Citation Nr: 1752071 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 09-36 938 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to a rating in excess of 50 percent for hepatitis C with cirrhosis prior to January 4, 2007. 2. Entitlement to a rating in excess of 40 percent for hepatitis C since January 4, 2007. 3. Entitlement to a rating in excess of 70 percent for cirrhosis since January 4, 2007. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD David Gratz, Counsel INTRODUCTION The Veteran had active duty service from April 1966 to October 1969. He died in June 2015. The appellant is his surviving spouse and has been accepted as the substitute claimant in this matter. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), wherein the RO increased the Veteran's rating for hepatitis C with cirrhosis from 10 to 50 percent, effective as of the January 10, 2006, date of claim. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in September 2013. A transcript of the hearing is of record. In February 2014, the Board remanded the case for additional development. Thereafter, in July 2014, the RO granted separate ratings for hepatitis C and cirrhosis, assigning a 40 percent rating for hepatitis C and a 70 percent rating for cirrhosis, both effective as of January 4, 2007, the date on which the RO received the Veteran's notice of disagreement. In December 2015, the Board dismissed the Veteran's appeal in light of his death; however, the appellant has subsequently been substituted for the Veteran in this matter. FINDINGS OF FACT 1. From January 10, 2006 to January 3, 2007, the Veteran's hepatitis C resulted in fatigue and malaise, but not anorexia, hepatomegaly, or incapacitating episodes requiring treatment by a physician. 2. As of January 4, 2007, the Veteran's hepatitis C did not result in daily anorexia, incapacitating episodes requiring treatment by a physician, or near-constant debilitating symptoms. 3. From January 10, 2006 to January 3, 2007, the Veteran's cirrhosis resulted in a history of episodes of ascites and massive gastrointestinal bleed from gastric varices. 4. From January 4, 2007 to December 14, 2009, the Veteran's cirrhosis did not result in generalized weakness, substantial weight loss, and persistent jaundice, or; with one of the following refractory (unresponsive) to treatment: ascites, hepatic encephalopathy, hemorrhage from varices or portal gastropathy (erosive gastritis). 5. As of December 15, 2009, the Veteran's cirrhosis resulted in generalized weakness, substantial weight loss, and persistent jaundice, or; with one of the following refractory (unresponsive) to treatment: ascites, hepatic encephalopathy, hemorrhage from varices or portal gastropathy (erosive gastritis). 6. As of December 15, 2009, the Veteran has a single service-connected disability rated as 100 percent and, in addition, has other service-connected disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability, and involving different anatomical segments or bodily systems. CONCLUSIONS OF LAW 1. From January 10, 2006 to January 3, 2007, the criteria for a rating of 10 percent, but no higher, for hepatitis C have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.21, 4.114, Diagnostic Code (DC) 7354. 2. As of January 4, 2007, the criteria for a rating in excess of 40 percent for hepatitis C have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.21, 4.114, DC 7354. 3. From January 10, 2006 to January 3, 2007, the criteria for a rating of 70 percent, but no higher, for cirrhosis have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.21, 4.114, DC 7312. 4. From January 4, 2007 to December 14, 2009, the criteria for a rating in excess of 70 percent for cirrhosis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.21, 4.114, DC 7312. 5. As of December 15, 2009, the criteria for a rating of 100 percent for cirrhosis have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.21, 4.114, DC 7312. 6. As of December 15, 2009, the criteria for special monthly compensation at the housebound rate have been met. 38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Preliminary Matters The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the appellant and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Further, neither the appellant nor her representative has alleged any deficiency with respect to VA's duties to notify or assist. See Scott, supra (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). II. Analysis Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In general, it is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Separate ratings for distinct periods of time, based on the facts are for consideration. Hart v. Mansfield, 21 Vet. App. 505 (2007). The appeal period before the Board begins on January 10, 2006, the date VA received the Veteran's claim for an increased rating, plus the one-year look-back period. 38 C.F.R. § 3.400(o)(2); see also Gatson v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). Hepatitis C The Veteran's hepatitis C has been evaluated as 50 disabling pursuant to DC 7345-7312 from the January 10, 2006, date of claim (in combination with cirrhosis) through January 3, 2007, and as 40 percent disabling pursuant to DC 7354 (with a separate rating for cirrhosis) as of January 4, 2007, the date of receipt of his notice of disagreement. 38 C.F.R. § 4.114, DCs 7345-7312, 7354. As an initial matter, the Board finds that DCs 7345 and 7312 do not apply to the Veteran's hepatitis C throughout the pendency of the appeal. Specifically, DC 7345 applies to "chronic liver disease without cirrhosis." Moreover, it specifically excludes hepatitis C. As the March 2006 VA examiner found that "the Veteran has hepatitis C chronic and the cirrhosis of liver," DC 7345 does not apply throughout the pendency of this appeal. Further, DC 7312 does not apply to the Veteran's claim for an increased rating for hepatitis C because it applies to cirrhosis of the liver, which is evaluated below. The Veteran's hepatitis C is evaluated under DC 7354, which is specific to that disorder. In Copeland v. McDonald, 27 Vet. App. 333, 338 (2015), the United States Court of Appeals for Veterans Claims (Court) held that when a condition is specifically listed in the rating schedule, it may not be rated by analogy. See also Suttmann v. Brown, 5 Vet. App. 127, 134 (1993) (providing that "[a]n analogous rating . . . may be assigned only where the service-connected condition is 'unlisted.'"). In the instant case, DC 7354 specifically addresses hepatitis C and the resulting symptomatology. Therefore, the Board will proceed with the evaluation of the Veteran's hepatitis C under DC 7354. Under DC 7354, a noncompensable rating applies where hepatitis C is nonsymptomatic. A 10 percent rating applies where hepatitis C results in 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 applies where hepatitis C results in daily fatigue, malaise, and anorexia (without weight loss or hepatomegaly), requiring dietary restriction or continuous medication, 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 two weeks, but less than four weeks, during the past 12-month period. A 40 percent rating applies where hepatitis C results in daily fatigue, malaise, and anorexia, with minor weight loss 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 four weeks, but less than six weeks, during the past 12-month period. A 60 percent rating applies where hepatitis C results in 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 applies where hepatitis C results in near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). Note (1) to DC 7354 directs that sequelae, such as cirrhosis or malignancy of the liver, should be evaluated under an appropriate DC, but the same signs and symptoms should not be used as the basis for evaluation under DC 7354 and under a DC for sequelae. Note (2) to DC 7354 provides that, for purposes of evaluating conditions under DC 7354, "incapacitating episode" means a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician. In March 2006, the VA examiner found that the Veteran's hepatitis C manifested with fatigue and malaise, but without nausea, vomiting, anorexia, arthralgia, right upper quadrant or abdominal pain, weight loss, or hepatomegaly. The Veteran reported resting for 10 to 14 hours per day, but did not report experiencing incapacitating episodes. In September 2013, the Veteran testified that he experiences weight loss, nausea, malaise, fatigue, vomiting, upper right quadrant problems, and painful stents in the liver. (p. 3.) He further reported that he has fatigue and malaise all the time, and weight loss. (pp. 11-13.) The Veteran indicated that his symptoms were so painful that he sometimes could not get out of bed, and such results in his resting in bed or on a couch for 24 hours approximately once a week. (pp. 12-13.) However, as the evidence does not show, and the Veteran did not testify, that his symptoms were severe enough to require bed rest and treatment by a physician, they do not qualify as incapacitating episodes under DC 7354, Note 2. In February 2014 and March 2014, a VA examiner found that the Veteran had daily fatigue, malaise, and right upper-quadrant pain; intermittent anorexia and nausea; and hepatomegaly. The Veteran denied having any incapacitating episodes due to his liver conditions during the past 12 months. Affording the benefit of the doubt to the Veteran, the Board finds that his hepatitis C warrants a 10 percent rating under DC 7354 from January 10, 2006-the date of claim-through January 3, 2007. The sole examination during that period, dated March 2006, includes findings of fatigue and malaise, but not anorexia or hepatomegaly. As a noncompensable rating applies where the condition is nonsymptomatic, and as the Veteran had symptoms of fatigue and malaise, the Board finds that a 10 percent rating, but no higher, is warranted. The Board further finds that a rating in excess of 40 percent is not warranted as of January 4, 2007. Specifically, the Veteran had intermittent, but not daily, anorexia, and he did not have incapacitating episodes. Consequently, a rating in excess of 40 percent is not warranted. Furthermore, at no time during the appeal period has the Veteran been found to have daily anorexia, incapacitating episodes requiring bed rest and treatment by a physician, or near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). Cirrhosis The Veteran's cirrhosis has been evaluated as 50 disabling pursuant to DC 7345-7312 from the January 10, 2006, date of claim (in combination with hepatitis C) through January 3, 2007, and as 70 percent disabling pursuant to DC 7312 (with a separate rating for hepatitis C) as of January 4, 2007, the date of receipt of his notice of disagreement. 38 C.F.R. § 4.114, DCs 7345-7312, 7312. As an initial matter, the Board finds that DC 7345 does not apply to the Veteran's cirrhosis throughout the pendency of the appeal. Specifically, DC 7345 applies to "chronic liver disease without cirrhosis." As the March 2006 VA examiner found that "the Veteran has...cirrhosis of liver," DC 7345 is inapplicable. The diagnostic code for the Veteran's cirrhosis is DC 7312, which applies to that disorder. Copeland, supra; Suttmann, supra. Under DC 7312, a 10 percent rating applies where there are symptoms such as weakness, anorexia, abdominal pain, and malaise. A 30 percent rating applies where there is portal hypertension and splenomegaly, with weakness, anorexia, abdominal pain, malaise, and at least minor weight loss. A 50 percent rating applies where there is a history of one episode of ascites, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy (erosive gastritis). A 70 percent rating applies where there is a history of two or more episodes of ascites, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy (erosive gastritis), but with periods of remission between attacks. A 100 percent rating applies where 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). For purposes of evaluating conditions under diagnostic code 7312, "documentation of cirrhosis (by biopsy or imaging) and abnormal liver function tests must be present." 38 C.F.R. § 4.114, DC 7312, Note. In March 2006, the VA examiner found that the Veteran's cirrhosis of the liver included portal hypertension and variceal upper gastrointestinal bleeding. Significantly, the examiner did not evaluate the Veteran for all of the symptoms listed in DC 7312. A May 2006 treatment record from Dr. Daniels confirms that the Veteran's cirrhosis manifested with ascites and massive gastrointestinal bleed from gastric varices. Dr. Daniels also found that he had undergone treatment in the form of a Transjugular Intrahepatic Portosystemic Shunt (TIPS) procedure, and "has done well post-operatively." Consistent therewith, the Veteran reported in January 2007 that he has been diagnosed with ascites, hepatic encephalopathy, and upper GI rupture (hemorrhage). As the Veteran's symptoms were consistent with the requirements for a 70 percent rating prior to January 3, 2007, and as there is no affirmative evidence to the contrary, the Board finds that his 70 percent rating under DC 7312 is warranted as of the January 10, 2006, date of claim. However, from such date to December 14, 2009, as the Veteran's cirrhosis did not result in generalized weakness, substantial weight loss, and persistent jaundice, or; with one of the following refractory (unresponsive) to treatment: ascites, hepatic encephalopathy, hemorrhage from varices or portal gastropathy (erosive gastritis), a rating in excess of 70 percent for such time period is not warranted. On December 15, 2009, the Veteran submitted a form from Dr. Daniels wherein he placed checkmarks next to every symptom listed at all five levels of disability under DC 7312. In September 2013, the Veteran testified that he has had hemorrhaging in the liver. (pp. 5-6.) He further testified that he has had hepatic encephalopathy. (pp. 7-9.) In February 2014 and March 2014, the VA examiner found that the Veteran had ascites (most recently in 2012), hepatic encephalopathy (most recently in 2005), hemorrhage from varices or portal gastropathy (most recently in 2006), portal hypertension, and splenomegaly. The examiner did not state whether these were refractory (unresponsive) to treatment. The Board finds that a 100 percent rating for hepatitis C is warranted as of December 15, 2009, the date of Dr. Daniels' finding that the criteria for a 100 percent rating were met, as no evidence to the contrary is of record. Other Considerations In assessing the severity of the Veteran's hepatitis C and cirrhosis of the liver, the Board has considered the Veteran's assertions regarding his symptoms, to include his January 2007 statement, his September 2009 substantive appeal, and his September 2013 hearing testimony. Moreover, the competent medical evidence offering detailed specific findings pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms of hepatitis C and cirrhosis of the liver. As such, while the Board accepts the Veteran's statement with regard to the matters he is competent to address, the Board relies upon the competent medical evidence with regard to the specialized evaluation of functional impairment, symptom severity, and details of clinical features of the service-connected hepatitis C and cirrhosis of the liver. The Board has considered whether additional staged ratings are appropriate for the Veteran's service-connected hepatitis C and cirrhosis of the liver. See Hart, supra. However, the Board finds that his symptomatology has been stable throughout each appeal period listed above; therefore, the assignment of further staged ratings for such disabilities is not warranted. The Board notes that the Veteran asserted in his September 2009 substantive appeal that extra-schedular consideration pursuant to 38 C.F.R. § 3.321 is warranted due to hypertension, thrombocytopenia, Methicillin-resistant Staphylococcus aureus (MRSA) infection due to hospitalization, chronic pulmonary distress (emphysema), constant pain from an inoperable umbilical hernia, pneumonia, shortness of breath, upper gastrointestinal rupture, and varicele bleeding with splenic artery embolization infarction. However, for those conditions that are not symptoms covered by the rating criteria, the Board finds that these are distinct disorders for which the Veteran would have had to establish separate claims for service connection. Said another way, such claimed conditions are separate disorders rather than symptoms of hepatitis C or cirrhosis. Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). With respect to special monthly compensation (SMC), the Board observes that the Veteran was already in receipt of SMC at the housebound rate as of August 31, 2012, for hepatocellular carcinoma claimed as liver neoplasm rated 100 percent, and additional service-connected disabilities including posttraumatic stress disorder (PTSD) and Reiter's syndrome, independently ratable at 60 percent or more. 38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i). With the assignment of a 100 percent rating for cirrhosis effective as of December 15, 2009, granted herein, and with additional service-connected disabilities including PTSD and Reiter's syndrome being independently ratable at 60 percent or more prior to that date, the Board finds that SMC at the housebound rate is warranted as of December 15, 2009. 38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record); Rice v. Shinseki, 22 Vet. App. 447 (2009). To the extent that the Board herein denies higher ratings during each period on appeal for the Veteran's hepatitis C and cirrhosis of the liver, the preponderance of the evidence is against such an award. Therefore, the benefit of the doubt doctrine is not applicable in such regard, and higher ratings are not warranted. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. ORDER From January 10, 2006 to January 3, 2007, a rating of 10 percent, but no higher, for hepatitis C is granted, subject to the law and regulations governing payment of monetary benefits. As of January 4, 2007, a rating in excess of 40 percent for hepatitis C is denied. From January 10, 2006 to January 3, 2007, a rating of 70 percent, but no higher, for cirrhosis is granted, subject to the law and regulations governing payment of monetary benefits. From January 4, 2007 to December 14, 2009, a rating in excess of 70 percent for cirrhosis is denied. As of December 15, 2009, a rating of 100 percent for cirrhosis is granted, subject to the law and regulations governing payment of monetary benefits. As of December 15, 2009, special monthly compensation at the housebound rate is granted, subject to the law and regulations governing payment of monetary benefits. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs