Citation Nr: 18157229 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 18-20 062 DATE: December 12, 2018 ORDER Entitlement to an effective date prior to January 11, 2011 for service connection for chronic steatohepatitis with hepatic fibrosis and diverticulitis with residuals of cholecystectomy is denied. REMANDED Entitlement to a disability evaluation in excess of 40 percent for chronic steatohepatitis with hepatic fibrosis and diverticulitis with residuals of cholecystectomy is remanded. FINDING OF FACT The criteria for an effective date prior to January 11, 2011, for the award of service connection for chronic steatohepatitis with hepatic fibrosis and diverticulitis with residuals of cholecystectomy, are not met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400, 3.816 (2017). CONCLUSION OF LAW The criteria for an effective date prior to January 11, 2011, for the award of service connection for chronic steatohepatitis with hepatic fibrosis and diverticulitis with residuals of cholecystectomy, are not met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400, 3.816 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Air Force from October 1982 to April 2005. Board decisions must be based on the entire record, with consideration of all the evidence. 38 U.S.C. § 7104. The law requires only that the Board address its reasons for rejecting evidence favorable to the veteran. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record. While the Veteran is competent to report (1) symptoms observable to a layperson; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, he is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Because there is no universal rule as to competence, the Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person to provide an opinion as to etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011). Contemporaneous records can be more probative than history as reported by a veteran. See Curry v. Brown, 7 Vet. App. 59, 68 (1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107 (a)(2). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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 a duty to assist argument). 1. Entitlement to an effective date prior to January 11, 2011, for service connection for chronic steatohepatitis with hepatic fibrosis The Veteran claims entitlement to an earlier effective date for the grant of service connection and assignment of a 40 percent disability rating for chronic steatohepatitis with hepatic fibrosis and residuals of cholecystectomy. A February 2016 rating decision granted service connection and assigned effective date of January 11, 2011, the date the Veteran’s claim was received. The effective date of an evaluation and award of compensation on an original claim for compensation will be the day following separation from the active duty service or the date entitlement arose, if the claim is received within one year after separation from the military service. Otherwise, the effective date will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2). At present, the Veteran’s claim for service connection for chronic steatohepatitis with hepatic fibrosis and residuals of cholecystectomy was received by VA on January 11, 2011. The evidence does not show that he filed and VA received a formal or informal claim for service connection for chronic steatohepatitis with hepatic fibrosis and residuals of cholecystectomy prior to January 11, 2011. The Board acknowledges the Veteran’s contention that this disability began during his active service. However, even granting the Veteran the benefit of the doubt regarding when the disability began, the VA did not receive a claim for service connection for the disability until January 11, 2011. The Board is bound by law on this matter, and is without authority to grant the benefit sought on an equitable basis. As no statutory or regulatory exceptions to the rule governing the effective date here is for application, there is no legal basis to grant the appeal. As this appeal must be denied as a matter of law, the benefit of the doubt rule is not for application. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). REASONS FOR REMAND 1. Entitlement to a disability evaluation in excess of 40 percent for chronic steatohepatitis with hepatic fibrosis and diverticulitis with residuals of cholecystectomy is remanded. The Veteran claims entitlement to a disability rating in excess of 40 percent for chronic steatohepatitis with hepatic fibrosis and diverticulitis with residuals of cholecystectomy. The Veteran’s chronic steatohepatitis with hepatic fibrosis and diverticulitis with residuals of cholecystectomy is evaluated under Diagnostic Code 7354. 38 C.F.R. § 4.114. In accordance with Diagnostic Code 7354, a 40 percent disability rating is assigned for 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. Id. A 60 percent rating is warranted for 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. Id. At present, the Veteran’s most recent VA examination for hepatitis, cirrhosis, and liver conditions was completed in February 2016, nearly three years ago. The Veteran’s August 2018 appellate brief argues that he is entitled to a disability rating in excess of 40 percent due to incapacitating episodes and substantial weight loss. The Veteran’s March 2018 VA Form 9, Appeal to the Board of Veterans’ Appeals, indicates that the Veteran’s disability is systemic and continues to affect the Veteran in new and increasing ways on a daily basis. Review of the Veteran’s private medical records indicates that since the Veteran’s February 2016 examination, he is now being treated for chronic diarrhea, nausea and vomiting, a bile duct abnormality, and persistent proteinuria. The Veteran’s medical records also contain complaints of and treatment for weight loss. The Board finds that the record contains evidence that the Veteran’s disability may have worsened since his most recent VA examination. VA is required to conduct an accurate and descriptive medical examination based on the complete medical record. 38 C.F.R. §§ 4.1, 4.2; Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Additionally, the United States Court of Appeals for Veteran’s Claims (Court) has held that it is within VA’s duty to assist to afford the Veteran a new VA examination in order to accurately assess the current level of impairment when there is evidence that the claimed disability has worsened. Snuffer v. Gober, 10 Vet. App. 400, 402-03 (1997). The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA hepatitis, cirrhosis, and liver conditions examination to assess the current severity of his service-connected chronic steatohepatitis with hepatic fibrosis and diverticulitis with residuals of cholecystectomy. Any indicated diagnostic tests and studies must be accomplished and all pertinent symptomatology and findings should be reported in detail. A complete rationale for all opinions expressed should also be provided. ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Riordan, Associate Counsel