Citation Nr: 18160250 Decision Date: 12/26/18 Archive Date: 12/26/18 DOCKET NO. 15-23 336 DATE: December 26, 2018 ORDER Entitlement to an initial non-compensable disability rating for service-connected hepatitis C for accrued benefits purposes is denied. FINDING OF FACT The evidence of record at the time of the Veteran’s death does not show any treatment of hepatitis C during the applicable period on appeal. CONCLUSION OF LAW The criteria for entitlement to an initial non-compensable disability rating for service-connected hepatitis C for accrued benefits purposes have not been met. 38 U.S.C. §§ 1155, 5103A, 5107, 5121; 38 C.F.R. §§ 4.1, 4.114, Diagnostic Code 7345 (1976). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1967 to October 1969. The Veteran died in May 1994 and the Appellant is the Veteran’s surviving spouse. The Appellant has previously established entitlement to accrued benefits as a surviving spouse. This claim was previously before the Board in February 2013. At that time, the Board reopened and granted the Veteran’s March 1973 previously denied claim for service connection for hepatitis. Based on the February 2013 Board decision, the regional office effectuated service connection for hepatitis and assigned a noncompensable disability rating, effective the date the Veteran’s claim to reopen was received in 1989. The Appellant disagreed with the assigned rating and perfected an appeal. She argued in her notice of disagreement that the Veteran’s hepatitis C had led to his death, that he vomited approximately three times per day, had high blood pressure, and back pain which she contended were all symptoms of his hepatitis C. The Board notes at the outset that it has been acknowledged that the Veteran’s death was the result of complications from his hepatitis C and for that reason, the appellant was granted service connection for the cause of the Veteran’s death. However, for a compensable rating to be granted based for accrued benefits purposes, it must be shown that the Veteran’s hepatitis C symptomatology met the criteria for a compensable rating during the period on appeal (August 1989 until May 1994). However, the criteria for a compensable rating must be shown by the evidence of record at the time of his death. Accrued benefits are periodic monetary benefits, other than insurance and servicemen’s indemnity, to which an individual was entitled at death under existing ratings or decisions and under laws administered by VA, or those based on evidence in the file at date of death and due and unpaid, that shall, upon the death of such individual, be paid to the surviving spouse or other appropriate party. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. Generally, claims for accrued benefits must be adjudicated based on evidence that was physically present or constructively present in a Veteran’s claims folder at the time of death. 38 U.S.C. § 5121(a); see also Hyatt v. Shinseki, 566 F.3d 1364 (2009). Specifically, in a claim for accrued benefits, the Board is prohibited from considering medical evidence received after the date of the Veteran’s death unless such records are considered to be in the constructive possession of VA at the time of death and thus full under an applicable exception. 38 U.S.C. § 5121(a); 38 C.F.R. § 3.1000(a), (d)(4); Hayes v. Brown, 4 Vet. App. 353, 360-61 (1993). The Board will apply the rating criteria which was in effect at the time of the Veteran’s death in May 1994. Prior to July 2, 2001, hepatitis was evaluated under the general rating formula for the digestive system. 38 C.F.R. § 4.114, Diagnostic Code 7345 (1976). A noncompensable disability rating was warranted where the condition had healed and was asymptomatic. A 10 percent disability rating was warranted where there was demonstrable liver damage with mild gastrointestinal disturbance. A 30 percent disability rating was warranted where there was minimal liver damage with associated fatigue, anxiety, and gastrointestinal disturbance of lesser degree and frequency but necessitating dietary restriction or other therapeutic measures. A 60 percent disability rating was warranted where there was moderate liver damage and disabling recurrent episodes of gastrointestinal disturbance, fatigue, and mental depression. A 100 percent disability rating was warranted where there is marked liver damage manifest by liver function test and marked gastrointestinal symptoms, or with episodes of several weeks duration aggregating three or more a year and accompanied by disabling symptoms requiring rest therapy. As noted, the evidence to be considered is only evidence that was in the claims file at the time of the Veteran’s death in 1994 or otherwise constructively possessed.. An August 1992 VA examination addendum opinion states that in light of the Veteran’s severe infectious hepatitis during active service, he should have at least a noncompensable rating for residuals of hepatitis. Unfortunately, this opinion only addresses the severity of the hepatitis C during service. It does not address the severity of the disease during the course of the appeal, or any residuals. The medical evidence from during the appeal period is scant and addresses only treatment for mental health conditions, repair of the ruptured globe of the left eye, hypertension, and anemia. There is no medical evidence addressing the severity of the Veteran’s hepatitis C at the time of his death. As noted, above, the Board is prohibited from considering any evidence that was not of record at the time of the Veteran’s death. Given this limitation, there is no basis for finding that a compensable rating was warranted for hepatitis C for accrued benefits purposes. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of a compensable disability rating. At minimum, a compensable disability rating requires that the Veteran’s hepatitis condition demonstrate liver damage with mild gastrointestinal disturbance. The evidence of record at the time of the Veteran’s death does not show that he experienced symptoms or receive treatment for his hepatitis prior to death. While the Veteran may have experience gastrointestinal distress between 1982 and 1985, characterized by stomach pain and burning, and at times nausea, these symptoms were associated with his ulcer rather than his hepatitis. Significantly, during several treatment encounters, the Veteran reported improvement in these symptoms when he took his ulcer medications. Further, the Veteran was noted to demonstrate normal blood and urine testing in 1985 and a normal hepatic profile in 1988. While the Veteran did experience slightly elevated alkaline phosphate results during the 1985 VA examination, the examination shows no indication that the Veteran experienced liver damage or required treatment for hepatitis at that time. Moreover, these records predate the filing of the Veteran’s claim to reopen, so they do not address the severity of his hepatitis C during the course of the appeal. Based on the evidence of record during the applicable appeal period, the Board no evidence to support a compensable rating. Accordingly, a compensable disability rating for hepatitis C is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. I. Sims, Associate Counsel