history of the disability at issue; and documents and considers the Veteran's complaints and symptoms. The examiners considered the available pertinent evidence of record, and provided a rationale for the opinions rendered, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue which is decided herein has been met. 38 C.F.R. § 3.159(c)(4). The Veteran was notified in letters of December 2007 and June 2008, that he could submit medical evidence to show that his rating should not be reduced. He was also informed in the same letters that the best type of evidence to submit would be a statement from a physician who recently treated or examined him for hepatitis C. The report of an October 2007 VA examination reflects that the Veteran had a private primary care provider, and a private gastroenterologist, who had been treating his hepatitis C. There are no recent records reflecting such treatment, however, the Veteran has not provided such, or provided the requisite release form to VA to allow VA to assist him in obtaining these records. Review of the June 2008 notification letter reveals that he was provided with two copies of the relevant release of information form at that time. "The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). If the Veteran wished to fully develop his claim, he had a corresponding duty to assist by providing the requested information. The Board therefore holds that, even though the Veteran's claim has not been fully developed, the VA has fulfilled its duty to assist him to the extent possible. We will thus proceed to evaluate the claim based on the evidence currently of record. Service treatment records, VA treatment records, some private medical records, and VA examination reports have been obtained and reviewed in support of the Veteran's claim. All relevant records and contentions have been carefully reviewed. The Board therefore concludes that the VA's duties to notify and assist have been met with regard to the matters decided herein. Standard of review Once the evidence has been assembled, it is the Board's responsibility to evaluate the record. 38 U.S.C.A. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Board must consider all the evidence of record and discuss in its decision all "potentially applicable" provisions of law and regulation. See 38 U.S.C. § 7104(a); Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). The Board is also required to provide a statement of reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for its decision, as well as to facilitate further appellate review. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet. App. 517, 527 (1995); Gilbert, 56 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Analysis Historically, service connection for hepatitis C was granted effective in December 2004. A 20 percent disability rating was assigned at that time, based in part upon the Veteran's participation in a course of long-term medication for the reduction of the hepatitis C virus. Side effects of the treatment included weight loss, nausea, and occasional diarrhea. He finished this long-term course in due time, and achieved the desired result, as contemporaneous laboratory tests reflect that the virus level in his body was greatly reduced, and the overall health and function of his liver had improved. A review examination in October 2007 revealed that his weight had gone from below 200 pounds to over 230 pounds. He continued to report fatigue, weekly nausea, and occasional diarrhea. The RO proposed in December 2007 to reduce the disability rating to 0 percent. Based upon new medical evidence, including the report of a July 2008 VA examination which reflected complaints of fatigue, the RO then proposed reducing the rating to 10 percent. This action was accomplished effective in December 2008 and the Veteran has perfected a timely appeal to the Board challenging the reduction. Governing regulation found at 38 C.F.R. § 3.344 provides procedural and substantive protections in cases of proposed rating reductions which have been in effect at the same level for five years or more. As the Veteran's 20 percent disability rating had been in effect for fewer than five years when the reduction had been proposed, these protections are not applicable to the Veteran's case. Nevertheless, other VA regulations are applicable to rating reduction situations regardless of the time period the rating has been in effect. Procedurally, governing regulation requires that when the reduction in evaluation of a service-connected disability is considered warranted and the lower evaluation would result is a reduction of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address or record of the contemplated action and furnished detailed reasons therefor, and will be given sixty days for the presentation of additional evidence to show that compensation payments should be continued at their present level. If additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a sixty day period from the date of notice to the beneficiary of the final rating action expires. 38 U.S.C.A. § 5112; 38 C.F.R. § 3.105(e). Review of the actions taken by the RO in this case shows that the requirements of 38 C.F.R. § 3.105(e) were followed. Initially, when the grant of service connection and the initial award of 20 percent were implemented, the RO noted that because there was a likelihood of improvement, the 20 percent rating was not considered permanent and was subject to a future review examination. In October 2007, the RO notified the Veteran that he would be scheduled for a medical examination, so that the RO could review the severity of his service-connected disability to ensure that he was properly evaluated. After the results of the subsequent October 2007 examination were received, the RO prepared a proposal to reduce the disability rating from 20 percent to 0 percent, providing the Veteran with notice of this proposal in December 2007. As discussed above, he was also informed in that letter that he could submit medical evidence such as a statement from a treating physician. He was also informed that he had sixty days to present additional evidence, if he wished to challenge the reduction. The Veteran did challenge the reduction, submitting statements from family members, and requesting that another VA examination be provided. That examination was conducted in March 2011. Based upon the report of the March 2011 examination, the RO then determined that a reduction to 10 percent was in order. Thus, the Board determines that the RO followed all proper procedures in reducing the Veteran's rating to 10 percent, to include providing notice and an opportunity to submit evidence, and waiting the required periods of time prior to implementing the reduction. Substantively, a Veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C.A. § 1155. Prior to reducing a Veteran's disability rating, VA is required to comply with several general VA regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. See 38 C.F.R. §§ 4.1, 4.2, 4.10; Brown v. Brown, 5 Vet. App. at 413, 420 (1993). These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of the veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Such review requires VA to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. Thus, in any rating-reduction case, not only must it be determined that an improvement in a disability has actually occurred, but also that that improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. Id. Disability evaluations are assigned to reflect levels of current disability. The appropriate rating is determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In evaluating claims for increased ratings, the Board must evaluate the Veteran's condition with a critical eye toward the lack of usefulness of the body or system in question. 38 C.F.R. § 4.10. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. §§ 4.1, 4.41; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While a request for an increased rating must be viewed in light of the entire relevant medical history; where, as here, entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. 38 C.F.R. § 4.1; Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Because the level of a veteran's disability may fluctuate over time, the VA is required to consider the level of the veteran's impairment throughout the entire appeal period. In this respect, staged ratings are a sensible mechanism for allowing the assignment of the most precise disability rating-one that accounts for the possible dynamic nature of a disability while the claim works its way through the adjudication process. O'Connell v. Nicholson, 21 Vet. App. 89 (2007). In another relevant precedent, the Court noted that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. In reaching this conclusion, the Court observed that when a claim for an increased rating is granted, the effective date assigned may be up to one year prior to the date that the application for increase was received if it is factually ascertainable that an increase in disability had occurred within that timeframe. 38 U.S.C.A. § 5110. Hart v. Mansfield, 21 Vet. App. 505 (2007). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Under Diagnostic Code 7354, a compensable rating of 10 percent is warranted when there is serologic evidence of hepatitis C infection and the following signs and symptoms due to the hepatitis infection: intermittent fatigue, malaise, and anorexia or incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least one week, but less than two weeks, during the past 12 month period. A 20 percent rating is warranted when symptoms include daily fatigue, malaise, and anorexia (without weight loss or hepatomegaly), requiring dietary restriction or continuous medication; or for incapacitating episodes (with symptoms described above) having a total duration of at least two weeks, but less than four weeks, during the past 12-month period. A 40 percent rating is warranted when symptoms include daily fatigue, malaise, and anorexia, with minor weight loss and hepatomegaly; or for incapacitating episodes (with symptoms described above) having a total duration of at least four weeks, but less than six weeks, during the past 12-month period. A 60 percent rating is warranted when symptoms include daily fatigue, malaise, and anorexia, with substantial weight loss (or other indication of malnutrition), and hepatomegaly, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least six weeks during the past 12-month period, but not occurring constantly. A 100 percent rating is assigned for near- constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). 38 C.F.R. § 4.114, Diagnostic Code 7354. Note 1 under Diagnostic Code 7354 states: Evaluate sequellae, such as cirrhosis or malignancy of the liver, under an appropriate diagnostic code, but do not use the same signs and symptoms as the basis for evaluation under Code 7354 and under a diagnostic code sequellae. Note 2 defines an "incapacitating episode" as "a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician." 38 C.F.R. § 4.112, Code 7354. As noted above, in any rating-reduction case, not only must it be determined that an improvement in a disability has actually occurred, but also that that improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. In this case, because the Veteran had only recently completed a course of long-term medication for the reduction of the hepatitis C virus at the time the 20 percent disability rating was assigned, the results of that course were still undetermined. After a period of several years had passed, the RO appropriately revisited the matter. According to the report of the July 2008 VA examination, the Veteran's viral load was reduced by more than half by the long term medication, and remained at that level at the time of the examination. His liver function tests were normal with no hepatomegaly upon examination. The Veteran complained of extreme fatigue, nausea, frequent diarrhea, bloating and distension, reflux, and abdominal pain on a weekly basis. Given this medical information, the Board cannot find the RO's reduction to have been improper. His disability was measurably improved following the treatment, with no sign of liver disease upon either VA examination. Use of continuous medication to treat hepatitis C, anorexia, or disability resulting in "incapacitating episodes" was not shown. Because he continued to have complaints of fatigue and pain related to his hepatitis, the RO's assignment of a 10 percent disability rating is supportable as well. As set forth above, staged disability ratings are a useful tool for assigning accurate disability ratings over a period of time. O'Connell. The Board therefore finds that the RO's rating reduction was both procedurally and substantively correct. ORDER The reduction in the disability rating assigned to hepatitis C from 20 percent to 10 percent was proper. REMAND In the Veteran's January 2010 substantive appeal and in a separate January 2010 statement, he indicates he believes his hepatitis C has worsened. He also stated that he has dietary restrictions to keep his hepatitis under control. This claim for an increased rating subsequent to December 2008, when the reduction was implemented, has not been addressed by the RO. The Veteran's representative argues that a remand is required to determine whether the Veteran medically requires a restricted diet in the attempt to control his hepatitis C. In addition, it appears that there may be outstanding current medical records which may support the Veteran's claim for an increased disability rating. Private medical records dated through February 2005 were obtained in connection with the Veteran's claim for service connection. Although the Veteran indicated during the July 2008 VA examination that he was not receiving any private medical care as he no longer had insurance for it, he also reported that he had last sought care from his private gastroenterologist in April 2005. Thus, there may be several months of private medical records outstanding. However, because the time period at issue in the Veteran's request for an increased rating is from December 2008, when the reduction was implemented, until the present, the Board finds that no further efforts to obtain these records is warranted. IF, however, the Veteran has had additional private medical care for his hepatitis, he should inform the VA so that VA can assist him in obtaining these records. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded an opportunity to identify and submit any relevant private treatment records for inclusion in the record. If he requires assistance in obtaining any records, he must submit the appropriate release. 2. The RO should obtain any current records of VA medical treatment afforded to the Veteran in Ann Arbor, Michigan and all related VA facilities, for inclusion in the file. 3. The RO should then review these records for evidence as to whether the Veteran requires a restricted diet for his hepatitis C, and any other evidence pertinent to the rating criteria set forth at 38 C.F.R. § 4.114, Diagnostic Code 7354. If indicated, the RO should consider scheduling the Veteran for another VA examination pertinent to his hepatitis C, to include all relevant tests and studies. 4. After the development requested above has been completed, the RO should again review the record. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ M. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs