Citation Nr: 18154143 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 16-49 672 DATE: November 29, 2018 ORDER Entitlement to an effective date prior to October 27, 2014, for the grant of service connection for cirrhosis of the liver with portal hypertension to include an initial rating in excess of 50 percent is denied. Entitlement to an effective date prior to November 18, 2011, for the grant of service connection for thrombocytopenia with leukopenia is denied. For the period prior to February 9, 2012, an initial compensable rating for thrombocytopenia with leukopenia is denied. For the period from February 9, 2012, to January 6, 2013, entitlement to an initial rating of 30 percent for thrombocytopenia with leukopenia is granted. For the period since January 7, 2013, entitlement to an initial rating of 70 percent for thrombocytopenia with leukopenia is granted. FINDINGS OF FACT 1. The Veteran submitted an informal claim for entitlement to service connection for cirrhosis of the liver with portal hypertension on October 27, 2014. 2. The evidence of record does not reveal that the Veteran had a history of two or more episodes of ascites, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy (erosive gastritis) at any time during the relevant appeal period. 3. The earliest date entitlement to service connection for thrombocytopenia with leukopenia arose was November 18, 2011. 4. For the period prior to February 9, 2012, the evidence of record does not reveal that the Veteran had a stable platelet count between 70,000 and 100,000 without bleeding. 5. For the period from February 9, 2012, to January 6, 2013, the evidence of record reveals that the Veteran had a stable platelet count between 70,000 and 100,000, without bleeding. 6. For the period since January 7, 2013, the evidence of record reveals that the Veteran had a stable platelet count between 20,000 and 70,000, without bleeding. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than October 27, 2014, for the grant of service connection for cirrhosis of the liver with portal hypertension have not been met. 38 U.S.C. §§ 5101, 5110 (2012); 38 C.F.R. §§ 3.155, 3.400 (2018). 2. The criteria for an initial rating in excess of 50 percent for cirrhosis of the liver with portal hypertension have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7312 (2018). 3. The criteria for an effective date earlier than November 18, 2011, for the grant of service connection for thrombocytopenia with leukopenia have not been met. 38 U.S.C. §§ 5101, 5110 (2012); 38 C.F.R. §§ 3.155, 3.400 (2018). 4. For the period prior to February 9, 2012, the criteria for an initial compensable rating for thrombocytopenia with leukopenia have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.117, Diagnostic Code 7705 (2018). 5. For the period from February 9, 2012, to January 6, 2013, the criteria for an initial rating of 30 percent for thrombocytopenia with leukopenia have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.117, Diagnostic Code 7705 (2018). 6. For the period since January 7, 2013, the criteria for an initial rating of 70 percent for thrombocytopenia with leukopenia have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.117, Diagnostic Code 7705 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1980 to May 1986. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In a statement received in April 2018, the Board notes that the Veteran’s representative raised additional claims which have not been adjudicated by the RO. Specifically, the Veteran’s representative indicated that earlier effective dates for the grants of service connection for C8 nerve root impingement and a mood disorder and entitlement to special monthly compensation is warranted. These claims have not been adjudicated by the Agency of Original Jurisdiction (AOJ), and are therefore referred to the AOJ for appropriate action. Effective Date The applicable law and regulations concerning effective dates state that, except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The terms “claim” and “application” refer to formal or informal communication, in writing, requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Generally, the date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). A specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his duly authorized representative, a Member of Congress, or a person acting as next friend of the claimant who is not sui juris, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 C.F.R. § 3.155(a). In Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009), the Court of Appeals for Veterans Claims (Court) has held that an informal claim must be (1) a communication in writing that (2) expresses an intent to apply for benefits, and (3) identifies the benefits sought. See also Brannon v. West, 12 Vet. App. 32, 35 (1998) (holding that before VA can adjudicate original claim for benefits, “the claimant must submit a written document identifying the benefit and expressing some intent to seek it”). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). The Court has held that the failure to consider evidence which may be construed as an earlier application or claim, formal or informal, that would have entitled the claimant to an earlier effective date is remandable error. Lalonde v. West, 7 Vet. App. 537, 380 (1999); see also 38 U.S.C. § 7104(a); Servello v. Derwinski, 3 Vet. App. 196, 198-99 (1992). The Court has held, however, that the Board is not required to “conjure up issues that were not raised by the appellant.” Brannon v. West, 12 Vet. App. 32 (1998). Increased Rating Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Board notes that while the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the Veteran’s disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). It is also noted that staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability or the same manifestations of disability under multiple diagnoses (i.e., pyramiding) is to be avoided. 38 C.F.R. § 4.14. Cirrhosis In this case, with regard to the grant of service connection for cirrhosis, the Veteran has asserted that he is entitled to an effective date of August 13, 2010, the date he submitted a VA Form 21-526b, Veteran’s Supplemental Claim, for entitlement to service connection for residuals of hepatitis C. Service connection for hepatitis C was ultimately granted effective August 13, 2010. Thereafter, the Veteran submitted a VA Form 21-4138, Statement in Support of Claim, received on October 27, 2014, and specifically claimed entitlement to cirrhosis of the liver secondary to hepatitis C. In an April 2016 rating decision, service connection was awarded for cirrhosis of the liver with portal hypertension and a rating of 50 percent was awarded pursuant to Diagnostic Code 7312, effective October 27, 2014, the date the informal claim for benefits was received. 38 C.F.R. § 4.114. The Veteran disagreed with the effective date assigned for the grant of service connection for cirrhosis and indicated that the 50 percent rating should be awarded effective August 13, 2010, the date service connection was established for hepatitis C. The RO also considered the rating assigned for cirrhosis in a Statement of the Case (SOC) issued in August 2016. In an October 2016 rating decision, the Veteran was notified that his cirrhosis of the liver with portal hypertension was combined with his hepatitis C rating effective March 19, 2013, and a 30 percent rating was assigned for hepatitis C, and the effective date for the grant of the 50 percent rating for cirrhosis of the liver with portal hypertension was continued effective October 27, 2014. As an initial matter, the Board notes that Diagnostic Code (DC) 7354 pertains to hepatitis C and provides for 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. 38 C.F.R. § 4.114. DC 7312 provides ratings for cirrhosis of the liver, primary biliary cirrhosis, or cirrhotic phase of sclerosing cholangitis. Cirrhosis with symptoms such as weakness, anorexia, abdominal pain, and malaise is rated 10 percent disabling. Cirrhosis with portal hypertension and splenomegaly, with weakness, anorexia, abdominal pain, malaise, and at least minor weight loss, is rated 30 percent disabling. Cirrhosis with history of one episode of ascites, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy (erosive gastritis), is rated 50 percent disabling. Cirrhosis with 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, is rated 70 percent disabling. Cirrhosis with 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), is rated 100 percent disabling. A Note to DC 7312 provides that, for rating under DC 7312, documentation of cirrhosis (by biopsy or imaging) and abnormal liver function tests must be present. 38 C.F.R. § 4.114. For purposes of evaluating conditions, the term “substantial weight loss” means a loss of greater than 20 percent of the individual’s baseline weight, sustained for three months or longer. The term “minor weight loss” means a weight loss of 10 to 20 percent of the individual’s baseline weight, sustained for three months or longer. In addition, the term “inability to gain weight” means that there has been substantial weight loss with an inability to regain it despite appropriate therapy, and “baseline weight” means the average weight for the two-year period preceding onset of the disease. 38 C.F.R. § 4.112. A review of the evidence of record reflects that cirrhosis of the liver was indicated at a VA examination in February 2012; however, there was no evidence of portal hypertension, splenomegaly, persistent jaundice, hepatic encephalopathy, or ascites. Moreover, cirrhosis was not documented by biopsy or imaging as of that date. As such, a separate rating is not warranted for cirrhosis as of the date of this examination VA treatment reports reflect that the Veteran had splenomegaly in March 2013; however, the report was negative for ascites and hepatic encephalopathy. The RO found that a separate rating for cirrhosis was not warranted as of that date as there was no weakness, anorexia, abdominal pain, malaise, or minor weight loss. However, a 30 percent rating was assigned for a combination of hepatitis C and cirrhosis from March 19, 2013, which is the combined evaluation for hepatitis C and cirrhosis. Of note, the Veteran was scheduled for a liver biopsy to confirm a diagnosis of cirrhosis at that time but the biopsy was canceled. VA treatment reports reflect that cirrhosis of the liver was confirmed in June 2014 when a magnetic resonance imaging (MRI) of the abdomen with contrast revealed non-enhancing hepatic cysts with no cancer lesions, cirrhosis, gallbladder stones, polyp, portal hypertension, and splenic enlargement. The Veteran was assessed with cirrhosis secondary to hepatitis C, a history of esophagitis, splenomegaly secondary to portal hypertension and thrombocytopenia, a history of asymptomatic gallstones, asymptomatic diaphragmatic hernia, and hepatitis C. Encephalopathy was noted in March 2016. At a VA examination in April 2016, the examiner reported that the Veteran was treated at VA in March 2016 and had a diagnosis of hepatitis related cirrhosis complicated by encephalopathy, leg edema, fatigue, non-bleeding small varices noted on endoscopy, encephalopathy, thrombocytopenia, and cirrhosis with varices. The Veteran was noted to be using various medications for hepatitis C maintenance. The symptoms attributable to chronic or infectious liver disease were reported to be daily fatigue, intermittent anorexia, intermittent nausea, daily arthralgia, and daily right upper quadrant pain. He had to restrict salt in his diet. He did not have incapacitating episodes with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain due to liver conditions in the past twelve months. The examiner noted daily weakness, daily abdominal pain, hepatic encephalopathy, portal hypertension, and splenomegaly. With regard to an earlier effective date for the grant of service connection for cirrhosis, the Board has carefully reviewed all of the evidence of record, but finds that the assignment of an effective date prior to October 27, 2014, is not warranted for the grant of service connection. As noted, the Veteran indicated that the effective date of service connection should be the date he submitted a claim for benefits for residuals of hepatitis C on August 13, 2010. As indicated, service connection for hepatitis C was established effective August 13, 2010. In this case, the RO assigned an effective date of October 27, 2014, for the grant of service connection for cirrhosis with portal hypertension, the date he submitted an informal claim for benefits and specified the residuals which were associated with hepatitis C. In fact, cirrhosis of the liver was diagnosed via imaging at VA in August 2014. However, as noted, the Veteran may not be awarded a separate rating for the same symptoms attributable to both hepatitis C and cirrhosis. Hepatic encephalopathy was not documented in the VA treatment records until March 2016. Prior to that date, the other signs and symptoms of cirrhosis are either duplicative of the symptoms of hepatitis C or do not meet the criteria for a separate rating. As indicated, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The RO afforded the Veteran the benefit of the doubt and awarded a 50 percent rating for cirrhosis effective October 27, 2014, the date that the informal claim for benefits was received. While the record reflects that the diagnosis of cirrhosis was rendered prior to that date, in August 2014, as noted, the same signs and symptoms should not be used as the basis for evaluation under DC 7354 and under a DC for sequelae. In fact, the evidence does not reflect that a separate compensable rating was warranted for cirrhosis until March 2016 when encephalopathy was noted at VA. However, the RO assigned an effective date of October 27, 2014. As such, the Board finds that an effective date prior to October 27, 2014, is not warranted for the grant of service connection for cirrhosis of the liver. Therefore, the Board finds that the preponderance of the evidence is against the claim for an earlier effective date and that claim is denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). With regard to the rating assigned, having reviewed the relevant evidence, a rating in excess of 50 percent is not warranted at any time during the pendency of the appeal. The evidence of record does not reveal that the Veteran had a history of two or more episodes of ascites, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy (erosive gastritis) at any time during the relevant period on appeal to warrant the next higher 70 percent rating. In sum, a rating in excess of 50 percent is not warranted any time during the pendency of the appeal. Therefore, the Board finds that the preponderance of the evidence is against the claim for a higher initial rating and the claim is denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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). Thrombocytopenia In this case, with regard to thrombocytopenia, the Veteran has asserted that he is entitled to an effective date of August 13, 2010, the date he submitted a VA Form 21-526b, Veteran’s Supplemental Claim, for entitlement to service connection for residuals of hepatitis C. Thereafter, the Veteran submitted a VA Form 21-4138, Statement in Support of Claim, received on October 27, 2014, and claimed entitlement to service connection for thrombocytopenia secondary to hepatitis C. In an April 2016 rating decision, service connection was awarded for thrombocytopenia with leukopenia and a rating of 70 percent was awarded effective October 27, 2014, the date the informal claim for benefits was received, pursuant to Diagnostic Code 7705. 38 C.F.R. § 4.118. The Veteran disagreed with the effective date assigned for the grant of service connection for thrombocytopenia and indicated that the 70 percent rating should be awarded effective August 13, 2010. The RO also considered the ratings assigned in the SOC dated in August 2016. In an October 2016 rating decision, a noncompensable rating was assigned effective November 18, 2011, a 30 percent rating was assigned effective March 28, 2012, and a 70 percent rating was assigned effective December 9, 2013, for the service-connected thrombocytopenia. As an initial matter, the Board notes that thrombocytopenia is rated pursuant to Diagnostic Code 7705 and provides that a 0 percent rating is assigned for a stable platelet count of 100,000 or more, without bleeding; a 30 percent rating is warranted for a stable platelet count between 70,000 and 100,000, without bleeding; a 70 percent rating is warranted for a platelet count between 20,000 and 70,000, not requiring treatment, without bleeding; and a 100 percent rating is warranted for a platelet count of less than 20,000, with active bleeding, requiring treatment with medication and transfusions. 38 C.F.R. § 4.117, Diagnostic Code 7705. VA treatment reports dated in January 2011 reflect the Veteran’s platelet count was 142,000. A VA treatment report dated in November 2011 reflects that a diagnosis of thrombocytopenia was rendered. On February 9, 2012, the Veteran platelet count was 90,000. On February 23, 2012, the Veteran’s platelet count was 90,000. In April 2012, the Veteran’s platelet count was 96,000. In August 2012, the Veteran’s platelet count was recorded as 78,000. In October 2012, the Veteran’s platelet count was 79,000. In November 2012, the Veteran’s platelet count was 81,000. On October 12, 2012, the Veteran’s platelet count was 74,000; on October 17, 2012, the Veteran’s platelet count was 79,000. In November 2012, the Veteran’s platelet count was 81,000. On January 7, 2013, the Veteran’s platelet count was 65,000. In October 2013, the Veteran’s platelet count was 52,000. In December 2013, the Veteran’s platelet count was 45,000. In February 2014, the Veteran’s platelet count was 54,000. In May 2014, the Veteran’s platelet count was 41,000. In July 2014, the Veteran’s platelet count was 54,000. On August 1, 2014, the Veteran’s platelet count was 56,000; on August 22, 2014, the Veteran’s platelet count was 42,000. On March 6, 2015, the Veteran’s platelet count was 43,000; on March 12, 2015, the Veteran’s platelet count was 43,000. At a VA examination in April 2016, the Veteran’s platelet count was between 20,000 and 70,000. With regard to the effective date assigned, the Board has carefully reviewed all of the evidence of record, but finds that the assignment of an effective date prior to November 11, 2011, is not warranted for the grant of service connection for thrombocytopenia with leukopenia. As noted, the Veteran indicated that the effective date of service connection should be the date he submitted a claim for service connection for residuals of hepatitis C on August 13, 2010. The RO initially assigned an effective date of October 27, 2014, the date the Veteran’s informal claim for thrombocytopenia was received. However, in an October 2016 rating decision, the effective date of service connection was amended to November 18, 2011, the first date that the evidence of record reflects a diagnosis of thrombocytopenia. Prior to November 18, 2011, there is simply no evidence of a diagnosis of thrombocytopenia. As indicated, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. As such, the Board finds that the earliest date that service connection may be granted is November 18, 2011, the date that entitlement arose. Although a claim for residuals of hepatitis C was submitted in August 2010, the evidence of record does not reflect that a diagnosis of thrombocytopenia was rendered prior to November 18, 2011, which is the currently-assigned effective date. For the foregoing reasons, the record does not provide a basis for assignment of an effective date earlier than November 18, 2011, for thrombocytopenia with leukopenia. Therefore, the Board finds that the preponderance of the evidence is against the claim for an earlier effective date and that claim is denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). With regard to the claim for increased ratings, for the period prior to February 9, 2012, the evidence of record does not reveal that the Veteran had a stable platelet count between 70,000 and 100,000, without bleeding. The only relevant evidence, dated in January 2011, reflects that the Veteran’s platelet count was recorded as 142,000. As such, an initial compensable rating is not warranted prior to February 9, 2012. For the period from February 9, 2012, to January 6, 2013, the Veteran’s platelet count ranged between 74,000 and 96,000. The records do not reflect a stable platelet count between 20,000 and 70,000, to warrant a higher schedular rating. As such, a rating of 30 percent and no more is warranted for the relevant time period on appeal. For the period since January 7, 2013, the Veteran’s platelet count ranged between 41,000 and 65,000. The records do not reflect a stable platelet count less than 20,000, with active bleeding, requiring treatment with medication and transfusions. As such, a rating of 70 percent and no more is warranted for the relevant time period on appeal. In sum, for the time period prior to February 9, 2012, an initial compensable rating is not warranted; for the period from February 9, 2012, to January 6, 2013, a rating of 30 percent and no more is warranted; and for the period since January 7, 2013, a rating of 70 percent and no more is warranted. (Continued on the next page)   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). KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Cryan, Counsel