Citation Nr: 18105799 Decision Date: 05/29/18 Archive Date: 05/29/18 DOCKET NO. 11-11 534 DATE: May 29, 2018 ORDER Reduction in the evaluation for status post liver transplant from 100 percent to 30 percent was proper; the claim is denied. Entitlement to an initial compensable disability rating for service-connected scars, residuals of liver transplant, is denied. REMANDED Entitlement to service connection for hypertension, to include as secondary to exposure to herbicide agents, is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and major depressive disorder (MDD), is remanded. FINDINGS OF FACT 1. Pursuant to VA examination conducted September 29, 2008, the Veteran’s liver transplant caused him no current symptoms and had no impact on his daily activities; and any symptoms that have developed since then have been evaluated and accounted for under a different disability rating. 2. The rating determination reducing the veteran's 100 percent evaluation for status post liver transplant to 30 percent was procedurally and factually proper. 3. The Veteran’s scars, residuals of liver transplant, are not objectively painful, unstable or deep, do not cover an area of 144 square inches (929 sq. cms.) or more, and do not limit the function of the affected body parts. CONCLUSIONS OF LAW 1. The reduction in rating to 30 percent for Hepatitis C status post cirrhosis and liver transplant is proper, and the criteria for the restoration of a 100 percent disability rating are not met. 38 U.S.C. §§ 1155, 5103, 5103A and 5107; 38 C.F.R. §§ 3.105€, 3.159, 3.344, 4.1, 4.2, 4.3, 4.7 and 4.114, Diagnostic Code 7351. 2. The criteria for a compensable disability rating for service-connected scars, residuals of liver transplant, have not been satisfied. 38 U.S.C. §§ 1155, 5103, 5103A and 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7 and 4.118, Diagnostic Code 7801-05. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active military service from February 1969 to February 1971 to include service in the Republic of Vietnam from August 1969 to August 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued in March 2009, April 2009 and August 2009 of the Department of Veterans Affairs (VA) Regional Office (RO). In determining the rating decisions on appeal, and thereby the issues on appeal, the Board notes that it determined that the Veteran’s May 2009 correspondence was a Notice of Disagreement with the March 2009 rating decision’s determination to reduce the 100 percent rating to a 30 percent disability rating for the Veteran’s service-connected liver transplant associated with hepatitis C, chronic liver disease and liver hepatoma (hereafter “liver transplant”), effective September 29, 2008. As to the Veteran’s hearing requests, although he requested Board hearings on his VA Form 9s, he subsequently withdrew all hearing requests. Reduction in Rating for Liver Transplant & Increased Rating for Scars Although the regulatory requirements under 38 C.F.R. § 3.344(a) and (b) apply only to reductions of ratings that have been in effect for five or more years, the Court has held that several general regulations are applicable to all rating reduction cases, regardless of whether the rating at issue has been in effect for five or more years. The Court has stated that certain regulations “impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon review of the entire history of the veteran's disability.” Brown v. Brown, 5 Vet. App. 413, 420. A rating reduction case requires ascertaining “whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations.” Brown, 5 Vet. App. at 421. Thus, in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that improvement reflects an improvement under the ordinary conditions of life and work. Regulations also provide that reexamination disclosing improvement will warrant reduction in the rating. 38 C.F.R. § 3.344(c). Where the reduction in evaluation of a service-connected disability or employability status is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, 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 of record of the contemplated action and furnished detailed reasons therefor, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. Unless otherwise provided in paragraph (i) of this section, 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 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(e). Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Separate diagnostic codes identify the various disabilities. Id. Evaluation of a service-connected disorder requires a review of the veteran’s entire medical history regarding that disorder. 38 C.F.R. §§ 4.1 and 4.2. It is also necessary to evaluate the disability from the point of view of the veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the veteran’s favor, 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to the veteran’s disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 38 U.S.C. § 1154(a) requires that the VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim to disability benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When analyzing lay evidence, the Board should assess the evidence and determine whether the disability claimed is of the type for which lay evidence is competent. See Davidson, 581 F.3d at 1313; Kahana v. Shinseki, 24 Vet. App. 428 (2011). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). 1. Propriety of reduction from 100 percent to 30 percent for service-connected liver transplant In his May 2009 Notice of Disagreement, the Veteran argued that the 100 percent rating for his service-connected liver transplant should be continued because he was under continued medical treatment for this condition and he not been able to recuperate from it. After considering the evidence of record, the Board finds that the reduction was proper. Diagnostic Code 7351 provides that a 100 percent disability rating is warranted for an indefinite period from the date of hospital admission for transplant surgery, and then a minimum 30 disability rating. 38 C.F.R. § 4.118. A Note to Diagnostic Code 7351 provides that the 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. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of §3.105(e) of this chapter. Id. In the present case, the evidence shows the Veteran had his liver transplant on October 31, 2005 and he was awarded a 100 percent disability rating for his liver transplant as of that date in the rating decision issued in March 2009. Initially the Board notes that, because the reduction to 30 percent was done in the rating decision that granted service connection and awarded the initial disability ratings for this disability, the procedural due process provisions of 38 C.F.R. § 3.105(e) are not applicable in this case. Rather, the Board need only consider whether the assignment of a 30 percent disability rating was warranted. The rating criteria require that the 100 percent disability rating for a liver transplant be in effect for at least one year and then, based upon VA examination, such rating may be reduced where deemed appropriate. In the present case, service connection was not established until approximately three years after the Veteran’s liver transplant and was based upon a VA examination conducted on September 29, 2008. This VA examination report clearly shows the Veteran had severe symptoms of liver disease prior to his liver transplant. However, the Veteran denied having any current symptoms of liver disease and reported that he has felt well since his liver transplant. Furthermore, the examiner’s assessment was that the Veteran’s hepatitis C infection diagnosed in 2002 with secondary chronic liver disease and hepatoma were successfully treated by the liver transplant in 2005 and there was no impact on the Veteran’s daily activities because of his liver transplant. Hence, based upon the September 2008 VA examination, the Board finds that the assignment of a 30 percent disability rating under Diagnostic Code 7351 was warranted effective September 29, 2008, the date of the examination. The fact that the Veteran continues to have follow up treatment for his liver transplant is not a factor to be considered. That is to be expected. Rather, what symptoms he continues to have and how they impact his functioning are the primary factors for consideration, and clearly, according to the September 2008 VA examination, the Veteran had no recurrence of symptoms and there were no functional limitations resulting from his liver transplant. However, the appeal period has been quite long since the Veteran’s Notice of Disagreement was received in May 2009, and the Board acknowledges that, since then, there is evidence to show the Veteran has reported a recurrence of symptoms of weakness, fatigue and right upper quadrant pain related to his service-connected liver disabilities. See VA examination reports from February 2013, May 2014 and January 2016. However, the RO has adjudicated these complaints separately from the claim on appeal and, in fact, awarded a 20 percent disability rating for hepatitis C effective October 17, 2012 in an August 2013 rating decision. Thus, the Board finds the Veteran is being compensated for those symptoms and it cannot consider them in conjunction with the present claim without resorting to impermissible pyramiding. See 38 C.F.R. § 4.14. 2. Entitlement to an initial compensable disability rating for service-connected scars, residuals of liver transplant In the Veteran’s May 2009 Notice of Disagreement, he also claimed service connection for the scars resulting from his liver transplant surgery asserting that they are tender to the touch. In the August 2009 rating decision, the RO granted service connection for scars, residuals of liver transplant, and evaluated them as zero percent disabling effective May 27, 2009, the date of claim. After considering all the evidence, the Board finds that the preponderance of the evidence is against assigning a compensable disability rating for the Veteran’s scar residuals from his liver transplant. The Veteran’s scars from his liver transplant are on his abdomen and in his right axilla area. Scars in these areas are evaluated under Diagnostic Codes 7801 through 7805. Diagnostic Code 7801 evaluates burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear in an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.) warrants a 10 percent rating. A 20 percent rating requires an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.). A 30 percent rating requires an area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.). A 40 percent rating requires an area or areas of 144 square inches (929 sq. cm.) or greater. A qualifying scar is one that is nonlinear and deep, and is not located on the head, face, or neck. Note (1) to Diagnostic Code 7801 provides that a deep scar is one associated with underlying tissue damage. 38 C.F.R. § 4.118. Diagnostic Code 7802 evaluates burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are superficial and nonlinear in an area or areas of 144 square inches (929 sq. cm.) or greater warrant a 10 percent evaluation. Note (1) to Diagnostic Code 7802 provides that a superficial scar is one not associated with underlying soft tissue damage. Note (2) to Diagnostic Code 7802 provides that if multiple qualifying scars are present, a separate evaluation is assigned for each affected extremity based on the total area of the qualifying scars that affect that extremity. Id. Diagnostic Code 7804 provides a 10 percent rating for 1 or 2 scars that are unstable or painful. A 20 percent rating is warranted for 3 to 4 scars that are unstable or painful and a 30 percent disability rating assigned for 5 or more scars that are unstable or painful. Note (1) to Diagnostic Code 7804 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Id. Diagnostic Code 7805 provides that other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800-04 require the evaluation of any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04 under an appropriate diagnostic code. Id. Although in his May 2009 statement, the Veteran report the scars are tender to the touch, the medical evidence does not support this statement such that a compensable disability rating is warranted under Diagnostic Code 7804. Moreover, the evidence does not show the scars are deep such that a compensable rating is warranted under Diagnostic Code 7801 either. The Veteran’s treatment records show his scars are healed without evidence of being unstable, deep or painful. VA examinations in September 2008 and June 2009 related to his liver transplant do not show he made any complaints related to the scars from his liver transplant. Furthermore, VA examinations conducted in May 2014 and January 2016 support this finding and show no findings that the Veteran’s scars, which were superficial and non-linear, were painful or unstable. The Board acknowledges that these examinations were conducted after the last Statement of the Case was issued and that no Supplemental Statement of the Case has been provided for the Board to consider this evidence. However, these examinations were conducted in conjunction with, and used by the AOJ to adjudicate, subsequent claims for an increased rating for the Veteran’s service-connected scars even though he had a claim pending on appeal on this issue, and the AOJ has continued to deny a compensable disability rating. Thus, this action by the AOJ cured any procedural due process matter. The Board does not find that remand to correct such an error is warranted. See Winters v. West, 12 Vet. App. 203 (1999); VAOPGCPREC 16-92 (O.G.C. Prec. 16-92); 57 Fed. Reg. 49,747 (1992). Furthermore, the evidence does not show that a compensable evaluation under Diagnostic Code 7802 is warranted. The VA examinations conducted in March 2014 and January 2016 show that there are four scars – one in the right axilla area of the right upper extremity measuring 14 cms x 1 cm, and three on the anterior trunk (abdomen) – one running vertically at the epigastric area measuring 9 cms x 2 cms, a second v-shaped scar running horizontally at the upper abdomen measuring 40 cms x 2 cm and a third round-shaped scar at the right lower quadrant measuring 2 cms in diameter. The total squared surface area of the scar involving the right upper extremity is 14 cm2. The total squared surface area of the scars involving the anterior trunk (abdomen) is 98 cm2. Consequently, a compensable disability rating is not warranted under Diagnostic Code 7803 as neither total squared surface area involved is 929 cm2 or more. Finally, none of the medical evidence demonstrates that the Veteran’s scars cause limitation of functioning of the affected parts, including the right upper extremity and the abdomen such that a rating should be made under the appropriate rating under Diagnostic Code 7805. REASONS FOR REMAND 1. Entitlement to service connection for hypertension, to include as secondary to exposure to herbicide agents is remanded. Under current VA regulations, hypertension is not a disability which warrants presumptive service connection due to exposure to herbicides. In a 2010 update, the National Academy of Sciences (NAS) concluded that there was “limited or suggestive evidence of an association” between hypertension and herbicide exposure. The Federal Register reflects that relatively few of the positive findings were statistically significant and the findings overall are limited by the inconsistency of the results, the lack of controls, and other methodology concerns. 75 Fed. Reg. 81,332, 81,333 (December 27, 2010). Nonetheless, a VA opinion as to whether it is as likely as not that the Veteran’s hypertension is due to his herbicide exposure would be helpful to the Board. 2. Entitlement to service connection for acquired psychiatric disorder, to include PTSD & MDD is remanded. The Veteran has claimed service connection for PTSD. However, he has been diagnosed to have major depressive disorder (either single episode or recurrent) by private examiners (see psychiatric evaluations from March 2004 and August 2014), VA treating providers (see June 2003 Psychiatry Note ) and on VA examination in March 2008. Although the Veteran provided a favorable opinion in October 2012 from his private physician, she does not appear to be a mental health professional and she did not provide an adequate rationale for the opinion provided that the Veteran’s major depression is service-connected secondary to his experience at war. Rather this opinion appears to be contrary to the other evidence of record that does not show mental health treatment until 2002 (more than 30 years after his discharge from active duty) and, when he did receive treatment, he only reported a history of three to four years of mental health symptoms and did not relate any of this to his military service. Rather most of his reported problems appear to be related to his health issues, specifically his service-connected liver problems. (See March 2008 VA examination report, August 2014 psychiatric evaluation.) Although the Veteran was provided a VA examination in March 2008, no nexus opinion was provided as to whether the Veteran’s major depressive disorder was related to his military service or secondary to any service-connected disabilities. Consequently, such should be sought on remand. However, prior to obtaining an opinion, private mental health treatment records should be obtained as the current VA treatment records show the Veteran has been treated by an outside provider for his mental health problems. The matters are REMANDED for the following action: 1. Please make efforts to obtain outstanding VA and non-VA treatment records. Ask the Veteran to complete a VA Form 21-4142 for all private mental health care providers who have treated him since service. 2. Thereafter, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any acquired psychiatric disorder. The examiner must opine whether it is at least as likely as not any acquired psychiatric disorder diagnosed since 2007, and to specifically include major depressive disorder and PTSD, is related to an in-service injury, event, or disease, including whether it is related to the Veteran’s combat service in the Republic of Vietnam. In addition, the VA examiner should provide an opinion whether it is at least as likely as not that any diagnosed acquired psychiatric disorder found on examination is (1) proximately due to service-connected disability, or (2) aggravated beyond its natural progression by service-connected disability. In rendering an opinion, the examiner should specifically consider and discuss the Veteran’s service-connected liver transplant, but not exclude consideration of his now service-connected diabetes mellitus, type II, and complications, for which service connection was effective December 11, 2013. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his hypertension. The examiner must opine whether it is at least as likely as not the Veteran’s hypertension is related to in-service exposure to herbicide agents. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S.M. Kreitlow