Citation Nr: 1754868	
Decision Date: 11/30/17    Archive Date: 12/07/17

DOCKET NO.  15-46 432	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey


THE ISSUES

1.  Entitlement to service connection for hypertension, to include as secondary to service-connected disabilities.

2.  Entitlement to a compensable evaluation for hepatitis C from November 17, 2005, to November 16, 2007.

3.  Entitlement to an evaluation in excess of 20 percent for diabetes mellitus.

4.  Entitlement to a total disability rating based upon individual unemployability (TDIU) from November 17, 2005, to August 23, 2011.


REPRESENTATION

Appellant represented by:	Virginia Girard-Brady, Attorney



ATTORNEY FOR THE BOARD

H. Fisher, Associate Counsel


INTRODUCTION

The Veteran had honorable active duty service with the United States Army from March 1970 to January 1972.  The Veteran received the Vietnam Service Medal, with service in the republic of Vietnam from January 1971 to January 1972.  

These matters are before the Board of Veterans' Appeals (Board) on appeal from March 2015 and November 2015 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey.  In May 2013, the Board granted entitlement to service connection for hepatitis C.  In May 2013, the RO granted entitlement to service connection for diabetes mellitus and assigned a 20 percent evaluation.  In May 2014, a Notice of Disagreement was filed with respect to the diabetes mellitus.  In December 2014, the RO denied entitlement to service connection for cirrhosis of the liver, Barrett's esophagus, hypertension, a thyroid condition, hepatitis C, and TDIU.  The RO subsequently granted a 20 percent evaluation for hepatitis C effective March 17, 2003.  A Notice of Disagreement as to the December 2014 rating decision was filed in March 2015.  

In November 2015, the RO increased the evaluation to 60 percent for hepatitis C effective March 17, 2003; granted service connection for hepatocellular carcinoma, cirrhosis of the liver, a liver transplant, Barrett's esophagus, hypothyroidism, recurrence of hepatitis C status post-liver transplant, pruritus, depression; and granted entitlement to TDIU from March 17, 2003 to November 17, 2005, and then beginning against August 23, 2011.  Concurrently, the RO issued Statements of the Case regarding entitlement to service connection for hypertension, an increased evaluation for hepatitis C, and entitlement to TDIU from November 17, 2005, to August 23, 2011.

In December 2015, the Veteran's attorney submitted a Substantive Appeal on his behalf.  His attorney concurrently submitted three statements.  The first specifically contended that the Veteran was entitlement to an evaluation in excess of 20 percent for diabetes mellitus.  The second contended that the Veteran was entitled to a compensable evaluation for hepatitis C following November 17, 2005.  The third contended that the Veteran was entitled to service connection for hypertension, to include as secondary to his service-connected hepatitis C, and entitled to TDIU prior to August 23, 2011.  The Board reads the private attorney's statements as specifically appealing the following issues to the Board: entitlement to service connection for hypertension, entitlement to an evaluation in excess of 20 percent for diabetes mellitus, entitlement to a compensable evaluation from November 17, 2005 to November 16, 2007, and entitlement to TDIU from November 17, 2005 to August 23, 2011.

In June 2016, the Veteran's representative submitted a statement on behalf of the Veteran withdrawing his appeal for an increased evaluation for diabetes mellitus.

The issues of entitlement to service connection for hypertension and entitlement to TDIU from November 17, 2005, to August 23, 2011, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDINGS OF FACT

1.  On June 1, 2016, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran's representative that he wanted to withdraw his claim for entitlement to an evaluation in excess of 20 percent for diabetes mellitus.

2.  The Veteran has been awarded a 100 percent schedular evaluation for a liver transplant for the entire period on appeal.

3.  Through the period on appeal, the Veteran had a single disability rated as 100 percent disabling, but he has no other disability rated at 60 percent, nor was he substantially confined to his dwelling by his service-connected disabilities based upon the evidence of record.


CONCLUSIONS OF LAW

1.  The criteria for withdrawal have been met, and the appeal regarding an increased evaluation for diabetes mellitus is dismissed.  38 U.S.C.A. § 7105 (b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2017).

2.  The criteria for an initial evaluation for service-connected hepatitis C in excess of 20 percent from January 22, 2015, have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.114, Diagnostic Codes 7351-7354 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  VCAA Notice

VA has completed the necessary steps in order to meet its duties to notify and assist in this case.  The Veteran has not raised any procedural arguments regarding the notice or assistance provided.  Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  

II.  Withdrawal

Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific errors of fact or law in the determination being appealed.  A Substantive Appeal may be withdrawn on record at a hearing or in writing at any time before the Board promulgates a decision.  38 C.F.R. § 20.204.  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204.

In June 2016, the Veteran's representative submitted a statement indicating that he did not intend to appeal the issue of his evaluation for diabetes mellitus.  As such, there remain no allegations of errors of fact or law for appellate consideration on this issue.  Accordingly, the Board does not have jurisdiction to review the appeal regarding the Veteran's evaluation of diabetes mellitus, and it is dismissed.

III.  Increased Evaluations

The Veteran contends that he is entitled to a compensable evaluation for hepatitis C from November 2005 to November 2007.

Disability ratings are determined by application of a ratings schedule which is based, as far as can practically be determined, on the average impairment of earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes.  38 C.F.R. § 4.27 (2017).  The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability.  38 C.F.R. § 4.1.  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran.  38 C.F.R. § 4.3.  However, pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran's service-connected disability.  38 C.F.R. § 4.14; see Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the veteran.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence.  Layno v. Brown, 6 Vet. App. 465, 469 (1994).

Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno, 6 Vet. App. at 465.  Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 C.F.R. § 3.159; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record.  Indeed the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal.

The Veteran was initially rated for the original hepatitis C infection under Diagnostic Code 7354.  However, once the Veteran underwent a liver transplant, the RO evaluated his hepatitis C as recurrent, status post-liver transplant, under Diagnostic Codes 7351-7354.  38 C.F.R. § 4.114.  Hyphenated Diagnostic Codes are used when a rating under one code requires the use of an additional code to identify the basis for the evaluation assigned.  The additional Diagnostic Code is shown after the hyphen.  In this case, once the Veteran underwent a liver transplant, his hepatitis C was more accurately reflected by categorizing it as status post-transplant.  Diagnostic Code 7351 applies to liver transplants, providing a 100 percent evaluation for an indefinite period from the date of hospital admission for transplant surgery.  A rating of 100 percent shall be assigned as of the date of hospital admission for transplant surgery and shall continue. One year following discharge, the appropriate disability rating shall be determined by mandatory VA examination.  The minimum evaluation is 30 percent.  

Under Diagnostic Code 7354, which evaluates hepatitis C, a 20 percent rating is warranted if the disease is productive of 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.  38 C.F.R. § 4.114, Diagnostic Code 7354.

A 40 percent evaluation is in order in cases of daily fatigue, malaise, and anorexia, accompanied by 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 twelve-month period.  Id.

A 60 percent rating requires 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 twelve-month period, but not occurring constantly.  Id.

A 100 percent rating requires 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.  Id.

Following the criteria, Note (1) indicates that sequelae, such as cirrhosis or malignancy of the liver, are to be evaluated under an appropriate diagnostic code, but should not be based on the same signs and symptoms as the basis for evaluation under Diagnostic Code 7354.  Id.  In addition, Note (2) provides that, for purposes of evaluating conditions under Diagnostic Code 7354, an "incapacitating episode" means a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician.  Id.  

In this case, the claim of entitlement to a compensable evaluation for hepatitis C from November 2005 to November 2007 has been rendered moot by the award of a 100 percent schedular evaluation for a liver transplant.  See Bradley v. Peake, 22 Vet. App. 280 (2008).

The Veteran was rated at 60 percent for hepatitis C until his liver transplant in November 2005.  From November 2005 to November 2007, the Veteran was rated at 100 percent for the liver transplant and its residuals.  Thereafter, the Veteran was rated at 60 percent for recurrent hepatitis C, status post-liver transplant.  The transplant and its residuals, which are substantially similar to the compensable symptoms of hepatitis C, have warranted the maximum schedular rating for a disability over a two year period.  As the Veteran's transplant was caused by his hepatitis C, the 100 percent evaluation for the liver transplant and its residuals during this period of time encompasses residuals of hepatitis C.  Once the Veteran recovered from the liver transplant after two years, his evaluation for hepatitis C resumed under Diagnostic Codes 7351-7354 to reflect hepatitis C status post-liver transplant.  Another evaluation for hepatitis C between November 2005 to November 2007 would constitute impermissible pyramiding.  See 38 C.F.R. § 4.14.

Furthermore, the United States Court of Appeals for Veterans Claims (Court) has recognized that a 100 percent rating under the Schedule for Rating Disabilities means that a Veteran is totally disabled.  Holland v. Brown, 6 Vet. App. 443, 446 (1994), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990).  Thus, if VA has found a Veteran to be totally disabled as a result of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that Veteran totally disabled on any other basis.  See, e.g., Herlehy v. Principi, 15 Vet. App. 33, 35 (2001). 

However, a grant of a 100 percent disability does not always render another evaluation moot.  VA's duty to maximize a claimant's benefits includes consideration of whether his disabilities establishes entitlement to SMC under 38 U.S.C.A. § 1114.  See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). 

SMC is payable at a specified rate if a veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of both feet, or of one hand and one foot; or is blind in both eyes, with visual acuity of 5/200 or less; or is permanently bedridden or so helpless as to be in need of regular aid and attendance.  38 U.S.C.A. § 1114(l) (West 2014); 38 C.F.R. § 3.350(b).  As evidence of record does not support any of these conditions, SMC under 38 U.S.C.A. § 1114(l) is inapplicable.

SMC may also be provided under 38 U.S.C.A. § 1114(s) when the Veteran has a single service-connected disability rated as 100 percent, and (1) has additional service-connected disability or disabilities independently rated as 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities.  This requirement is met when the Veteran is substantially confined as a result of service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime.  See 38 C.F.R. § 3.350(h)(3)(i)(1) & (2). 

Despite the Veteran's 100 percent evaluation for a liver transplant between November 2005 and 2007, he did not have another service-connected disability rated at 60 percent or more for the purposes of SMC.  There is also no indication in the evidence of record that the Veteran is "substantially confined" to his dwelling or its immediate premises because of his disabilities.  As such, the criteria for an award of SMC have not been met. 

Based upon the evidence of record, the Veteran's claim of entitlement to a compensable evaluation from November 2005 to November 2007 is moot.  Other than the total rating granted for the liver transplant, the Veteran's other service-connected disabilities do not rise to the level of 60 percent; thus, the potential for SMC discussed in Bradley and Buie does not apply. 

As there remains no case or controversy concerning whether the Veteran is entitled to the benefits sought, the appeal of the claim for a compensable evaluation for hepatitis C from November 17, 2005, to November 16, 2007, is moot and must be dismissed.  Sabonis v. Brown, 6 Vet. App. 426 (1994).


ORDER

1.  The appeal regarding the evaluation for diabetes mellitus is dismissed.

2.  Entitlement to a compensable evaluation for hepatitis C from November 17, 2005, to November 16, 2007, is moot, and is therefore dismissed.


REMAND

Remand is necessary to adjudicate the remaining issues on appeal.  

The Veteran contends that he is entitled to service connection for hypertension, to include as secondary to service-connected hepatitis C.  The July 2015 VA examination only addresses a possible nexus between hypertension and hepatitis C, and neglects direct service connection, as well as secondary service connection with respect to the Veteran's other service-connected disabilities.  While the Veteran contended that his hypertension was secondary to his service-connected hepatitis C, the Veteran is not expected to possess adequate medical knowledge to properly assert secondary service connection due to a particular service-connected disability.  Instead, the Veteran raised the theory of secondary service connection, and all theories of entitlement to service connection must be fully developed for adjudication.  

The Veteran's claim of entitlement to TDIU from November 17, 2005, to August 23, 2011, is inextricably intertwined with the adjudication of the claim of entitlement to service connection for hypertension and must be readjudicated on remand.

Accordingly, the case is REMANDED for the following action:

1.  The RO should ask the Veteran to identify any and all outstanding medical and/or treatment records related to his hepatitis C and hypertension.  The RO should then make all reasonable efforts to obtain all outstanding medical and/or treatment records related to the Veteran's hypertension and in connection with his liver transplant beginning November 2005, to include post-operative reports, and follow up treatment records that are not already associated with the claims file.  If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e).  All obtained records should be associated with the claims file.

2.  Request that the Veteran provide supplementary evidence regarding the functional impairment of his service-connected disabilities from November 2005 to August 2011, to include lay statements regarding limitations. 

3.  Following the completion of the foregoing, schedule the Veteran for a VA examination to determine the current nature and etiology of his hypertension.  The examiner should review the entire claims file.  The examiner should advance an opinion as to the following:

(a).  Is it at least as likely as not (i.e. a probability of 50 percent or more) that the Veteran's hypertension had its onset during active service or within one year of separation from service, or, otherwise resulted from active military service;  

(b).  Otherwise, is it at least as likely as not (i.e. a probability of 50 percent or more) that the Veteran's hypertension was either caused by or aggravated by a service-connected disability?

The examination report should specifically state that a review of the record was conducted.  The examiner should provide a complete rationale for all opinions provided.  If an opinion cannot be provided without to resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion.  

4.  Following completion of the foregoing, the AOJ should review the record and readjudicate the claims on appeal.  If any remain denied, the AOJ should issue an appropriate supplemental SOC, afford the Veteran and his representative an opportunity to respond, and return the case to the Board.











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The appellant has the right to submit additional evidence and argument on the matter or matters 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 of Veterans' Appeals 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 2014).




______________________________________________
B. MULLINS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs