Citation Nr: 1808989	
Decision Date: 02/12/18    Archive Date: 02/23/18

DOCKET NO.  10-19 778	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to a compensable rating for chronic proteinuria. 

2.  Entitlement to an increased rating for hepatitis C, currently assigned a 20 percent rating.

3.  Entitlement to service connection for a psychiatric disability to include posttraumatic stress disorder (PTSD) including as secondary to service-connected disability.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

J. Connolly, Counsel


INTRODUCTION

The Veteran had active service from September 1979 to March 1989.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the VA Regional Office (RO) in New York, New York. 

The case was remanded by the Board in January 2015.  While the issue of whether the Veteran is competent VA purposes was also remanded, that matter was resolved in the Veteran's favor in July 2017.

The issue of service connection for a psychiatric disability to include PTSD including as secondary to service-connected disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The Veteran's proteinuria is asymptomatic and his laboratory findings repeatedly show no protein in the urine.  

2. The Veteran's hepatitis C causes daily fatigue and malaise, but not anorexia, with minor weight loss and hepatomegaly; or incapacitating having a total duration of at least four weeks, but less than six weeks, during the past 12-month period.  


CONCLUSIONS OF LAW

1.  The criteria for a compensable rating for proteinuria have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.115a, 4.115b, Diagnostic Code 7502 (2017).

2.  The criteria for a rating in excess of 20 percent for hepatitis C have not been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.114, Diagnostic Code 7354 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA) 

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  38 C.F.R. § 3.159.  Here, the Veteran was provided with the relevant notice and information.  Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II).  VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim and all appropriate development was undertaken in this case.  38 C.F.R. § 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010).  The Veteran has not alleged any notice or development deficiency during the adjudication of the claim.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009).  

Ratings

Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity.  38 U.S.C. § 1155; 38 C.F.R. Part 4.  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.  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.  See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).

In deciding the Veteran's increased evaluation claims, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 22 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period.  In Fenderson, the Court held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder.  In that decision, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period.  Id. at 126.  Hart appears to extend Fenderson to all increased rating claims.

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25.  However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed.  See 38 C.F.R. § 4.14.  A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity."  Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C. § 1155).  This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14.  However, if a veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes.  See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993).

In conjunction with the increased rating claims, the Veteran has been examined several times.  

The Veteran was examined a VA examination in December 2009.  At that time, the Veteran reported that he had periods of incapacitating episodes described as marked fatigue and generalized weakness with severe right upper quadrant pain which required bedrest by a physician.  The Veteran reported that he had to take naps for a couple of hours over the past several months with daily weakness, malaise, and abdominal pain, but no weight changes.  Physical examination revealed no liver symptoms.  Urinalysis revealed no protein (consistent with a November 2009 test which also showed no protein).  The Veteran had a chronic mild transaminitis, but normal albumin and bilirubin.  The diagnosis was hepatitis C.  That same month, the Veteran also attended a hepatitis C education class,

In October 2015, the Veteran was afforded a VA examination.  It was noted that the Veteran had current symptoms consisting of daily fatigue, intermittent right upper quadrant pain, but no incapacitating episodes.  The examiner indicated that the Veteran had signs or symptoms attributable to cirrhosis of the liver, biliary cirrhosis or cirrhotic phase of sclerosing cholangitis consisting of daily weakness.  The Veteran was not a liver transplant candidate, had not received a liver transplant, and had not sustained liver injury.  The Veteran had mildly elevated LFT's without hepatomegaly.  He had minimal fibrosis per fibroscan.  Given the early fibrosis, the examiner indicated that antiviral treatment was not urgent.  The examiner stated that in view of his psychiatric history, the Veteran should definitely should be treated with interferon-free therapy, which was not currently available, but was likely to be available later.  It was noted that the Veteran needed to quit smoking marijuana and the hazardous effects of cannabis on the HCV-infected liver were discussed.  It was also noted that the Veteran had to be free of all drugs and alcohol before antiviral therapy could be considered.  There was no impact on the Veteran's ability to work.  In January 2016, the Veteran was afforded another liver examination.  At that time, he had daily fatigue and nausea with intermittent vomiting.  He did not have signs or symptoms attributable to cirrhosis of the liver, biliary cirrhosis or cirrhotic phase of sclerosing cholangitis.  It was noted that 2010 imaging studies revealed findings consistent with chronic parenchymal liver disease.  There was a normal biliary system and spleen.  Current testing revealed AST of 81 and ALT of 90.  There had not been any liver biopsies.  There was no effect on work.  The examiner indicated that the Veteran had chronic hepatitis C.  

In October 2015, the Veteran was afforded a kidney examination.  At that time, it was noted that the Veteran was diagnosed with proteinuria in the military.  The cause was never found at the time but was postulated to perhaps be due to an "analgesic" proteinuria.  Currently, his urinalysis was normal.  There was no renal dysfunction as shown by persistent proteinuria, hematuria, or GFR <60 cc/min/1.73m2.  The Veteran did not have at any time, kidney, ureteral or bladder calculi (urolithiasis).  The Veteran did not have urinary tract/kidney infection or removal of a kidney or kidney transplant or tumor.  The examiner concluded that the Veteran had transient proteinuria in the service.  Currently, there did not appear to be any renal pathology and urinalysis showed no proteinuria at that time.  In January 2016, he was afforded another examination.  The clinical findings were the same as on the prior examination.  The examiner stated that she had reviewed the Veteran's previous urinalyses dating back to the service as well as after starting treatment with VA, and it appeared that there had been transient and intermittent bouts of proteinuria throughout the years, but in the past couple years, the urinalyses had been negative for proteinuria, the most recent of which was in November 2016.  It appeared that the Veteran did not have a chronic condition causing the proteinuria, but perhaps previous elevations were due to factors including alcohol use or prior drug abuse.

With regard to proteinuria, this condition is rated under Diagnostic Code 7502 (chronic nephritis) as renal dysfunction and is presently rated as noncompensable.  In turn, with regard to the rating criteria for renal dysfunction, a 30 percent rating may be assigned when albumin is constant or recurring with hyaline and granular casts or red blood cells; or transient or slight edema or hypertension at least 10 percent disabling under Diagnostic Code 7101.  A 60 percent rating may be assigned for constant albuminuria with some edema; or definite decrease in kidney dysfunction; or, hypertension at least  40 percent disabling under Diagnostic code 7101.  An 80 percent rating may be assigned for persistent edema and albuminuria with BUN 40 to 80mg%; or, creatinine 4 to 8mg%; or lethargy, weakness, anorexia, weight loss, or limitation of exertion.  38 C.F.R. § 4.115a.

The Board notes that during the appeal period, the Veteran's proteinuria has been asymptomatic with laboratory findings showing no protein in the urine.  The Veteran has also not been shown to have compensable hypertension attributable to the kidney/proteinuria.  As such, a higher rating is not warranted.

With regard to hepatitis C, this condition is rated as 20 percent disabling under 38  C.F.R. § 4.114, Diagnostic Code 7354.  Under that code, a 10 percent evaluation is warranted where the condition is productive of 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 evaluation is warranted where there is 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.  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 warrants a 40 percent rating.  A 60 percent evaluation is warranted with 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.  Finally, a 100 percent evaluation is warranted with near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia and right upper quadrant pain). 

An "incapacitating episode" means a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician.  38 C.F.R. § 4.114, Diagnostic Codes 7345 and 7354, Note 2.  At this juncture, while the Veteran has reported that he experienced incapacitating episodes, but incapacitating episodes as defined by VA are not confirmed in the numerous clinical records.  

In this case, consistent with a 20 percent rating, the Veteran has daily fatigue, malaise, as well as other symptoms such as nausea, vomiting, and right upper quadrant pain); however a higher rating requires not only daily fatigue and malaise, but also anorexia, with minor weight loss and hepatomegaly; or incapacitating having a total duration of at least four weeks, but less than six weeks, during the past 12-month period.  The Veteran does not have those additional symptoms.  Accordingly, a higher rating is not warranted.

In determining whether a higher rating is warranted for service-connected disability, VA must determine whether the evidence supports the Veteran's claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  In this case, the preponderance of the evidence is against a compensable rating for proteinuria and against a rating in excess of 20 percent for hepatitis C.  


ORDER

Entitlement to a compensable rating for chronic proteinuria is denied.

Entitlement to an increased rating in excess of 20 percent for hepatitis C is denied.


REMAND

The Veteran's representative has made statements regarding deficiencies with the VA examinations and opinions.  

As previously noted by the Board, the records document that as of the early 1990's, the Veteran was hospitalized for psychiatric problems and was diagnosed with a bipolar disorder in 1993.  Subsequent records noted that the Veteran's psychiatric problems started back in 1989, around the time of the Veteran's marital separation and when he tried to shoot his wife.  In August 2004, the Veteran was afforded a VA examination.   At that time, he reported that he thought his bipolar disorder began during childhood and was present during military service. The examiner opined it was more likely than not that "this" was correct and it was likely that the Veteran's bipolar episodes contributed to his leaving the military and in his marital breakup.  The examiner stated that bipolar disorder tended to begin earlier in life, especially when it was severe.  However, the examiner did not specify if the bipolar disorder did in fact begin prior to service or whether it began during military service.  A September 2011 examination included an opinion that the Veteran's psychiatric disorder was not caused by his service-connected disabilities, but there was no opinion on aggravation.  

On remand, the Veteran was afforded a VA examination in February 2016 which confirmed a diagnosis of Bipolar I Disorder, but not PTSD.  The examiner opined that it is less likely than not that the Bipolar I Disorder was caused by or the result of service and was less likely than not due to, or the result of, or aggravated by a service-connected disability.  The examiner indicated that it appeared that the diagnosis was initially made in 1993.  However, he noted that some notes in the record dated psychiatric problems back to 1989 and that the Veteran had reported manic behavior dating back to 1992.  The examiner indicated that a review of the Veteran's military personnel records indicated a number of very positive and glowing performance reviews recorded near the end of his enlistment in the service and there was no evidence in these personnel reviews of any behavioral or occupational difficulties which would suggest that the reported PTSD (or Bipolar Disorder) symptoms were affecting his functioning.  Such positive comments were found in performance reviews as late as February 1989, a month prior to discharge.  

The Board agrees that further medical clarification is needed.  The VA examiner should determine if the psychiatric symptoms began in 1989 while the Veteran was in service, even if due to marital problems and not specifically due to military experiences.  Also, and as pointed out by the representative, it should be determined if the Veteran had compensable manifestations of a psychosis within a year of service, particularly given the report that he threatened his wife with a gun during that timeframe.  For the sake of being thorough and consistent, the VA examiner should address all of the questions posed in the last remand decision as well as any additional inquiries indicated below.

Accordingly, the case is REMANDED for the following action:

1.  An addendum medical opinion should be obtained from the same examiner who conducted the last VA examination or another examiner, if unavailable.  The examiner should review the record prior to providing an opinion.  

The examiner should provide an opinion as to the following questions:

(a) Is there clear and unmistakable (obvious or manifest) evidence that the Veteran had a psychiatric defect, infirmity, or disorder that preexisted his military service; please identify with specificity any evidence that supports this finding.  The examiner is advised that the determination regarding inception should not be based solely on the Veteran's reported history, but should also include consideration of the clinical records and the known characteristics of any diagnosed psychiatric condition;

(b) If there is clear and unmistakable evidence that the Veteran had a preexisting psychiatric defect, infirmity, or disorder at the time of his service entrance, is there evidence that the Veteran's preexisting psychiatric disorder increased in severity (worsened) in service;

(c) If the preexisting psychiatric defect, infirmity, or disorder increased in severity in service, is there clear and unmistakable (obvious or manifest) evidence that the increase in severity during service was due to the natural progress of the psychiatric disorder; please identify with specificity any evidence that supports this finding;

(d) If the examiner determines that the Veteran did not have a psychiatric defect, infirmity, or disorder that preexisted service, is it at least as likely as not that the a currently diagnosed psychiatric disorder to include bipolar disorder had its onset in, or is otherwise etiologically related, to his military service or was manifest by psychoses in the initial year post-service.  It should be addressed whether the Veteran was exhibiting symptoms in 1989 while the Veteran was in service and concurrent with his marital problems, even if caused by his marital problems.

(e) If the examiner determines that the current diagnosis is PTSD, the examiner should specifically identify the verified stressor(s) which is(are) responsible for PTSD, if diagnosed. 

(f) If the examiner determines that the Veteran's current psychiatric disability, to specifically include bipolar disorder, did not have its onset prior to service, in service, within one year of service, or if he does not have PTSD (or has a diagnosis in addition to PTSD), the examiner should determine whether it is more likely than not, less likely than not, or at least as likely as not, that any current psychiatric disability to specifically include bipolar disorder is proximately due to, or the result of, a service-connected disability.  

The examiner should also provide an opinion as to whether it is more likely than not, less likely than not, or at least as likely as not, that any current psychiatric disability is aggravated (permanently worsened) by a service-connected disability. 

The examiner should provide a complete rationale for all opinions expressed and conclusions reached.  

2.  Review the medical opinion obtained above to ensure that the remand directives have been accomplished.  If all questions posed are not answered or sufficiently answered, the case should be returned to the examiner for completion of the inquiry.  

3.  Readjudicate the claim on appeal in light of all of the evidence of record.  If the issue remains denied, the Veteran should be provided with a supplemental statement of the case as to the issue on appeal, and afforded a reasonable period of time within which to respond thereto.

The Veteran 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).





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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. §§ 5109B, 7112 (2012).




S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs